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Kelly & West News

Dear New Dad: Time to Set Up Your Will

June 12, 2019 new dad with infant baby why you need a Will Kelly & West attorneys

Once you become a parent, “create a Will” should definitely go on your to-do list! If you’re a new dad this year, here is what you need to know.

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The Top 5 Personal Injury Claims

November 13, 2018 personal injury terms

Personal injury is a fancy way of saying you got hurt — and it’s something someone else caused or could have prevented. Accidents happen every single day, but if you get hurt in one, you may feel concerned or worried about paying for your medical bills or time you missed from work.

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What’s the Difference Between an Executor and a Beneficiary and Can They Be the Same?

November 20, 2018

Executors and beneficiaries have a unique relationship under the law. An executor manages a deceased person’s estate and a beneficiary is an individual who will inherit that property. While the executor and beneficiary can be the same person, you should give it some thought when drawing up your Will.

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10 Frequently Asked Questions concerning Workers’ Compensation Claims and Benefits in North Carolina

October 24, 2018

Getting injured on the job is stressful enough. What are the first steps? Where do you seek treatment and how do you get paid? Below are the answers to all those questions and more. Whatever happens, stay calm, file an injury report, and get treatment.  Or call Kelly & West if you have a serious injury and are unlikely to return to work.

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What is an Ethical Will and How Can You Create One?

September 18, 2018

As you may know, a Will is a legal document in which you express your wishes about your property after death. The document helps you pass on your physical belongings and money.

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Important Medical Documents for Your Young Adult Child

August 15, 2018

Imagine if your child ended up in a hospital and could not make decisions for himself. Of course, you’d want to step in to help. But if your child is a legal adult, age 18 or older, you will not be able to do so. In fact, you wouldn’t even be told any specifics about his condition due to HIPAA regulations.

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What You Can Do about Nursing Home Abuse

July 24, 2018 A man helps an older woman stand up at nursing home

While most nursing homes offer excellent care, some residents suffer abuse or neglect while living there. Abuse is intentional infliction of injury, physically or mentally, while neglect refers to a failure to provide a person with the care and services necessary to ensure freedom from harm or pain.

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5 Things a Newspaper Column Got Wrong about Wills in NC

July 12, 2018

While we enjoy reading the newspaper and support our local organization, we were distressed recently while reading a column about creating a Will. Here are some of the statements we found along with accurate information for our North Carolina friends.

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How Long-Term Care Affects Your Property Deeds in North Carolina

June 26, 2018

Growing old is inevitable, so set up for your future now. From age 65 and up, there is a 75 percent chance you or your loved one will require long-term care. According to a CareScout survey from 2017,  living in a semi-private room in a nursing home can cost more than $80,000 a year. Many […]

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What’s the Difference Between a Suspended and Revoked License?

February 26, 2019

If you have multiple driving violations, you will begin to hear about either a license suspension or revocation. Both of these punishments occur due to reckless or irresponsible driving.

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    What You Should Know About Bad Faith InsuranceYour insurance company is legally obligated to deal with you “fairly and in good faith.”  When you file insurance claims, such as claims for bodily injury and/or property damage under your auto policy, that good faith obligation is tested.  After all, the insurance company’s bottom line and your best interests are at odds.  The more claims a company denies and the less it pays o claims it accepts, the more profit it makes.  But you’ve paid your premiums and deserve to be fully compensated for your losses up to the limits of your coverage. 

    Most often, insurance companies investigate and administer claims professionally, deny only those claims they reasonably believe are invalid, and attempt to evaluate and settle valid claims fairly.  Sometimes, they get it wrong, even though they have acted fairly and in good faith.  When that’s the case, the policyholder can file a breach of contract lawsuit and go to trial to recover the compensation to which he/she is entitled under the policy.  

    If the insurance company does not act fairly and in good faith, the policyholder has grounds to file an insurance bad faith lawsuit and, if successful, recover not only what is due under the policy but also either punitive or multiple damages.  Here is what you should know about bad faith insurance lawsuits in North Carolina.

    What Laws Support an Insurance Bad Faith Lawsuit?

    In North Carolina, there are two sources of insurance bad faith law, state statutes and common law (court decisions).  A policyholder can file an insurance bad faith lawsuit based on either or both, but where the court determines that both apply, the policyholder must elect to recover under one or the other.

    Statutory Insurance Bad Faith

    Under the North Carolina Unfair and Deceptive Trade Practices Act, a policyholder can recover “treble damages,” three times the amount of any damages caused by the insurance company’s “unfair” or “deceptive” behavior.  Such behavior is not limited to, but definitely includes, any of the fourteen “unfair claim settlement practices” defined in a section of North Carolina’s insurance statutes.  

    Among those unfair claim settlement practices are:

       *     misrepresenting pertinent facts or policy provisions relating to the coverages at issue,

       *     failing to acknowledge and act reasonably promptly upon communications with respect to claims,    

       *     refusing to pay a claim without conducting a reasonable investigation of all available information,

       *     failing to affirm or deny coverage of claims within a reasonable time after proof-of-loss statements are completed,

        *     forcing the policyholder to resort to litigation without attempting to settle in good faith,

        *     attempting to settle a claim for  less than a reasonable man would have believed he was entitled,

         *     failing to promptly settle claims under one coverage where liability is reasonably clear (e.g., property damage claims) in order to influence settlement of claims under another coverage (e.g., personal injury claims) and

         *     failing to promptly and reasonably explain the basis in the policy or applicable law for denial of a claim or the offer of a  compromise settlement.

    Common Law Insurance Bad Faith

    In addition to liability based on those North Carolina statutes, North Carolina courts have held that an insurance company is responsible for bad faith wrongdoing when it refuses to pay policy benefits after receiving and recognizing a valid claim or otherwise acts solely in its own interest, provided, that there must also be some “aggravating” or “outrageous” misconduct by the company that harms the policyholder.  Such additional misconduct has been described as including “fraud,” “malice,” “gross negligence,” “willful and wanton conduct,” or “reckless disregard.”  Those can be difficult to prove and have to be considered and determined based on the facts in each case.  

    The theory in the bad faith case decisions is that a judgment awarding the policyholder only what is due under the policy (for breach of contract) does nothing to discourage the insurance company (and other insurers) from engaging in such bad behavior when responding to future claims.  Under those circumstances, the court’s judgment may also require that the company pay the policyholder punitive damages that may be much higher than the value of the original claim or the policy limits.

    Should You Consider Filing an Insurance Bad Faith Lawsuit?

    North Carolina does not recognize a claim for bad faith against someone else’s insurance company.  Also, your insurance company may treat you “fairly and in good faith” yet still deny your claim in whole or in part.  When it accepts liability, it may still honestly and reasonably disagree with your calculation of your covered losses.  

    As you should understand, based on this very brief introduction to the applicable law, distinguishing between good faith (though rigorous) and bad faith insurance company conduct is difficult and can only be done on a case-by-case basis.  It requires the kind of analysis that can best be done by an experienced attorney.  

    Our attorneys at Kelly & West have helped hundreds of clients with their insurance claims.  If you have filed a claim and feel that your insurance company is ignoring you, unnecessarily delaying its response or otherwise treating you unfairly, you are welcome to contact us at Kelly & West and arrange for a free consultation.