Calo v. State Farm Mutual Automobile Insurance

227 A.D.2d 429, 642 N.Y.S.2d 906, 1996 N.Y. App. Div. LEXIS 5124

Opinion

In an action to recover damages for bad faith in refusing to settle an insurance claim, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), entered May 23, 1995, as denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the defendant’s motion for summary judgment. There is a question of fact as to whether the insurer’s investigation of the claim constituted a " 'gross disregard’ of the insured’s interests — that is, a deliberate or reckless failure to place on equal footing the interests of its insured with its own interest when considering a settlement offer” (Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 453). Moreover, an insured’s inability to satisfy the entire excess judgment does not require the dismissal of the complaint (see, Pavia v State Farm Mut. Auto Ins. Co., 183 AD2d 189, 200-202, revd on other grounds 82 NY2d 445, supra). Miller, J. P., O’Brien, Copertino and Pizzuto, JJ., concur.