Ward W. KELLY, Appellant,
v.
Grace B. WILLIAMS, As Personal Representative of the Estate of Larry Arthur Williams, Deceased, Grace B. Williams, Individually and Allstate Insurance Company, Appellees.
District Court of Appeal of Florida, Fifth District.
*903 Richard A. Krause, Ormond Beach, for appellant.
Christopher W. Wickersham, Daytona Beach, for appellee, Grace B. Williams.
Robert K. Rouse, Jr., Daytona Beach, for appellee, Allstate Ins. Co.
SHARP, Judge.
Kelly appeals an order entered after a pre-trial conference, which dismissed his cause with prejudice. The issues in the suit were comparative negligence and Kelly's damages stemming from an automobile collision caused in part by the negligence of Williams' deceased husband. We affirm the order because Kelly voluntarily agreed to accept a specific sum in settlement, and no justiciable issues remained for trial.
Before trial the parties entered into a stipulation[1], filed with the court, in which Allstate agreed to pay Kelly Fifty Thousand Dollars ($50,000), the liability limit of Williams' policy. The Stipulation provided in pertinent part:
2. The Defendant ALLSTATE agrees to pay Plaintiff, WARD W. KELLY the sum of Fifty Thousand Dollars ($50,000) within five (5) days of the execution of this Stipulation/Agreement by counsel for all Defendants and counsel for Plaintiff.
3. In consideration of the said payment, and the other agreements contained herein, Plaintiff agrees and promises to execute a Satisfaction of Judgment with regard to any and all judgments which are entered against GRACE B. WILLIAMS, and to deliver said executed Satisfaction of Judgment to [Williams' attorney] within sixty (60) days of the conclusion of the above-captioned cause (both in the Florida State Trial Courts and the Florida State Appellate Courts), unless a bad-faith action is commenced against ALLSTATE within that time. In the event that a bad-faith action is filed against ALLSTATE within that time, Plaintiff agrees and promises to execute a Satisfaction of Judgment with regard to any and all judgments which are entered against GRACE B. WILLIAMS, and to deliver said executed Satisfaction of Judgment to Christopher Wickersham, Esq. within ten (10) days of the conclusion of any bad-faith action against ALLSTATE arising out of or derived from the above-captioned law suit (both in the Florida State Trial Courts and the Florida State Appellate Courts). Said Satisfaction or Satisfactions of Judgment shall satisfy any and all judgments entered against GRACE B. WILLIAMS because of the above-styled litigation, and said Satisfaction shall be executed and delivered within the appropriate stated period of time, regardless of the outcome of any bad-faith action against ALLSTATE.
4. Additionally, and in further consideration of the said payment and other agreements contained herein, Plaintiff agrees and promises not to execute or to seek to execute or to cause execution upon any judgment entered in connection with or because of the above-styled action against the property or assets of GRACE B. WILLIAMS until at least twenty (20) days have elapsed after the conclusion of any bad-faith action commenced against ALLSTATE.
5. It is agreed and stipulated that in the above-styled cause, the liability of the Defendant, ALLSTATE, is limited to Fifty Thousand Dollars ($50,000), as to any judgment which may be entered at the conclusion of or as a result of the above-captioned cause and action, and that no judgment can or should be entered against ALLSTATE in excess of Fifty Thousand Dollars ($50,000) as a result of the above-styled action. In addition, it is *904 agreed that the said Fifty Thousand Dollars ($50,000) paid to Plaintiff as agreed herein, should be set off from any judgment rendered as a result of the above-captioned cause against ALLSTATE, and before any such judgment be entered in connection with the above-syled [sic] cause. However, it is also stipulated and agreed that the payment of the Fifty Thousand Dollars ($50,000) to Plaintiff as agreed herein, and the agreement to satisfy judgment contained herein and the agreement not to execute as contained herein, will not operate to prevent or hinder GRACE B. WILLIAMS and/or Plaintiff from filing a legal action against ALLSTATE for alleged bad-faith. (Emphasis supplied.)
Within five days after execution of the stipulation, the Fifty Thousand Dollars ($50,000) was paid to Kelly. The lower court ordered a supplemental pre-trial conference to determine the legal effect and consequences of the stipulation, and appellees moved to dismiss the cause with prejudice. The trial judge ruled that execution of the stipulation precluded "any actual or potential exposure to liability" on the part of Williams and therefore foreclosed any bad faith action against Allstate. The motion to dismiss was granted on the basis that no justiciable issues remained before the court.
