Summary judgment was granted *415 by the trial court in favor of defendant The Medical Protective Company, apparently pursuant to GCR 1963, 117.2(1). Plaintiff, Commercial Union Insurance Company, appeals as of right.
This matter originated with a 1974 medical malpractice action against Dr. Merle Berman. Defendant was Dr. Berman’s primary professional liability insurer with a policy limit of $200,000. Plaintiff was Dr. Berman’s excess professional liability insurer. The defense in the malpractice action was managed by defendant. A default judgment was ultimately granted against Dr. Berman in the malpractice suit based on Dr. Berman’s failure to answer interrogatories. A motion to set aside the default was denied. Prior to trial on the sole issue of damages, the parties settled for $350,-000. Defendant contributed $190,000, Dr. Berman’s estate (he had committed suicide after entry of the default judgment) contributed $10,000, the hospital named as a codefendant in the suit contributed $25,000, and plaintiff contributed $125,000.
Plaintiff and defendant are in disagreement as to the facts and dates surrounding the default and settlement negotiations. However, plaintiff filed the present action against defendant alleging that defendant had acted in bad faith in handling the underlying defense of the malpractice claim and in failing to attempt to settle timely within its policy limit, resulting in excess exposure to plaintiff here, or, alternatively, that defendant had violated its fiduciary duty to its insured by allowing him to go into default and failing to move timely to set aside the default judgment. Defendant moved for summary judgment, apparently on the ground that plaintiff had failed to state a claim upon which relief could be granted. The trial court granted defendant’s motion on two gounds: first, the court *416 ruled that plaintiff did not have a direct cause of action against defendant; second, the court found that, even if plaintiff had a cause of action based on its equitable subrogation to the insured, plaintiff was estopped from asserting it by failing to reserve its rights against defendant during settlement.
In reviewing a motion for summary judgment for failure to state a cause of action, the court considers only the complaint and must accept as true all well-pled allegations in the complaint. The court must then determine whether the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right of recovery.
Hansman v Imlay City State Bank,
We must first consider, therefore, in determining whether plaintiff’s claim was clearly unenforceable as a matter of law, whether plaintiff could bring a direct action for bad faith against defendant.
It is clear that the insurer owes the insured a duty of good faith. Thus, the insured has a direct cause of action against the insurer for a breach of this duty which exposes him to excess liability.
City of Wakefield v Globe Indemnity Co,
In
Lisiewski v Countrywide Ins Co,
The Sixth Circuit Court of Appeals has also indicated in dicta that a claim of a direct action was difficult to conceptualize where there was no contractual relation between the primary and excess insurer. The argument was addressed only briefly in a footnote, however, and was analyzed on the basis of the facts presented in that case. Valentine v Liberty Mutual Ins Co, 620 F2d 583, 584 (CA 6, 1980). The court instead chose to base its decision in Valentine on the theory agreed upon by both parties: that of equitable subrogation to the rights of the insured.
We are not convinced on the strength of these two judicial pronouncements, however, that no direct action may be undertaken by the excess carrier against the primary insurer. In
Jones v
*418
National Emblem Ins Co, supra,
the federal court ruled, construing Michigan law, that a judgment creditor could directly sue the judgment debtor’s insurer for bad faith in handling a suit or settlement. The court there found that, even without a duty owed individually to him, the judgment creditor was a real party in interest and public policy dictated the allowance of a direct cause of action. By "recognizing] the cause of action in one who has the motivation to pursue it, the insurer is encouraged to conduct settlement negotiations responsibly”.
In addition to concluding that a direct action is *419 justified where, as here, the excess insurer is the real party in interest, we also find that other policy reasons support such an action. If the primary insurer may not be held accountable for a breach of good faith in conducting an insured’s defense or negotiating settlement, excess insurance premiums may escalate. Since the insured will not bring an action if he has not suffered any loss, the primary insurer will suffer no consequences from breaching its duty. As a result, excess insurers would likely respond to this possible additional liability by raising insurance premiums. This in turn would discourage the purchase of excess insurance, thereby exposing an insured to more liability and reducing an injured party’s chances of recovery of large settlements or judgments which the insured may not be able to pay without excess coverage.
