Summary
finding no causation based on the insurer's failure to solicit or make an offer of settlement at the insured's request
Summary of this case from Cotton States Mutual Ins. Co., v. BrightmanOpinion
39690.
DECIDED OCTOBER 10, 1962.
Action for damages. Bulloch Superior Court. Before Judge Usher.
Spivey Carlton, Milton A. Carlton, for plaintiff in error.
Neville Neville, William J. Neville, contra.
The allegations of the plaintiff's petition were insufficient to state a cause of action for the reason that the claim for damages upon which the cause of action was predicated was too remote, conjectural, contingent and speculative to afford the basis for recovery.
DECIDED OCTOBER 10, 1962.
This was a suit to recover damages sustained by the plaintiff insured as a result of the defendant insurance company's alleged acts of bad faith in refusing to attempt to negotiate a settlement of a personal injury damage suit against the plaintiff insured. Briefly stated, the plaintiff's petition disclosed that the party injured in a collision involving plaintiff's vehicle filed suit in the Superior Court of Bulloch County, seeking damages in the amount of $35,488 against the plaintiff who was covered by a policy of automobile liability insurance in the amount of $10,000 issued by the defendant company; and that pursuant to the terms of this policy, the defendant insurance company assumed charge of the defense of the case and made preparation for trial. The petition alleged that the plaintiff "requested defendant to try to settle the case" but that the defendant refused to attempt negotiations and advised plaintiff of its opinion that the case should proceed to trial, and that the case did in fact proceed to trial, resulting in a verdict for the injured party in the amount of $17,744, said sum being $7,744 in excess of the coverage afforded by the policy; and that after an unsuccessful appeal of the case the defendant paid $10,000 on the judgment plus accrued interest and costs of court. The petition further alleged that the excess judgment was settled by the plaintiff for the sum of $5,834.52; and plaintiff in his petition sought to recover this amount and the additional sum of $10,000 as general damages against the defendant. The trial court overruled the defendant's general demurrer and certain of its special demurrers to the petition as amended and the exception is to that judgment.
It is settled in a great number of jurisdictions in this country that, notwithstanding the reservation in a policy of automobile liability insurance by the insurer of the exclusive right to make such investigation, negotiation and settlement of any claim or suit against the insured as it deems expedient, the capricious refusal of a liability insurance company to entertain an offer of compromise within the policy limits made on behalf of the injured party where no regard is given to the position of the insured should the case proceed to trial and a judgment in excess of the policy limits be rendered, constitutes an act of bad faith on the part of the insurer and subjects it to a suit for damages by the insured. See Annotation, 40 ALR2d 168.
That the law of Georgia is in accord with such holding is indicated by the decision of this court in Georgia Cas. c. Co. v. Reville, 97 Ga. App. 888 ( 104 S.E.2d 643). In that case it was held that the evidence adduced by the plaintiff insured was sufficient to show bad faith on the part of the defendant insurer where it had refused an offer of settlement of $5,000, the amount of the policy limits, which was made by the injured party after a verdict had been entered against the insured in the amount of $15,000 where there was testimony by the vice-president of the defendant insurance company to the effect that the insurance company had refused said offer because it could only lose $5,000, the amount of the policy limits, regardless of the outcome of the pending appeal in that case.
The cause of action in the case under consideration, however, is not predicated upon the refusal of the defendant insurance company to consider an offer of settlement or compromise made on behalf of the injured party but is based upon the alleged failure of the defendant insurer to solicit or make an offer of settlement of the suit at the request of the plaintiff insured. It is not alleged that any offer of compromise or settlement was made to the plaintiff insured or the defendant insurer or their legal counsel by the injured party or her attorneys at any time; and there are no facts alleged which show that the defendant insurer could have successfully effected a settlement of the suit within the policy limits if it had attempted to do so. In essence the plaintiff insured is seeking in this case to hold the defendant insurer liable for the excess judgment on the mere supposition that if the defendant insurer had made an offer of compromise, then possibly the suit against the insured could have been settled within the policy limits. Under these circumstances the allegations of the plaintiff's petition are insufficient to state a cause of action for the reason that the claim for damages upon which the cause of action is predicated is too remote, conjectural, contingent and speculative to afford the basis for recovery. Pannell v. Stark, 27 Ga. App. 104 ( 107 S.E. 496); Tovell v. Legum, 207 Ga. 193, 197 ( 60 S.E.2d 339), and cases therein cited.
Accordingly, the trial court erred in overruling the general demurrer to the petition.
Judgment reversed. Nichols, P. J., and Frankum, J., concur.