.

Defense Digest

Navigating New Jersey’s New Bad Faith Landscape for the Modern SIU

Defense Digest, Vol. 28, No. 3, October 2022

October 1, 2022

by Matthew J. Burdalski

Key Points:

  • New Jersey’s Insurance Fair Conduct Act now imposes stringent and dangerously vague duties and requirements on New Jersey insurers and special investigators.
  • The passage of the Act brings New Jersey in line with several other states and jurisdictions in creating a statutory cause of action for bad faith in certain first-party claims.
  • When SIU investigates claims, best practices will be crucial in establishing good faith and avoiding the punitive consequences of violation of the Insurance Fair Conduct Act.

Earlier this year, Governor Phil Murphy signed into law Senate Bill 1559, now known as the New Jersey Insurance Fair Conduct Act (Act), that created a new statutory cause of action for bad faith in first-party insurance claims in the state of New Jersey. Prior to passage of the Act, bad faith claims in New Jersey were governed by the seminal case of Pickett v. Lloyd’s, 621 A.2d 445 (N.J. 1993). There, the court found that, to establish bad faith, a claimant had to show the “absence of a reasonable basis for denying benefits of a policy and the defendant’s knowledge or reckless disregard of the lack of a reasonable basis for denying the claim.” Under Pickett, a denial of coverage could not be considered bad faith so long as there was a reasonable basis to support the denial. This provided claimants with a remedy for an insurer’s reckless and unreasonable actions, but it also allowed insurers to deny claims where there were reasonable questions or law or fact.

The passage of the Act significantly reduces the burden to establish bad faith in New Jersey. While the bill was initially drafted to cover all first-party claims, the final enacted version is limited to UM and UIM claims. The Act creates a private civil cause of action against an automobile insurer for:

  1. any unreasonable delay or unreasonable denial of a claim for payment of benefits under an insurance policy; or
  2. any violation of the provisions of section 4 of N.J.S.A. 17:29B (the New Jersey Unfair Claims Settlement Practices Act or “UCSPA”).

Significantly, “Insurer” is defined under the Act as any individual, corporation, association, partnership, or other legal entity which issues, executes, renews or delivers an insurance policy in New Jersey, or which is responsible for determining claims made under the policy. Arguably, this could be interpreted to include individual claims handlers or investigators as insurers for the purposes of the Act.

Penalties for violation of the Act are severe. The Act provides that a successful plaintiff shall be entitled to: (1) actual damages caused by the violation of the Act, which shall include, but need not be limited to, actual trial verdicts that shall not exceed three times the applicable coverage amount; and (2) pre-and post-judgment interest, reasonable attorney’s fees, and reasonable litigation expenses. In short, treble damages plus fees and costs.

Frighteningly vague, the Act does not provide any guidance at all as to what might be considered an unreasonable delay or denial. Further, violations of the UCSPA were previously enforced only upon a showing that they were committed by an insurer with routine frequency. The Act has stripped that element, specifically stating that a claimant “shall not be required to prove that the insurer’s actions were of such a frequency as to indicate a general business practice.” In sum, one singular violation of the UCSPA could be used by a claimant to establish a violation of the Act by an insurer.

The UCSPA sets forth 15 specific examples of deceptive acts or practices that could constitute a violation of the Act if committed by an insurer. Relevant examples include: misrepresenting pertinent facts or policy provisions; failing to adopt and implement reasonable standards for the prompt investigation of claims; refusing to pay claims without conducting a reasonable investigation based upon all available information; failing to affirm or deny coverage of claims within a reasonable time; and not attempting in good faith to effectuate fair settlements of claims in which liability has become reasonably clear. Again, in the context of the Act, there is no requirement to show the above violations occur at such frequency to indicate a general business practice.

Similar statutes passed in other jurisdictions have been used to attempt to hold individual insurance employees personally liable for bad faith. In the matter of Keodalah v. Allstate Ins. Co., 449 P.3d 1040 (Wash. 2019), the Washington Supreme Court narrowly found that a similar bad faith bill did not create a cause of action against individual claims handlers. The Colorado Supreme Court also refused to hold individual insurance employees liable in Skillet v. Allstate Ins. Co., 505 P.3d 664 (Colo. 2022). These narrow decisions show that the plaintiff’s bar is willing and eager to push these vague statutes to their limits. The vagueness of the Act will likely invite comparable attempts by plaintiffs in New Jersey.

The New Jersey Insurance Fair Conduct Act is new, vague and harsh. The future landscape of the Act, its impact and implications are uncertain. What is certain is that claimants and the plaintiff’s bar will test the limits of the Act. The insurance industry, and SIU in particular, must be ready to adapt and meet the challenge.

*Matt is a shareholder in our Mount Laurel, New Jersey, office. He can be reached at 856.414.6035 or mjburdalski@mdwcg.com.

Defense Digest, Vol. 28, No. 3, October 2022 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.