Appellant contends that the stipulation clearly contemplated his future third-party action against the insurer for bad faith negotiations, an action which may be asserted after entry of final judgment in the original liability case. See, e.g., Cotton States Mutual Insurance Company v. Trevethan,
The essence of a "bad faith" insurance suit (whether it is brought by the insured or by the injured party standing in his place), is that the insurer breached its duty to its insured by failing to properly or promptly defend the claim (which may encompass its failure to make a good faith offer of settlement within the policy limits) all of which results in the insured being exposed to an excess judgment.[2] Under the arrangement stipulated to by the parties in this case, the insured could not be exposed to an excess judgment under any circumstances. If one was obtained, the insured was entitled to a complete satisfaction of it, as soon as the judgment became final or enforceable. The stipulation completely safeguarded the insured, and therefore it completely discharged the insurer's duty to its insured.
We do not think Critz v. Farmers' Ins. Group,
It is apparent that a mistake was made, at least by Kelly, as to the legal effect of the stipulation. However, he did not make any showing at the trial court level sufficient to establish grounds to release him from the stipulation;[4] nor did he file any motion before the trial court seeking to be relieved from it. Absent a basis to invalidate the stipulation, it is binding and enforceable, and we cannot relieve him from its legal consequences.[5]
AFFIRMED.
ORFINGER, J., concurs.
COWART, J., dissents with opinion.
COWART, Judge, dissenting:
While this case arises out of a simple automobile accident, the various legal issues and their relationships are complex. Among the three parties, appellant Kelly (the victim), appellee Williams (the insured tortfeasor's estate), and appellee Allstate (the insurer), there are five potential causes of action. 1. The first is a cause of action in tort in Kelly against Williams for the alleged negligence of Williams' deceased husband. 2. The second is a cause of action in contract in Williams against her insurance company, Allstate, on Allstate's contractual duties under its policy of vehicular liability insurance which includes an agreement to promptly pay covered claims. 3. The third cause of action is in contract in Kelly and against Allstate because Allstate's contractual duties to its insured, Williams, can now be directly enforced by Kelly under third party beneficiary concepts, this theory and cause of action being specifically recognized by our supreme court in Shingleton v. Bussey,
In the instant case, Kelly sued Williams for injuries received in a vehicle collision (cause 1 above) and joined Allstate (cause 3 above), with whom Williams had $50,000 of liability insurance. Kelly contended his damages far exceeded Williams' policy limits but offered to settle for those limits.[1] Allstate declined to settle. After long delay Allstate offered to settle for the policy limits. Kelly then contended that Allstate had acted in bad faith (by declining to settle for the policy limits when first offered and therefore having wrongfully delayed settlement) and asserted that he could recover a judgment in excess of the policy limits and that Allstate would be liable for the excess judgment (cause 5 above) because of its bad faith delay in settlement.[2] Allstate did not admit that Kelly's damages exceeded the policy limits or that it was guilty of bad faith but again offered, belatedly, to settle for the policy limits.[3] Kelly refused to make an unqualified settlement of all three of his causes of action but the following agreement was negotiated: In exchange for the immediate payment of the $50,000 policy limits, Kelly would retain his right to prove his total amount of damages but would agree to release Williams from liability for any amount of the ultimate judgment that exceeded the policy coverage. This release provision related only to Kelly's basic tort-negligence cause of action (cause 1 above). In the event the judgment did exceed the coverage, Kelly reserved his right to pursue Allstate in a separate bad faith settlement negotiation claim (cause 5 above) for any such excess amount; however, Kelly also agreed that Allstate's liability would be limited to $50,000 as to cause 3 above, with the caveat that this did not affect Allstate's possible future liability for bad faith (cause 5 above).[4] This release *907 provision related only to Kelly's third party beneficiary (Shingleton v. Bussey) contract case against Allstate (cause 3 above). The stipulation clearly contemplated that Kelly's damages in the instant case might ultimately be proved to exceed $50,000, and in that event, that Kelly might file a separate[5] suit for bad faith settlement negotiations against Allstate (cause 5 above).[6] The agreement even provided that if Kelly ultimately proved such bad faith, then Allstate would be given credit against the "excess over" judgment for the $50,000.[7] Upon learning of this settlement agreement, the trial court considered that it mooted the issues in the case and, on motion, dismissed *908 the action.[8] Kelly appeals contending that the amount of his damages resulting from the vehicle collision was in controversy between the parties (which under comparative negligence theory also includes issues as to the relative negligence of Kelly and Williams' decedent) and was not disposed of by the settlement agreement. Since his settlement reserved the right to pursue any excess over policy limits judgment against Allstate (cause 5 above), and in order to do that he must first recover judgment against Williams and Allstate in excess of the policy limits, the trial court's dismissal denied him that right and thwarted the intent of his settlement agreement.
