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Badillo v. Mid Century Insurance Co.6/21/2005
y (i.e., his financial future) at issue if the matter did not settle for the policy limits. Surely, a rational jury could conclude based on the evidence that insurers failed in their communicative/consultative duty. A rational jury could also conclude that insured was entitled to reasonable information concerning the statement request and settlement implications thereof in order for him to have necessary input concerning the request so that an informed decision as to how best to respond could be formulated, giving due consideration to his input and desires in such regard. In that it was insured's financial health implicated above the $10,000.00 policy limits, it could be found it was incumbent on insurers to consult with him on the matter.
A central question here is whether someone who was on a personal errand, who was not drinking and who clearly did not have assets or the financial wherewithal to satisfy the claim being made by Smith (in light of her extensive injuries and medical bills), would have acquiesced in a statement or taken affirmative steps to attempt to work out some solution with Smith's lawyers in lieu of such a statement, rather than following the course insurers followed. We believe a rational juror could view insurers' conduct as almost daring Smith's lawyers to file suit against insured, without even informing him a statement (or something in lieu thereof) might result in a quick settlement of the matter within the policy limits. Such act(s) and/or omission(s) of insurers were sufficient to create jury questions as to the reasonableness of insurers' conduct and as to breach of the duty of good faith and fair dealing.
Contrary to insurers' position(s), a carrier's duty of good faith and fair dealing in the situation reasonably shown by this record involves more than making an offer to settle for or within policy limits, or simply not refusing unconditional settlement offers within those limits. It has even been held, if an insured's liability is clear and the injuries of a claimant are so severe that a judgment in excess of policy limits is likely, the insurer has an affirmative duty to initiate settlement negotiations. Powell v. Prudential Property & Casualty Ins. Co., 584 So.2d 12, 14 (Fla. App. 3rd Dist. 1991), review denied, 598 So.2d 77 (Fla. 1992). In the instant case, regardless of who initiated settlement discussions/negotiations, part of same involved what rational jurors could find was a reasonable request for insured's statement. Although liability might well be defeated when a condition or request by a third-party claimant may only rationally be considered an unreasonable one from the perspective of the insured and, possibly, even from the insurer's perspective depending on the particular circumstances, the same cannot be said when the condition or request is reasonable or may properly be found such by the trier of fact, and the insurer's unreasonable response to it inures to the detriment of its own insured in violation of the duty of good faith and fair dealing.
Also, a legally binding, unconditional offer of settlement from the claimant is not a prerequisite to maintaining an action of this type where the insured has been exposed to an excess verdict. Alt v. American Family Mutual Ins. Co., 71 Wis.2d 340, 237 N.W.2d 706, 709 (1976). In the circumstances here, insurers could be found to have had an affirmative duty to seize a reasonable opportunity to protect insured from the potential for excess liability and their duty consisted of more than merely playing a passive role in the settlement process. See Alt, 237 N.W.2d at 713. To us, this appears certainly true when, as here, the lawyers acting on behalf of Smith expressed a willingness to cons
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