CAPTAIN
You gonna get used to wearing them chains after a while, Luke. Don’t you never stop listening to them clinking, ’cause they gonna remind you what I been saying for your own good.
LUKE
(sarcastically)
I wish you’d stop being so good to me, Cap’n.
CAPTAIN
Don’t you ever talk that way to me.
Pause, then hitting him.
CAPTAIN (contd.)
NEVER! NEVER!
Luke rolls down hill; to other prisoners.
CAPTAIN (contd.)
What we’ve got here is failure to communicate. Some men you just can’t reach. So you get what we had here last week, which is the way he wants it. Well, he gets it. I don’t like it any more than you men.
* * *
Towards the end of the movie, Luke takes a final stab at freedom – stealing a dump truck and taking flight. After his dramatic escape from the Florida chain gang prison, Luke abandons the truck and enters a church, only to be surrounded by police moments later. Feeling that his life is no longer worth living, walks to a window facing the police and mocks the Captain by repeating the first part of his speech (“What we’ve got here is a failure to communicate.”). [2] He is immediately shot in the neck by Boss Godfrey.
The phrase ranks at No. 11 on the American Film Institute list, AFI’s 100 Years… 100 Movie Quotes.
* * *
On Friday, today, I am lecturing on First and Third Party Bad Faith as part of a New York State Bar Association Continuing Legal Education Coverage Seminar. In preparing my remarks, the iconic bit of dialogue from Cool Hand Luke (quoted in context above)surfaced from somewhere deep in the recesses of my psyche: “What we’ve got here is a failure to communicate.” New York is a pretty friendly “bad faith” jurisdiction (and if you want my written submission, give me a shout). But I’ve studied cases across the country in both first and third party contexts. And what most often gets insurers and their lawyers in trouble is a failure to communicate; a failure to address the concerns of the insured head-on.
Savvy insureds, public adjusters, claim advisors and counsel often barrage Claim Professionals with complaints–about delay, the consequences of delay, the clarity of liability, and the resulting hardships of a failure to address a liability or property damage claim promptly. All too often, these pleas are met with silence, delay and, more important, a failure to require support for the claims being asserted. A failure to communicate, a failure to address these missives, often results in an ugly paper trail when bad faith is later claimed for extra-contractual damages. Worse, often, within the claim team, a failure to communicate “bad facts’ up the chain results in later and ugly surprises. Perhaps, the best example is the failure of State Farm in State Farm v. Campbell to take on board (within the upper echelons of management) that their own accident investigator had judged the accident to rest completely and unequivocally with their insured. Ultimately, the US Supreme Court decided that bad faith damages could not exceed a single digit multiplier of actual or compensatory damages (absent “reprehensible” conduct). But still, we’re talking mega-millions.
The moral, my friends, is to address every query, politely, with questions and demands for support. The paper trail, the prettier it looks, is the best defense to bad faith claims in New York–and elsewhere.
And that’s it for this This and That. If you have better solutions, please let me know.