The Foundation Series · Recap · July 2026

What Your Insurer Owes You

Five parts, one argument — reduced to a single checklist of what the duty of good faith actually requires, and the case behind each line.

Five parts, one argument. The covenant of good faith lives in every contract and protects reasonable expectations (Part 1); its content — good faith measured objectively, against the exercise of discretion — was worked out in the courts (Part 2); in insurance, the special relationship hardens that covenant into duties enforceable in tort (Part 3); those duties resolve into specific claims-handling obligations, every one of which condemns the biased expert (Part 4); and the biased-expert problem is the same in ERISA and non-ERISA claims alike, even as the remedies for it diverge sharply (Part 5).

Here is the whole of it in one place. Each duty below is a real, enforceable obligation, keyed to the case that anchors it. The note beneath each marks whether the same protection survives when your coverage comes through an employer and is governed by ERISA — where, more often than not, the protection exists but the remedy is thinner.

  1. Pay without unreasonable denial or delay.

    Not withhold what it owes to gain time or leverage.

    Anchor  Gruenberg v. Aetna (1973); Major v. Western Home Ins. Co. (2009)

    Under ERISA  Benefits recoverable — but no bad-faith tort or punitive damages.

  2. Give your interests equal weight.

    Weigh your interest at least as heavily as its own whenever it exercises claims discretion — the normative root of every other duty.

    Anchor  Egan v. Mutual of Omaha Ins. Co. (1979)

    Under ERISA  Survives as the plan’s fiduciary duty of loyalty and impartiality.

  3. Investigate — fully, fairly, and thoroughly.

    Look for what supports your claim, not only reasons to deny it; investigate every coverage basis; interview the witnesses; and it cannot offload the duty to a vendor. Its conduct is judged under the totality of the circumstances — there is no checklist that immunizes it.

    Anchor  Egan; Wilson v. 21st Century Ins. Co. (2007); Mariscal; Hughes; Jordan; Frommoethelydo

    Under ERISA  A plan “may not arbitrarily refuse to credit reliable evidence” (Nord) and must explain any disagreement with your doctor.

  4. Deal honestly — don’t mislead or misrepresent.

    No false statements about the facts or its investigation, no misleading you by strategic silence, no lying about the purpose of its own procedures — by commission or omission.

    Anchor  Fletcher (1970); Davis v. Blue Cross (1979); Sarchett v. Blue Shield (1987); Tomaselli (1994)

    Under ERISA  The “full and fair review” duty and the explain-your-reasons rule.

  5. Disclose — within limits.

    Where the law requires it, tell you what you need to protect rights that ignorance would forfeit. A freestanding duty to disclose is contested; the sturdier protection is the ban on misleading you by silence, above.

    Anchor  Davis; Sarchett; Spray, Gould & Bowers v. Associated Int’l (1999)

    Under ERISA  Access to your claim file and the relevant documents.

  6. Select experts honestly.

    Choose them for qualification and independence — never for a predictable answer. An insurer cannot “manufacture a genuine dispute” by hiring an expert to produce one; grounds raised as “a pretext or rationalization” are bad faith; and the telltale is an expert who reaches the insurer’s answer regardless of the evidence.

    Anchor  Chateau Chamberay Homeowners Assn. v. Associated Int’l Ins. Co. (2001); Wilson; Cardiner

    Under ERISA  Explicit — a plan may not hire or pay an expert “based upon the likelihood that the individual will support the denial of benefits.”

Same duty, different price. Every “under ERISA” note above marks a surviving duty, not a surviving remedy. Even where an ERISA plan owes the same obligation, a cheated claimant generally recovers only the benefit that was owed all along, plus perhaps attorney’s fees — not the tort and punitive remedies that make bad faith expensive in the individual market. The duties converge; the consequences do not.

The recap, in two editions

The recap publishes in two companion editions on Expert Bias Report. The free edition carries the checklist above and the plain-language case for each line; the paid edition adds the full-authority version — pinpoint citations, the ERISA counterpart for every duty, and the roadmap for the practical series that follows.

Free edition · The checklist

The Duty of Good Faith, Assembled: What Your Insurer Owes You

The whole argument in one place — the six duties, each an enforceable obligation keyed to the case that anchors it, with the note on where the protection survives into ERISA and where the remedy thins out.

Read the free edition →

Paid edition · The complete checklist

The Duty of Good Faith, Assembled: The Complete Checklist

The full-authority version: each duty stated with its controlling California authority and pinpoint citation, the ERISA counterpart column, and the setup for the next series — the twelve discovery objections insurers raise to keep expert-bias evidence hidden, and how to answer each.

Read the paid edition →

What’s next: from principle to practice. This series established that the use of a biased expert is unlawful — a breach of the duty of good faith on every duty at once. Proving it is the other half, and the proof — what an insurer pays its experts, how often it retains them, how reliably they reach its preferred result — sits almost entirely in the insurer’s own files. The next series takes the practical turn: the twelve principal objections insurers deploy to block discovery of expert bias, one by one, and how to overcome each.

The series

  • Part 1 — The covenant in every contract. What the law means by an implied promise of good faith — what it protects, and against what.
  • Part 2 — What “good faith” means. The Summers–Burton debate and the practical answer California worked out that the academy never reached.
  • Part 3 — Why insurance is different. How the same covenant becomes, in the insurance relationship, the source of a tort-backed duty.
  • Part 4 — The attendant duties. Good faith in claims handling resolves into concrete obligations, each of which condemns the biased expert.
  • Part 5 — ERISA and non-ERISA. The same bias problem under federal benefits law; two regimes, the same suspicion of the interested decisionmaker, sharply different remedies.
  • Recap — What your insurer owes you. The whole argument as one checklist. (This page.)

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Related

The framework these duties operationalize — the inference-of-bias standard, the four factors, and the rebuttable presumption — is laid out in Demer’s Paradigm for Assessing Biased Insurance Experts (Advocate Magazine, 2024), and applied across the Practical Tips.

This page recaps The Foundation Series as published on Expert Bias Report. Every duty and quotation derives from the project’s primary reading of the controlling opinions — Gruenberg, Egan, Wilson, Chateau Chamberay, Cardiner, and the honesty and investigation cases named above — verified in the drafting of Parts 1–5. The ERISA counterparts derive from the project’s analysis in treatise/12-regulatory/12-04-erisa-regulations.md (29 C.F.R. § 2560.503-1(b)(7); Nord). Educational and informational only; not legal advice.

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