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Switzer v. Shelter Mutual Insurance Co.5/26/2005
ir interests.
In the instant case, Switzer's claim regarding the issue of bad faith center on Shelter's failure to protect his interest to sue Kirkpatrick. The problem here is that Switzer submitted no evidence of any affirmative misconduct on the part of Shelter in handling the Kirkpatrick settlement. To the contrary, the evidence indicated that Shelter investigated the Kirkpatricks' claim, reviewed the accident reports, and determined that it was in the best interest of its insured to settle the claim. As to Switzer's claim that the releases should have contained language reserving his right to sue Kirkpatrick, there was no evidence that the lack of such language actually prohibited Switzer from suing Kirkpatrick. Even if we were to assume that Shelter's omission of this language prevented Switzer from bringing a suit, it still does not rise to the level of bad faith. This court has held on several occasions that a mistake on an insurance carrier's part or negligence or confusion or bad judgment will not suffice to substantiate the tort of bad faith. See, e.g., Swaim, 338 Ark. 49, 991 S.W.2d 555; Parker v. Southern Farm Bureau Cas. Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996); Southern Farm Bureau Cas. Ins. Co. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996).
To the contrary, the evidence in this case indicated that Switzer's suit was dismissed only after Appellant incorrectly testified that he was aware that Shelter was going to settle with the Kirkpatricks. Moreover, we agree with Shelter that our decision in Fikes v. Johnson, 220 Ark. 448, 248 S.W.2d 362 (1952), does not automatically support the trial court's position that such knowledge warranted dismissal of Switzer's claim against Kirkpatrick. In fact, the court in Fikes held that where an insurer settles a claim against the insured without his knowledge or consent, the insured may still maintain a cause of action against the tortfeasor. Despite the dubious ruling of the trial court, Switzer failed to appeal the order, choosing instead to go after Shelter. It would appear that this was a matter of strategy and certainly does not give way to evidence that Shelter acted with a malicious intent or ill will in their handling of the Kirkpatricks' claim. Accordingly, the trial court did not abuse its discretion in granting Shelter's motion for directed verdict on the claim of bad faith.
Shelter has filed a cross-appeal, arguing that the trial court erred in failing to grant its motion for directed verdict on Swtizer's remaining claims for negligence. According to Shelter, it was entitled to judgment as a matter of law because its action of settling the Kirkpatricks' claim did not bar Switzer's action against Mark Kirkpatrick. Because we are affirming the judgment entered in Shelter's favor, it is unnecessary for us to address the merits of this cross-appeal as it is now moot.
Affirmed on direct appeal; cross-appeal moot.
Dickey, J., not participating.
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