Doherty v. Merchants Mutual Insurance

Centra and Carni, JJ. (dissenting).

We respectfully dissent and begin our analysis with the well-settled proposition that a jury question exists in most cases where the issue is whether an insurer’s good faith obligation has been met (see 2 NY PJI2d 4:67, at 1016 [2010]). Bad faith is generally proven by evidence largely circumstantial in nature (see Cappano v Phoenix Assur. Co. of N.Y, 28 AD2d 639 [1967]). Like many other actions involving bad faith, it is a rare occasion to uncover a “smoking gun” and instead the proof of these cases requires the careful and collective evaluation of a…