Newham v. Nationwide Mutual Insurance

61 A.D.2d 1067, 403 N.Y.S.2d 147, 1978 N.Y. App. Div. LEXIS 10752

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1978
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered December 23, 1976 in Sullivan County, which granted a motion for summary judgment dismissing the complaint. The plaintiffs seek to secure damages from the defendant upon the ground that it failed to defend and otherwise properly carry out its contractual obligations as insurer because of bad faith in failing to offer the policy limits ($10,000) in settlement of a negligence action brought against the plaintiffs by a third party. It is undisputed that the plaintiff, Paul Newham, advised the defendant that he struck the car of one Dnistrian causing injury to one Du Bois because the Dnistrian car suddenly backed into the path of his vehicle. Special Term found that based upon that plaintiff’s version the plaintiffs could not complain that the carrier failed to offer the full amount of the policy (see Pipoli v United States Fid. & Guar. Co., 38 AD2d 249, 250, affd 31 NY2d 679; Colbert v Home Ind. Co., 35 AD2d 326). In addition to the reasons set forth by Special Term as to an estoppel, this record demonstrates that although the defendant was aware of probable negligent conduct on the part of the plaintiff, there was no basis for completely rejecting his version of the accident. The defendant did offer 85% of the policy and the plaintiffs have not established an issue of fact for the jury as to bad faith. Order affirmed, without costs. Mahoney, P. J., Kane, Main, Larkin and Herlihy, JJ., concur.