The majority's interpretation of this settlement agreement is not only contrary to its obvious purposes and the intent of the parties but paves the way for unfair negotiation tactics[9] in future cases. Assuming, for purposes of argument, that Kelly has a valid claim against Allstate for its bad faith refusal to promptly settle, the settlement agreement, as construed by the majority, is devastatingly deceptive and sets a trap for unwary plaintiffs' counsel. The agreement repeatedly protects Kelly's right to proceed in a separate action against Allstate on a bad faith claim.[10] However, Kelly's future claim is predicated on his ultimately proving in this action that his damages actually exceeded the insurance coverage. Thus, it was carefully provided by the agreement that Kelly did not have to execute his Satisfaction of Judgment to Williams until after the conclusion of the instant case (both at trial and appeal) or, if the subsequent bad faith action were pursued, until after the conclusion of the subsequent action.[11] Kelly's partial settlement specifically provided that "the agreement to satisfy judgment ... will not operate to prevent or hinder [Kelly] from filing a legal action against Allstate for alleged bad faith." Notwithstanding the clear wording of these various provisions, the majority holds that the agreement precluded any actual or potential exposure to liability on the part of Williams and precluded Kelly from obtaining the needed judgment. Therefore Kelly has lost his potential cause of action against Allstate for bad faith. Thus, merely because Kelly settled his negligence tort claim against Williams (cause 1 above), and Allstate's contractual duties to him (cause 3 above), the majority precludes Kelly from pursuing Allstate's ultimate liability in tort for bad faith (cause 5 above). This agreement need not, and should not, be given this construction.
In Critz v. Farmers Insurance Group,
If the majority distinguishes Critz on the basis that Critz involved an assignment (which is no longer necessary in Florida), and the instant case does not, then it is a meaningless distinction and the above analysis still applies. The majority candidly admits that an assignment of the insured's cause of action is no longer necessary in Florida since the supreme court's decision in Thompson v. Commercial Union Insurance Company of New York. However, prior to Thompson, the only two bases upon which a victim/judgment creditor could proceed directly against an insurer on a claim of "bad faith" were: (1) where the insurance contract itself expressly provided for this procedure,[13] or (2) where the victim/judgment creditor obtained an assignment of the insured/judgment debtor's cause of action against its insurer.[14] The majority focuses on the fact that Kelly ultimately releases Williams from any liability for the excess judgment and holds that this forecloses his potential bad faith claim. Yet prior to Thompson, such release clauses were routinely *910 given to the judgment debtor as consideration for the agreement. See, e.g., Nationwide Mutual Insurance Company v. McNulty,
The written assignment discloses that in return for the assignment of the cause of action to him, McNulty [the victim] agreed that at the expiration of six months (if suit were not brought thereon by him) or "upon the conclusion" of legal proceedings if brought thereon by him against Nationwide, he would "satisfy all amounts of the aforesaid judgments in excess of the coverage afforded."
McNulty v. Nationwide Mutual Insurance Company,
Since I cannot agree with the necessity for the harsh result reached in the instant case or the law and pitfalls being established for litigants and counsel in the future, I respectfully dissent.
NOTES
[1] The stipulation encompassed the liability of Grace B. Williams individually, and as the personal representative of Larry Arthur Williams (her deceased husband) and his estate.
