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Badillo v. Mid Century Insurance Co.6/21/2005
hat caused the lost opportunity and consequent excess verdict against insured and other recoverable damages. Evidence was also admitted that only the client (not the attorney) could authorize settlement and evidence came before the jury that Smith was in a semi-comatose state at least through March 28, 2000. Insurers were also allowed to explore the bias, motive and credibility of the attorneys and to argue the set-up defense in their closing arguments to the jury.
Thus, the jury was assigned the task of determining whether the opportunity for settlement failed due to the actions of the insurers or whether it failed because the requests of Smith's lawyers for a statement were unreasonable and part of an overall plan designed to set-up insurers at a time said attorneys had no real intent to ever consider settling the matter or recommending to their client(s) settling the matter and releasing insured for only the $10,000.00 policy limits. In light of the fact extensive evidence concerning insurers' set-up defense was allowed, in our view, insurers have failed to show any miscarriage of justice or a substantial violation of some constitutional or statutory right warranting reversal and a new trial. We also believe they have not adequately shown any exclusion of the capacity evidence they sought to introduce was prejudicial nor that the verdict and judgment in favor of insured would probably have been different had such evidence been admitted. In sum, we do not believe the proffer of additional evidence concerning Smith's capacity would have materially affected the outcome of the case and no finding of reversible error is warranted.
PART V. FIE WAS NOT ENTITLED TO A DIRECTED VERDICT BASED ON THE ASSERTION IT WAS NOT THE INSURER; INSTEAD, THE TRIAL COURT PROPERLY RULED AS A MATTER OF LAW THAT MCIC AND FIE SHOULD BE TREATED AS ONE ENTITY FOR PURPOSES OF POTENTIAL LIABILITY AS TO ANY BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
FIE also asserts the trial court erred in denying FIE's motion for directed verdict based on the argument that because it was not a party to the insurance contract between MCIC and insured, i.e., because FIE was not the named insurer on the policy, it was not subject to liability or suit for breach of the duty of good faith and fair dealing toward insured. In essence, FIE's argument is that as a non-insurer it had no duty of good faith and fair dealing toward insured that could be breached and, thus, it could not be held liable for the manner in which it handled the claim under insured's policy. In our view, the trial court did not err in denying FIE's motion for directed verdict as to such issue.
Although normally it is only the actual insurer that owes the duty of good faith and fair dealing to its insured (Wathor v. Mutual Assurance Administrators, Inc., 2004 OK 2, 18, 87 P.3d 559, 562) and a cause for breach of the duty will not lie against a stranger to the insurance contract [Timmons v. Royal Globe Ins. Co. (Timmons I), 1982 OK 97, 653 P.2d 907, 912-913], these normal rules are not absolutes; there are exceptions. When a non-party to the insurance contract, based on the specific facts and circumstances existent, engages in activities or conduct such that it may be found to be acting sufficiently like an insurer so that a special relationship can be said to exist between the entity and the insured, we have made it clear that imposition upon said entity of the same duty of good faith and fair dealing as that imposed on the actual insurer issuing the insurance policy is appropriate. Wathor, 2004 OK 2, at 16, 87 P.3d at 563-564.
Our de novo review of the trial record convinces us there was plainly sufficient evidence subm
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