California Lawyers
Negotiating with your property insurance insurer concerning a business claim can be time-consuming. And, since “time is money,” it can also be expensive. If you or your California business is negotiating (arguing) with your insurance insurer, you know that at least one fact is true: It can usually afford a delay in resolution of the claim much better than can your business. It has deeper pockets. What you really want is a reasonable settlement offer, and sooner rather than later would be nice.
In California, the Carrier May Demand a “White Waiver”
Within the settlement process, however, there is sometimes a hitch. Before it communicates an offer of settlement to you, your insurance company may demand that you and/or your business sign a special waiver acknowledging that its communication of an offer cannot be later used to establish bad faith against the insurer. Sometimes referred to in California litigation circles as a “White waiver,” the special waiver gets its name from a 1985 decision by the California Supreme Court [see White v. Western Title Ins. Co., 40 Cal. 3d 870, 710 P.2d 309, 221 Cal. Rptr. 509 (1985)], in which the Court said that the contractual relationship between an insured and its insurer does not end when litigation begins. Accordingly, if the insurer makes a “low-ball” offer, the offer itself can be used by the insured as evidence of bad faith on the part of the insurance company.
Should You Sign Such a Waiver?
Faced with a “White waiver,” the answer of whether to sign it is the same as is offered for many legal questions: “It depends.” Generally speaking, if the communication between you and the insurer has been friendly and positive, if the discussions that you have had with the adjuster or insurance executive show a reasonable attitude by the insurer toward the claim, it may be in your best interest to execute such a White waiver. One suggestion here, however: Have the waiver expire in a reasonable, stated, time period. That way, you aren’t waiving the right should the insurer turn out to be negotiating in bad faith. After all, the White decision was never intended to allow an insurance company to withhold performance until the policyholder waived its contract rights.
If the insurer declines to talk unless a White waiver is provided, then signing it may not be a good idea. Refusal to talk is itself a showing of bad faith. Signing the waiver allows the insurer to act in a fashion that is contrary to insurance law.
When the insurer demands a White waiver, it is asking the policyholder to take on faith that the offer that is about to be communicated is a reasonable one. If that were so clear, particularly if the negotiations have turned to acrimony, why would it need the waiver?
What if the Insurer Does Not Require a Waiver?
If no such White waiver is required, and if the insurer’s offer is patently unreasonable, a policyholder should consider using the White decision to hold the insurer accountable in a bad faith claim. One should always expect the insurer to offer a rigorous defense.
Takeaway
The White decision was never intended to place a shield around all communications between an insurance company and its insured. The requirement that it act in good faith continues after a dispute arises over coverage or a claim. If your insurance company shows signs of making a reasonable offer or shows signs of moving up significantly from its prior settlement offers, you may want to consider signing the White waiver. If, on the other hand, there is any doubt that this is going to happen, perhaps you should consider whether:
• To condition the waiver on the carrier’s making an offer at or above some minimum confidential number, and/or
• To consider making the waiver apply only for a short period.
Insurance Negotiation Involves Complex Legal Issues
While some businesses choose to negotiate insurance claims without the aid of a skilled, experienced attorney, many find that in doing so they fail to come out ahead. As the saying goes, they “often leave money on the table.” Negotiating takes skill and patience, particularly where there is any question that the insurer may not be dealing in good faith. Are you or your business involved in an insurance claims dispute? Have you been presented with a White waiver? Having experienced, aggressive legal counsel on your side can be crucial to protect your interests. For many years now, CKB VIENNA LLP has represented business, large and small, in all sorts of insurance disputes in California. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909.980.1040 – or complete our online form.