Although we find a direct action to be most appropriate here, we also find that plaintiff was equitably subrogated to the insured and thus had an alternative cause of action against defendant. Legal or equitable subrogation substitutes one person in place of another with reference to a lawful claim, demand or right so that he who is substituted succeeds to the rights of the other.
Foremost Life Ins Co v Waters,
Equitable subrogation of insurers to their insureds has been allowed in Michigan. In the context of auto insurers, this Court has held that, when an insurer whose liability is arguably sec
*420
ondary to that of a primary insurer pays a claim, it becomes subrogated to the rights of the insured against the primary insurer.
Federal Kemper Ins Co v The Western Ins Cos,
Furthermore, federal courts applying Michigan law have also recognized a claim for subrogation by an excess insurer.
Transport Ins Co v Michigan Mutual Liability Ins Co,
We note that, in granting summary judgment, the trial court here did not rule that plaintiff did not have a claim of equitable subrogation but rather that plaintiff was estopped for other reasons from seeking reimbursement from defendant on such grounds. Upon remand, therefore, we hold that plaintiff is entitled to assert a direct action against defendant and/or equitable subrogation to the rights of the insured. We must first consider, however, whether the trial judge correctly ruled that plaintiff was estopped from claiming against defendant.
The doctrine of estoppel rests upon a party’s having made direct or indirect assertions, promises, or assurances upon which another has acted under such circumstances that he would be seriously prejudiced if the assertions were allowed to be disproved or the promises or assurances withdrawn, but the doctrine should be applied only where the facts calling for it are unquestionable and the wrong to be prevented undoubted.
Maxwell v Bay City Bridge Co,
Defendant claims that plaintiff voluntarily participated in the settlement process and ultimately paid $125,000 of the award without reserving its rights against defendant or implying that its contribution was contingent upon its right to later proceed against defendant for bad faith. Plaintiff’s failure to reserve its rights, claims defendant, resulted in plaintiff’s waiver of its rights and plaintiff was therefore estopped from maintaining the later action.
Plaintiff, on the other hand, claims that it made it clear to defendant that it considered settlement *422 to be the only viable alternative under the circumstances. Plaintiff maintains that it strenuously voiced its objections to the way defendant handled the case, demanded that defendant tender its policy limits in settlement and notified defendant that it would look to defendant for recovery of sums in excess of the primary policy limit. In a letter before settlement, plaintiff notified defendant that, if the case went to trial, it would seek recovery from defendant for any sums in excess of the primary policy. Although the letter refers to trial, not settlement, it weakens defendant’s disavowal of plaintiff’s claim that it would seek recovery from defendant.
In order for plaintiff to waive its rights against defendant, it must have intentionally and knowingly relinquished those rights.
American Locomotive Co v G Chemical Research Corp,
171 F2d 115 (CA 6, 1948),
cert den
The trial court also based its finding of estoppel on the failure of the insured to cooperate in the underlying litigation. This could only act as a bar to a subrogation action, not a direct action, however, since only in an equitable subrogation action would plaintiff stand in the insured’s shoes. A direct action would be unaffected by the insured’s breach. Furthermore, since insufficient information exists on the record before us to determine the extent of any breach by the insured, the matter is one in need of factual development and renders summary judgment under GCR 1963, 117.2(1) inappropriate.
Finally, the trial court found that plaintiff’s equitable subrogation claim against defendant sounded in negligence rather than bad faith and thus could not survive. "Bad faith” on the part of the insurer is necessary to sustain an action for breach of the insurer’s duty to settle. Negligence is not enough. City of Wakefield v Globe Indemnity Co, supra. Bad faith itself is a factual issue. See Jones v National Emblem Ins Co, supra. Plaintiff’s complaint, in ¶¶ 8 and 9, alleges negligence and bad faith. Several of the allegations within ¶ 8 sound in bad faith, particularly the allegations of instructing counsel to act contrary to the best interests of its insured and of misrepresenting the extent of its coverage.
The trial court erred, therefore, in ruling that plaintiff’s claim sounded in negligence rather than bad faith. Once plaintiff made factually supported allegations of bad faith, the matter was a factual issue and summary judgment was inappropriate.
*424 We therefore reverse the trial court’s order granting summary judgment in favor of defendant and remand for trial. Plaintiff may proceed in a direct action against defendant or as the equitable subrogee of the insured.
Reversed and remanded.
Costs to abide the final outcome.