Dayton Court: You Don't Need a Hired Expert to Prove Your Insurer Acted in Bad Faith

Published May 11, 2023 · Ohio Appeals Courts

You paid for uninsured-motorist coverage for exactly this moment: a driver with no insurance hit you, and now your own company is supposed to step into that driver's shoes. Instead, the adjuster lowballs, stalls, or ignores what your doctors say. When you finally sue for bad faith, the insurer's lawyers say your case must be thrown out because you did not hire an insurance-industry expert to tell the jury what a good adjuster does.

On March 31, 2023, the Second District Court of Appeals in Dayton rejected that argument. In Crawford v. American Family Insurance Co., 2023-Ohio-1069 (2d Dist.), a Montgomery County case, the court held that Ohio has no blanket rule requiring expert testimony to prove an insurer acted in bad faith.

What happened

Leslie Crawford was injured in an August 2018 crash with a driver she alleged was uninsured. She had uninsured-motorist (UM) coverage with American Family, and she sued both the other driver and her own insurer. Her complaint had three parts: negligence against the other driver, a contract claim against American Family for UM benefits, and a separate claim that American Family had handled her claim in bad faith.

The contract claims eventually settled. The bad-faith claim did not. American Family moved for summary judgment, a request that the court end the case without a trial. The Montgomery County Common Pleas Court granted it on a single ground: in the court's view, whether the insurer acted in bad faith was a question that required expert testimony, and none had been offered.

Why the appeals court reversed

The Second District, in an opinion by Judge Lewis, reversed for several independent reasons.

There is no blanket expert rule. The trial court cited no case law for its rule. The insurer pointed to decisions requiring expert testimony in professional-negligence cases against insurance agents. But even in that area, Ohio's appellate courts are not unanimous, and this was not a professional-negligence case. The appeals court also found no Ohio authority treating claims adjusters as the kind of professionals, like doctors, whose conduct jurors cannot evaluate without expert help. Ohio's evidence rule on expert witnesses permits expert testimony when it would help a jury; it does not require it. Whether an expert is needed depends on the case.

The insurer had said the opposite. In the trial court, American Family itself had written that the plaintiff "is not required to have an expert to proceed to trial on a bad faith claim." It changed its position on appeal.

The adjuster supplied the standards. Even if testimony about claims-handling standards were required, the court found it was already in the record, from American Family's own adjuster. In his deposition, he described the duty to "fully and fairly investigate, evaluate objectively," and make a reasonably justifiable offer; the impropriety of a "cookie-cutter" approach; the need to consider pain and suffering and the insured's own statement; and the responsibility to treat insureds fairly. A jury, the court said, could understand that and decide whether the company acted in bad faith.

The court also refused the insurer's request to affirm on a different ground, that the claim was "fairly debatable." The claims file Ms. Crawford filed under seal, nearly 2,000 pages, arrived at the court of appeals in an envelope that had never been opened. Because the trial court had not reviewed that evidence, the appeals court sent the case back for further proceedings rather than decide the question itself.

The case has been remanded. The decision does not say American Family acted in bad faith; it says Ms. Crawford is entitled to have that question decided on the evidence.

What "bad faith" means in Ohio

Your insurance company owes you a duty of good faith in handling your claim, and a breach of that duty is a tort, a civil wrong separate from the insurance contract. The Supreme Court of Ohio set the standard in Zoppo v. Homestead Insurance Co., 71 Ohio St.3d 552, 1994-Ohio-461: an insurer fails to act in good faith when its refusal to pay is "not predicated upon circumstances that furnish reasonable justification therefor." The insurer does not have to intend to cheat you. An unjustified refusal, or a failure to reasonably investigate before taking a position, can be enough. We explained the standard in our post on when you can sue your own insurance company.

This duty matters most in UM and underinsured-motorist (UIM) claims, where your own company stands in for the at-fault driver and has a financial interest in paying you less. Our guide chapter on using your own insurance explains how those coverages work under R.C. 3937.18, and our chapter on dealing with insurance adjusters covers what to expect from the person handling your claim.

Why this decision matters

Insurance companies know that hiring a claims-handling expert can cost an injured person thousands of dollars. A rule requiring one in every bad-faith case would price many policyholders out of holding their insurer accountable. In the Second District, which covers Montgomery, Greene, Miami, Clark, Darke, and Champaign counties, Crawford removes that barrier.

It also points to where the best evidence often is: inside the insurer's own claims file and in the testimony of its own adjuster. Notes, reserve decisions, internal evaluations, and the adjuster's explanations of company standards can show whether a refusal to pay was reasonably justified. Insurers resist producing those materials, and getting them takes persistence.

What this means for you

If your own insurer is refusing to pay a fair amount on an uninsured or underinsured motorist claim, keep every letter, email, and offer. Write down dates of calls and what was said. Do not assume you need to hire an expensive expert before anyone will take your bad-faith claim seriously. And remember that your policy may set its own deadline for a UM claim, which is one more reason to get advice early. Our UM/UIM claims page explains those claims, and our post on insurers that stall past the policy deadline addresses another common tactic.