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Woodson v. American Transit Insurance Co.10/11/2005
eptember 1995 claim sheet, which qualifies the "demand" by a reference to the "Default judgment in the amount of $3,415,415.97." Moreover, there is no mention of the alleged $1 million demand in any of the "Claim Progress" memoranda from the insurer's file.
Additionally, even assuming a demand was made, plaintiff has not proffered evidence regarding the insurer's alleged pattern of "knowing indifference" to Dansby's potential liability. Although plaintiff has offered some vague details regarding its demand, the record does not reflect the nature of the insurer's presumed rejection or the reasons therefore. Accordingly, whether a refusal to settle was justified in view of all the circumstances surrounding the default judgment cannot be determined on the present record.
Finally, on reply, plaintiff has abandoned its remaining arguments relating to ATIC's other pre-judgment and post-judgment conduct as a basis for liability. As discussed above, plaintiff cannot pursue ATIC based upon the theory that it is derivatively liable for the conduct of its counsel in view of the dismissal of the claims against the Attorney Defendants.
Accordingly, it is hereby
ORDERED, that the motion of Bisceglia & Oppenheim, P.C. Philip Bisceglia, Norman Volk and Norman Volk & Associates, P.C. to dismiss are granted, and the claims against them are severed and dismissed, and it is further
ORDERED, that the Clerk is directed to enter judgment accordingly, and it is further
ORDERED, that the motion of defendant American Transit Insurance Company for summary judgment is denied, and it is further
ORDERED, that the motion of plaintiff for summary judgment is denied.
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