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Badillo v. Mid Century Insurance Co.6/21/2005
ider settlement within the policy limits. See id. at 712-713.
It has also been recognized that an insurance company's decisions regarding settlement must be made based on a thorough investigation of the underlying circumstances of the claim and on informed interaction with the insured. Mowry v. Badger State Mutual Casualty Co., 129 Wis.2d 496, 385 N.W.2d 171, 178 (1986). The duty of an insurance company in this type of situation includes the duty of timely and adequately informing insured of the progress of settlement negotiations. Baker v. Northwestern National Cas. Co., 22 Wis.2d 77, 125 N.W.2d 370, 373 (1963). Here, that would include timely and adequately informing insured of the statement request, particularly given its importance as to settlement probability within the policy limits.
In this third-party-type situation, an insurer's duty of good faith and fair dealing includes the duty to act in a diligent manner in relation to investigation, negotiation, defense and settlement of claims being made against the insured. See State Automobile Ins. Co. v. Rowland, 221 Tenn. 421, 427 S.W.2d 30, 33 (1968). "The duty to inform the insured of settlement opportunities is one of the duties subsumed within the duty of good faith owed by an insurer to an insured." Berges v. Infinity Ins. Co., 896 So.2d 665, 680 (Fla. 2004). Although failure to so inform does not automatically establish breach of the duty of good faith and fair dealing, it is one factor the jury may consider in deciding whether the insurer acted in violation of the duty of good faith and fair dealing. Id. The settlement opportunity in the instant case was tied to the statement request and, of course, that request, along with the potential for settlement if it was given, is what could reasonably have been found necessary to be relayed to and discussed with insured. In the final analysis, we believe sufficient evidence as to unreasonableness and breach of the duty of good faith and fair dealing by insurers is contained in the trial record such that these elements were properly supported and properly submitted to the jury for its consideration.
B. DIRECT OR PROXIMATE CAUSE
As to their challenge relating to causation, insurers argue, in effect, no causation could be found unless Smith herself testified she could and would have settled her claim or that she authorized someone else who would have done so, said authorization being made at a time Smith unequivocally had the capacity to so authorize. We do not believe the failure of Smith to testify at trial provides insurers with an absolute shield on the proximate or direct cause element of insured's claim. Initially, we begin our analysis with the recognition that, unless there is no competent evidence from which a jury could reasonably find a causal nexus between the act(s) or omission(s) deemed tortious and the injury, the question of proximate cause is for the jury. Gillham v. Lake Country Raceway, 2001 OK 41, 7, 24 P.3d 858, 860.
Insurers' argument(s) as to causation, capacity and authorization seek to take advantage of Smith's purported incapacity (as a result of her injuries from the accident and treatment received) from the date of the accident to, at the latest, April 17, 2000, when suit was filed against insured by Young on Smith's behalf. Although we agree it is the client that must decide whether to settle a case, or afford someone else the authority to do so on her behalf, and the general rule is that an attorney has no power or authority to compromise or settle a case without appropriate authority from the client [See Walker v. Gulf Pipe Line Co., 1924 OK 515, 226 P. 1046 (First Syllabus by the Court)], we believe the instant trial
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