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Vecchione v. Amica Mutual Insurance Company7/31/2000
Argued-May 19, 2000
2434B
DECISION & ORDER
In an action to recover damages for the bad faith refusal to settle a personal injury action, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O'Connell, J.), dated June 28, 1999, which granted the defendant's motion pursuant to CPLR 4404 to set aside the verdict in favor of the plaintiffs and dismissed the complaint.
ORDERED that the order is affirmed, with costs.
Where a jury verdict is set aside on the ground that it is not supported by sufficient evidence as a matter of law, the relevant inquiry upon appellate review is whether there existed a valid line of reasoning and permissible inferences which could possibly lead rational people to the conclusion reached by the jury on the evidence presented at trial (see, Campbell City of Elmira, 84 NY2d 505, 509; Cohen v Hallmark Cards, 45 NY2d 493, 499; Nicastro v Park, 113 AD2d 129, 132). The Supreme Court properly found the evidence insufficient to support the jury's finding that the defendant insurance carrier acted in gross disregard of its policyholder's interests when it failed to tender the full amount of the policy in response to a demand for settlement (see, Smith v General Acc. Ins. Co. 91 NY2d 648, 652; Soto v State Farm Ins. Co., 83 NY2d 718, 723; Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 452).
The underlying personal injury action arose from a collision in June 1988 between a vehicle owned by the plaintiff Mary Vecchione and operated by the plaintiff Victoria Vecchione, and a vehicle owned by William Kossman in which Patricia Neary and Kathleen Neary were passengers. The Nearys brought an action against Kossman and the Vecchiones in_August 1988, at which time Patricia was still in a coma and not expected to survive, and Kathleen remained incapacitated, requiring a wheelchair. The Vecchiones were insured by the defendant, Amica Mutual Insurance Company (hereinafter Amica), under a policy with a single limit of $300,000.
Prior to a pretrial conference on January 19, 1993, Amica's claims supervisor, Robert Valliere, requested authorization to tender the policy limit. This request was denied by an Amica senior vice president, who suggested waiting to see the results of the conference or proceeding through the liability phase of the trial before attempting settlement. In February 1993, on the adjourned date of the pretrial conference, Valliere, expressing concern for the potential exposure of the Vecchiones to an excess judgment, sought authority to offer the Nearys a so-called "high/low" agreement, pursuant to which the Nearys would receive the full policy limit of $300,000 if, after the liability phase of the trial, Victoria was found to be at fault, but Amica would still pay $100,000 even if the jury found no liability on her part. Authorization for the "high/low" proposal was granted, although counsel for the Vecchiones did not make the offer at the conference, deeming it "premature" to do so.
The case was marked final and adjourned to March 24, 1993. On March 1, 1993, counsel for the Nearys sent a demand letter to counsel for the Vecchiones, seeking tender of the policy limits within 48 hours or the offer of settlement would be withdrawn. Valliere responded by presenting the "high/low" proposal, which was rejected by counsel for the Nearys, who told Valliere he would not even discuss it with the Nearys.
The personal injury action was tried in November 1993. The jury found Kossman 95% at fault for the happening of the accident and Victoria Vecchione 5% at fault (see, Neary v Vecchione, 220 AD2d 566). A judgment in the sum of approximately $1.5 million was
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