Jim Foland and Jim Maloney Obtain Summary Judgment in $9,000,000 Bad Faith Case

On September 22, 2015, Jim Foland and Jim Maloney achieved summary judgment for a liability insurer sued for bad faith failure to settle an underlying claim for two wrongful deaths.  The insurer was alleged to be liable for failing to settle under an auto policy with $50,000 limit where claim against insured resulted in judgment of approximately $5,700,000.  The plaintiff, standing in the insured’s shoes, claimed more than $9,000,000 including post-judgment interest and attorneys’ fees.  The named insured had entrusted her covered vehicle to her boyfriend, who had been drinking.  The boyfriend, as a permissive user, then fled police and killed a mom and her daughter in an intersection collision.  The plaintiff initially demanded the policy limit to release the driver, only.  The insurer rejected that demand but offered the policy limit for a release of the driver and the named insured.  The plaintiff rejected that offer and demanded a $5,000,000 consent judgment against insured with a covenant not to execute.  The insurer then offered the policy limit for a release of the driver, only.  The plaintiff rejected that offer.  On the insurer’s summary judgment motion, the court found the insurer could not have accepted the plaintiff’s initial demand for the driver, only, because it owed an equal duty of good faith to the named insured and could not have exhausted its policy limit without trying to get protection for her.  The court further found the failure of settlement when the insurer later offered the policy limit for the driver, only, was caused by the plaintiff’s attempt to manufacture a bad faith claim.  The case was litigated in the U.S. District Court for the District of Kansas, and the summary judgment ruling is subject to appeal.

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