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Extra-Contractual Liability Law
workers’ compensation benefits to pending claims). Others have looked to similar statutes in neighboring jurisdictions. See Coyne v. Allstate Insurance Co., 771 F.Supp. 673 (E.D.Pa.1991) (Pennsylvania bad faith statute applies only to conduct after effective date); Okkerse by Okkerse v. Prudential Property and Cas. Ins. Co., 625 A.2d 663, 665-66 (Pa. Super. 1993) (same).
The IFCA also seems to allow claims adjusters to be sued personally. Specifically, the statute allows “insurers” to be sued, but defines that term broadly enough to include the claims representative working on the case:
“Insurer” means any individual, corporation, association, partnership or other legal entity which issues, executes, renews or delivers an insurance policy in this State, or which is responsible for determining claims made under the policy. “Insurer” shall not include an insurance producer as defined in section 3 of P.L.2001, c.210 (C.17:22A-28) or a public entity.
(emphasis added). In fact, this definition is so broad that other individuals could theoretically be sued, including an agent selling policies (if involved with the claim at issue) and perhaps even a defense lawyer assigned to the case. To date, no New Jersey courts have addressed, let alone resolved, such questions.
Certainly, the threat of personal liability may have a chilling effect on the handling of claims. This alone should be sufficient cause for concern over this aspect of the statute.
What’s more, there may be good strategic reason for insureds to sue an adjuster personally. Diversity jurisdiction necessary to remove cases to Federal Court can be destroyed by naming an adjuster who resides in New Jersey. The insurer’s only recourse would then be to argue that the joinder is “fraudulent.” See Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir.1985). But given the relatively clear wording of the statute’s provisions defining an insurer to include an “individual,” such fraudulent joinder arguments do not seem winnable.
Of course, given the ongoing development of guiding jurisprudence on these questions, and it is too soon to tell whether the above concerns will be met. We do know, however, that the IFCA will leave ample room for argument.
Scott Tredwell is a Senior Partner with McCormick & Priore in Philadelphia, PA. Contact him at: stredwell@mccormickpriore.com.
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FDCC ANNUAL INSIGHTS 2023