This article examines the implications of the differing remedies provided by tort and contract law. Part I describes the traditional major duties owed by an insurer to an insured and outlines the remedies currently provided in most jurisdictions for the breach of these duties. Part II gives special attention to the insurer's implied duty of good faith and fair dealing; it reviews the historical origins of the duty and describes the alternative ways to categorize it. Part III argues that the duty of good faith and fair dealing should be treated as a contract duty, but that courts should administer the contract scheme of remedies more flexibly in insurance cases. After presenting the rationale for the alternative approach in Part IV, the article suggests two final refinements of this theory in Part V.
Robert H. II Jerry, Remedying Insurers' Bad Faith Contract Perforance: A Reassesment, 18 Conn. L. Rev. 271, 322 (1986)