Progressive total-loss settlements in North Dakota: how to negotiate a fair offer

North Dakota regulates first-party automobile total losses through three layered authorities: the Unfair Claim Settlement Practices statute at N.D. Cent. Code § 26.1-04-03, the implementing claim-handling regulation at N.D. Admin. Code 45-04-04, and the common-law tort of first-party bad faith recognized by the North Dakota Supreme Court in Corwin Chrysler-Plymouth, Inc. v. Westchester Fire Insurance Co., 279 N.W.2d 638 (N.D. 1979). North Dakota does not impose a separate licensing requirement on a policyholder's appraiser invoked under the policy's appraisal clause. N.D. Cent. Code § 26.1-04-03 — Unfair Claim Settlement Practices. The statute defines acts that constitute unfair claim settlement practices when committed in conscious disregard of the policy or with such frequency as to indicate a general business practice, including: misrepresenting pertinent facts or insurance policy provisions; failing to acknowledge and act with reasonable promptness on claim communications; failing to adopt and implement reasonable standards for the prompt investigation of claims; refusing to pay claims without conducting a reasonable investigation; failing to affirm or deny coverage of claims within a reasonable time; not attempting in good faith to effectuate prompt, fair, and equitable settlements when liability is reasonably clear; and compelling insureds to institute litigation to recover amounts due. N.D. Admin. Code 45-04-04 — Claim-Handling Regulation. The regulation establishes specific standards for first-party automobile total-loss settlements: (a) Comparable vehicles. The insurer shall determine actual cash value using the cost of two or more comparable automobiles available to the insured in the local market area, of like kind, quality, age, and mileage. (b) Dealer quotations. The insurer may, in lieu of comparable vehicles, base the settlement on two or more written quotations from licensed dealers in the local market area. (c) Statistically valid valuation source. The insurer may rely on a statistically valid fair-market-value source for the local market area. (d) Adjustments. Adjustments for vehicle condition, mileage, prior damage, or required repair must be measurable, discernible, itemized, and specified in dollar amounts in the claim file. (e) Right of Recourse. If the insured cannot purchase a comparable vehicle in the local market area for the offered amount, the insurer shall reopen the claim and either locate a comparable, pay the difference, offer a replacement, or invoke the policy's appraisal clause. Corwin Chrysler-Plymouth, Inc. v. Westchester Fire Insurance Co., 279 N.W.2d 638 (N.D. 1979). The North Dakota Supreme Court recognized first-party bad faith as a tort separate from breach of contract, holding that an insurer breaches its duty of good faith and fair dealing when it acts unreasonably in investigating, evaluating, or paying a covered claim. McKay v. Farmers Union Mutual Insurance Co., 663 N.W.2d 174 (N.D. 2003), refined the framework. Compensatory damages are available; punitive damages require a separate showing of "oppression, fraud, or malice" under N.D. Cent. Code § 32-03.2-11. N.D. Cent. Code § 39-05-20.2 — Salvage Title Threshold. A vehicle for which the cost of repairs to its pre-loss condition equals or exceeds 75% of its retail value before the loss must be branded as a salvage vehicle. The 75% threshold sets the operational total-loss decision point. North Dakota does not impose a separate licensing requirement on a policyholder's appraiser invoked under the policy's appraisal clause.