United States Fidelity & Guaranty Co. v. Evans

156 S.E.2d 809, 116 Ga. App. 93, 1967 Ga. App. LEXIS 713

• Court: Court of Appeals of Georgia
• Decided: June 6, 1967
• Docket: 42540
• Status: Published

Opinions

Hall, Judge.

1. There is no requirement that before bringing this kind of action the insured must have paid off the judgment. Smoot v. State Farm Mut. Auto. Ins. Co., 299 F2d 525. The allegations were sufficient to withstand the general demurrers. See Cotton States Mut. Ins. Co. v. Phillips, 112 Ga. App. 600 (145 SE2d 643); Cotton States Mut. Ins. Co. v. Phillips, 110 Ga. App. 581, 583 (2) (139 SE2d 412); Cotton States Mut. Ins. Co. v. Fields, 106 Ga. App. 740 (128 SE2d 358).

2. The only question remaining is whether the jury was authorized by the evidence to find that the insurer violated any duty to the insured in failing or refusing to accept the offers of settlement.

The insurer takes the position that this is a suit in contract and that decisions of this court (cited in dissent) relating to the penalty provisions of our Insurance Code (formerly § 56-706, now 56-1206) control the present case. We disagree. The penalty provisions of the Insurance Code are inapplicable and provide no measure of recovery; the insured’s suit is not upon the contract but rather in tort and naturally involves a duty and an alleged breach of that duty. Cotton States Mut. Ins. Co. v. Phillips, 110 Ga. App. 581, supra, certiorari denied, 110 Ga. App. 895; Smoot v. State Farm Mut. Auto. Ins. Co., 299 F2d 525, supra.

What then is the duty? Many jurisdictions “have coupled in their discussions the terms ‘bad faith’ and ‘negligence’, seeming to use them as disjunctive or alternative tests. [See Francis v. Newton, 75 Ga. App. 341 (43 SE2d 282)]. It is partly on this account—also partly because the same states will occasionally refer to one test and upon other occasions to the other— that the conclusion must be drawn that mere terminology means little. It is rather the factual situation which is significant in the light of the duty which exists, and normally the trier of fact must make the determination of liability or nonliability.” 7A Appleman, Insurance Law and Practice 576, § 4712.

The standard suggested by a noted legal scholar is: “With respect to the decision whether to settle or try the case, the insurer, acting through its representatives, must use such care as would have been used by an ordinarily prudent insurer with no policy limit applicable to the claim. The insurer is negligent in failing to settle if, but only if, such ordinarily prudent insurer would consider that choosing to try the case (rather than to settle on the terms by which the claim could be settled) would be taking an unreasonable risk—that is, trial would involve chances of unfavorable results out of reasonable proportion to the chances of favorable results.” Keeton, Liability Insurance and Responsibility for Settlement, 67 Harv. L. Rev. 1136, 1147.

We will assume without deciding that the insurer did not act arbitrarily or capriciously in refusing the settlement prior to verdict. We turn therefore to a consideration of the insurer’s refusal to settle within the policy limits after verdict and prior to the appeal.

The insurer contends that as a matter of law there could be no lack of “good faith” unless the appeal was frivolous. We disagree. “It is not sufficient for the insurer to consult its own self-interest. As a professional in the defense of suits, it must use a degree of skill commensurate with such professional standards. As the champion of the insured, it must consider as paramount his interests, rather than its own, and may not gamble with his funds. Its relationship is somewhat of a fiduciary one, and the liability is greater than indicated by some of the earlier holdings. Thus, if the insurer refuses to settle a claim because it believes that the insured is not liable, it is nevertheless answerable for such refusal if its belief was arbitrary or capricious.” 7A Appleman, Insurance Law and Practice 553, § 4711; Hart v. Republic Mut. Ins. Co., 152 Ohio St. 185 (87 NE2d 347); Critz v. Farmers Ins. Group, 41 Cal. Rptr. 401 (230 CalApp2d 788).

