Little Princess Express Cab Corp. v. American Transit Insurance

12 A.D.3d 266, 785 N.Y.S.2d 430, 2004 N.Y. App. Div. LEXIS 13745

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 2004
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 13, 2003, which granted defendant’s motion for summary judgment dismissing the complaint, and order, same court and Justice, entered November 28, 2003, which denied plaintiffs motion for summary judgment, unanimously affirmed, with costs.

Plaintiff insured failed to make any showing that a demand for settlement was made, and that the insured lost an actual opportunity to settle the claim at a time when all serious doubts about its liability were removed, each of which is a requirement for a bad-faith action for failure to settle (Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 454 [1993]). On the contrary, defendant insurer produced competent proof that it had offered to pay the full policy limits prior to trial, but that the plaintiff in the underlying personal injury action refused to settle. Defendant’s failure, if any, to keep plaintiff apprised of the developments in the case against it is insufficient in itself to constitute bad faith (Smith v General Acc. Ins. Co., 91 NY2d 648, 655 [1998]). Concur—Mazzarelli, J.P., Andrias, Friedman, Marlow and Sweeny, JJ.