2008AP2595 Brethorst v. Allstate Property & Casualty Ins. Co.

Listen to this article

Insurance
Bad faith

An insured may file a bad faith claim without also filing a breach of contract claim.

“[W]hile Jones held that a bad faith claim need not be accompanied by a breach of contract claim, it did not hold that a first-party bad faith claim need not be accompanied by a breach of contract. Instead, the court in Jones focused on the proximate result standard for damages in a bad faith claim; its analysis revolved around the damages stage of proceedings. Jones, 249 Wis. 2d 623, ¶35. In the instant case, however, the court focuses on a different, earlier stage of the proceedings, and determines whether a claim may even be brought when a party has a choice between a breach of contract accompanied by a bad faith claim, or a bad faith claim alone. What damages may be available to Brethorst in the final analysis——if she prevails——cannot be determined until she has first been allowed to proceed with her claim——and to proceed with discovery. If she is allowed to go forward and prevails, then the principles and rationale in DeChant and Jones will control what damages are recoverable.”

Affirmed and Remanded.

2008AP2595 Brethorst v. Allstate Property & Casualty Ins. Co.

Prosser, J.

Attorneys: For Appellant: Ryan, James M., Milwaukee; Gehring, Jason P., Milwaukee; For Respondent: Knurr, Timothy S., Racine

Full Text