AUGUST 2017 BAD FAITH CASES: PLAUSIBLE BAD FAITH CLAIM WHERE INSURER FAILED TO PROMPTLY NEGOTIATE SETTLEMENT WITHIN POLICY LIMITS, WITH SOME INTERESTING DICTA ON COLLUSION AND BAD FAITH SETTLEMENTS (Superior Court of New Jersey Appellate Division) (Unpublished Opinion)
This case provides an exposition of the duty of good faith and fair dealing under Rova Farms, in the context of settlement negotiations where the potential loss exceeds policy limits, and the matter settled well above policy limits.
The insured rear-ended another vehicle seriously injuring that vehicle’s four passengers, who later brought suit against him. The insured’s policy limits provided $25,000 per person or $50,000 per accident, but the documented value of the injury claims alleged far exceeded those limits. The personal injury action eventually settled, with a consent judgment against the insured for $1.155 million dollars.
Prior to that settlement, the personal injury plaintiffs’ counsel made a policy limits settlement demand on the tortfeasor’s insurer. Eleven months later, and after an arbitration award against the insured for $1.3 million, the insurer belatedly tendered its policy limits. Plaintiffs’ counsel rejected this offer, and counteroffered to settle for the policy limits, adding a demand for an assignment of the insured’s breach of good faith and fair dealing against the insurer. The insurer rejected this counteroffer.
The personal injury plaintiffs and the insured subsequently settled by agreeing to a consent judgment in the amount of $1.155 million, with a further agreement that the insured would pursue a bad faith claim against its insurer.
As agreed, the insured brought a bad faith complaint. He alleged the insurer failed to respond to the settlement offer; failed to seek an extension of time to reply to the offer; and that the insurer negligently or intentionally failed to advise the insured of the settlement offer that was within the available policy limits. The insurer sought to dismiss the claim, and the trial court denied that motion.
On appeal, the Appellate Division stated that insurers have “a positive fiduciary duty to take the initiative and attempt to negotiate a settlement within the policy coverage[,]” and “[a]n insurer’s fiduciary duty requires it ‘to make an honest, intelligent and good faith evaluation of the case for settlement purposes and to weigh the probabilities in a fair manner.’”
For purposes of a motion to dismiss, the appellate court would not rule on the issue of a putative collusive settlement, but recited the rule that an insurer could be bound to pay on a settlement sum that was reasonable and made in good faith.
It held the bad faith complaint alleged sufficient facts and circumstances to make out a bad faith claim, by alleging that the insurer did not look to the insured’s interests and take the initiative in attempting to negotiate a settlement offer for its insured within the policy limits.
In dicta, the appellate court stated that there were potential issues on the collusion allegations that the trial court may have to allow the insurer to explore. “We add that Insurance Council’s [sic] assertion the settlement was a product of collusion and bad faith raises some interesting issues. One interpretation of the settlement agreement is that the personal injury plaintiffs will file warrants of satisfaction immediately upon conclusion of this bad faith action, regardless of the outcome. That construction suggests that if plaintiffs recover nothing under the bad faith action, the personal injury plaintiffs will collect nothing further… If that is so, then there is a significant question as to whether [the insured] will ever have to pay a sum in excess of the policy limits. Resolution of that issue may have a bearing on the viability of plaintiffs’ bad faith cause of action. We express no opinion as to that issue. The trial court may decide to conduct discovery and entertain dispositive motions on that issue before permitting the parties to engage in other extensive discovery. We leave that matter to the trial court’s sound discretion.”
Date of Decision: July 20, 2017
Ellington v. Cure Auto Ins., No. A-2470-16T4, 2017 N.J. Super. Unpub. LEXIS 1831 (N.J. Ct. App. July 20, 2017) (Currier, Geiger, Nugent, JJ.) (Unpublished)