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Badillo v. Mid Century Insurance Co.6/21/2005
lled a lawyer with insurers and sent him a letter leaving the matter of the statement up to said attorney. The letter appears not to have gotten to this attorney and seems to have been placed in the insurers' branch claims office file which had been closed contemporaneously with or shortly after the $10,000.00 check and release had been sent to Burton in late February 2000. Evidence submitted at trial, direct and/or inferential, supports a reasonable finding that legal guidance as to the statement request was necessary prior to the Berry telephone call, i.e., at a time close to receipt of the statement request letter from Burton.
Approximately forty (40) days elapsed from the first request for the statement and the Wallis/Berry telephone call. Evidence submitted at trial reasonably supports a finding neither Wallis nor anyone else with insurers, during said forty (40) days, did anything along the lines of trying to negotiate with the Smith lawyers to see if there were any acceptable alternatives short of or in lieu of a face-to-face statement from insured, e.g., an affidavit.
The record contains a power of attorney from Smith to her sister signed with an "X" and dated March 17, 2000. Neither Smith nor Young testified at trial. However, one or more of the Smith lawyers testified at trial, in effect, that had insured been produced for a statement and they were convinced he had no other assets, or limited assets (other than the insurance policy), to satisfy the large claim being made against him by Smith, and that no other insurance or tortfeasor existed to pursue in the matter, they would have advised Young and/or Smith to settle for the $10,000.00 policy limits and that no lawsuit would have been filed against insured. Insured testified that had he known Smith's lawyers wanted to talk with him about the accident, he would have been happy to talk with them.
Insured presented an expert witness [Ms. Luther - a licensed insurance adjuster for about twenty-one (21) years] who basically labeled the Smith claim against insured as a code blue situation and that Wallis and insurers did not treat it as such. A code blue situation was described as one involving probable liability, catastrophic injuries and minimum coverage. It was also essentially described as one where insured's financial life was at stake because of the potential for large exposure over the $10,000.00 policy limits.
After suit was filed against insured on April 17th, insurers provided him legal counsel at insurers' expense. Smith obtained a $1,000,000.00 jury verdict which was reduced by 40%, the percentage of negligence the jury attributed to her. The total judgment against insured was $633,202.63, which consisted of $600,000.00 (i.e., $1,000,000.00 X 60%) plus $33,202.63, the latter amount apparently prejudgment interest on the $600,000.00. Some time after the excess verdict, insurers again tendered the policy limits to Smith, which was accepted, reducing the judgment against insured by $10,000.00.
Insured did not have sufficient income or assets to satisfy the Smith judgment. He is married, has three children, lives in a modest home and makes about eight dollars and fifty cents ($8.50) per hour. Insured received legal advice concerning his options relating to the potential for filing bankruptcy or pursuing a claim against insurers for breach of the duty of good faith and fair dealing, in essence, in relation to the handling of the matter prior to suit being filed against him. He chose the latter.
Insured reached an agreement with Smith to stay any attempt to execute or seek recovery on her judgment pending the outcome of this suit against insurers. The agreement contempl
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