Levelling The Playing Field Of Insurance Agreements In Texas: Adopting Comparative Bad Faith As An Affirmative Defense Based On The Insured’s Misconduct

Abstract

Analyzes the history and current status of the implied duty of good faith and fair dealing in insurance contracts in Texas and propounds a modification of the doctrine by imposing an affirmative defense of comparative bad faith. Part I traces the inception and development of the implied duty of good faith in insurance settings. Part II analyzes the extension of the duty of good faith and fair dealing to acts attributable to the insured and the adoption of the doctrine of comparative bad faith in various jurisdictions. Part III argues for adoption of comparative bad faith as an affirmative defense or independent tort. Part IV shows how this affirmative defense would be applied in Texas.