“We think it clear that an even greater duty rests upon the company after a verdict in excess of the policy limitation has been returned and an offer of settlement within the policy is made. Under such circumstances an appeal, if successful, can be of benefit only to the insurance company. It alone can profit from a reversal. All [the insured] would get would be another law suit with a further possibility of an excess judgment against him. But because the company is not required to renounce completely its own interest in the litigation these facts in themselves are not sufficient to convict it of bad faith in taking an appeal. We believe that where the company is the only one that can profit from a successful appeal, which if successful would however subject its insured to the hazards of another trial, the facts for reversal must be very strong. Under such conditions the chances of success must be correspondingly greater than the chances of failure. Not only must the circumstances be such as to point strongly to a reversal but more important they must be such that there is a great possibility that upon a second trial in any event a judgment will not be returned in excess of the coverage of the policy.” Hazelrigg v. American Fidelity & Casualty Co., 241 F2d 871; Hart v. Republic Mut. Ins. Co., 152 Ohio St. 185, supra; Knudsen v. Hartford Accident & Indemnity Co., 26 Conn. Sup. 325 (222 A2d 811); Southern Farm Bureau Cas. Ins. Co. v. Parker, 232 Ark.. 841 (341 SW2d 36); Bennett v. Conrady, 180 Kan. 485 (305 P2d 823); Dumas v. Hartford Acci. & Indem. Co., 94 N. H. 484 (56 A2d 57); Jones v. Highway Ins. Underwriters (Tex. Civ. App.), 253 SW2d 1018. Accord Murach v. Mass. Bonding & Ins. Co., 339 Mass. 184 (158 NE2d 338). See also 15 Ark. Law Review 401, 411. This is the law for our neighbor to the east. Tyger River Pine Co. v. Maryland Cas. Co., 170 S.C. 286 (170 SE 346). It is also the law for our neighbor to the west. Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252 (73 S2d 524); Dalrymple v. Alabama Farm Bureau Mut. Ins. Co., 267 Ala. 416 (103 S2d 711).

We concede there are two extreme views on this question-one is as contended by the insurer that it has an absolute right to appeal with no duty to consider the insured’s interest in rejecting a settlement (see cases cited in dissent); the other is that the insurer has an absolute duty to accept any offer to settle for an amount within the policy coverage. While either of these two extreme positions has the advantage of certainty and relative ease of application, we reject them both. “The predominant majority rule is that the insurer must accord the interest of its insured the same faithful consideration it gives its own interest.” Cowden v. Aetna Cas. &c. Co., 389 Pa. 459 (134 A2d 223) (1957). (Emphasis supplied.) While this rule will not be as simple to apply in differing circumstances as either of the above absolutes, we think it states the duty owed by any prudent insurer to refrain from taking an unreasonable risk on behalf of its insured, e. g., where the chances of unfavorable results for the insured on appeal are out of proportion to the chances of favorable results.

The basis of the insurer’s refusal to settle after the original verdict and the basis of the insurer’s determination, over the objection of its insured, to appeal the case to this court (Evans v. Williams, 111 Ga. App. 647, supra), was that the evidence showed as a matter of law, (1) that the defendant driver was not guilty of gross negligence, and (2) that the guest had assumed the risk of riding with her. We do not think either of these defenses presented this court with any novel point of law in the field of negligence. We agree that it was in the. insurer’s own self-interest to appeal the case. However, its duty was not so limited. It had also to give at least equal consideration to the interest of the insured. Hernandez v. Employers Mut. Liability Ins. Co. of Wis., 346 F2d 154; State Farm Mut. Auto. Ins. Co. v. Jackson, 346 F2d 484; Southern Farm Bureau Cas. Ins. Co. v. Mitchell, 312 F2d 485. We cannot hold as a matter of law that the evidence in the present case demands a finding that the insurer gave equal consideration to the interest of the insured. See Crisci v. Security Ins. Co. of New Haven, 58 Cal. Rptr. 13 (426 P2d 173).

Judgment affirmed.

Bell, P. J., Jordan, P. J., Pannell and Joslin, JJ., concur. Felton, C. J., Eberhardt, Deen and Quillian, JJ., dissent.