[2] See American Fire & Cas. Co. v. Davis,
[3] Thompson v. Commercial Union Ins. Co. of N.Y.,
[4] Florida East Coast Railway Co. v. Thompson,
[5] Dorson v. Dorson,
Notes
[1] While the refusal of an injured party's offer to settle for an amount equal to or less than the policy limits is usually asserted as evidence of the insurance company's "bad faith" in settlement negotiation, it is not the only evidence admissible. In certain circumstances, the insurance company can be liable on a bad faith claim even if the injured party has failed to ever make an offer of settlement for an amount covered by the insurance policy. See, e.g., General Accident Fire and Life Assurance Corp. Ltd. v. American Cas. Co.,
[2] The normal scenario in an "excess judgment" situation starts with the injured party, as plaintiff, bringing suit against the alleged tortfeasor and his insurer, as co-defendants. If the action results in a judgment for plaintiff in excess of the tortfeasor's insurance coverage, the defendant tortfeasor is potentially accountable for such excess. When the insurance company has acted in "bad faith" during prejudgment settlement negotiations, the original defendant tortfeasor has a cause of action against the company for the amount of the original judgment in "excess" of the policy limits. American Fire and Cas. Co. v. Davis,
Often the defendant tortfeasor is judgment proof and the defendant's cause of action back against the insurance company is of more value to the original plaintiff (judgment creditor by now) than the original judgment. Therefore, in the past, releases were often given in exchange for an assignment of the cause of action. See, e.g., Nationwide Mut. Ins. Co. v. McNulty, Co.,
[3] It should be noted that a belated offer to settle does not necessarily foreclose a claim of bad faith negotiation on the insurer's part and therefore an insurer can still be ultimately held liable for an excess judgment notwithstanding its late-hour attempt to settle for the policy limits. See, e.g., Boston Old Colony Ins. Co. v. Gutierrez,
[4] Kelly's potential cause of action for Allstate's alleged bad faith does not mature until a judgment in excess of the policy limits is entered in the negligence action. 7C Appleman, Insurance Law and Practice, § 4712 (Berdel ed. 1979). Although Florida courts allow subsequent litigation of a bad faith claim in the same case as the negligence claim, see note 5 infra, see, e.g., Cotton States Mut. Ins. Co. v. Trevethan,
[5] Although the bad faith claim can be pursued in a separate cause of action, it is not necessarily required to be raised in this manner. The question usually arises in the original negligence action after a judgment in excess of the policy limits is entered against both the defendant insured and the defendant insurance company. The insurance company then files a post-judgment motion to limit the judgment against it to the amount of the policy limits. When the policy limits are in question, the Second District Court of Appeal requires the insurance company to raise the issue of limitation by pleading in the nature of a cross-claim served on the other parties (the insured and plaintiff/judgment creditor). Williams v. Banning,
These cases illustrate that the claim for bad faith can be pursued in the original negligence action, and therefore Kelly's present cause of action still has disputed factual issues of damages and bad faith. Notwithstanding Kelly's choice to proceed on the bad faith claim in a separate cause of action, the above cases still illustrate that a judgment in excess of the policy limits is a prerequisite for any future allegation of bad faith negotiating. See also 7C Appleman, Insurance Law and Practice, § 4712 (Berdel ed. 1979).
[6] Thompson v. Commercial Union Ins. Co. of N.Y.,
[7] Of course, before the settlement Kelly was entitled to collect any excess over judgment from Williams without proof of any bad faith on anyone's part. By his agreement Kelly gave up this right in exchange for the right to an immediate recovery of $50,000, reserving only his right to assert a future claim of bad faith negotiating on the part of Allstate. Such a settlement is not uncommon and agreements of this type have been made even before the negligence action was filed. See Critz v. Farmers Ins. Group,
[8] This ruling came as a windfall to appellees. After the stipulated partial settlement dated June 22, 1979, the action remained pending until August 10, 1979, when the trial judge, sua sponte, ordered a supplemental pretrial conference specifically to determine "the legal effect and consequences of the stipulation dated June 22, 1979, and filed herein, and whether or not any justiciable issue remains for disposition by this court. At the time of said hearing, this court will entertain any and all motions heretofore or hereafter filed in this cause by any party." No motion was then pending, but appellees' counsel took the hint and on August 24, 1979, filed a motion to dismiss, which was granted. The point is that counsel did not consider that the stipulation disposed of the pending action and moved for dismissal only after prompting by the trial judge.
[9] Nothing herein is intended to suggest that appellees' counsel acted other than in keeping with their good reputation as able, careful and ethical attorneys. See footnote 8, supra. The stipulation/settlement in this case was suggested and drawn by plaintiff's counsel. However, the unarticulated effect of the majority's opinion is to hold that a plaintiff cannot partially settle causes of action 1 and 3 without necessarily settling cause of action 5. This harsh result denies the parties the ability to negotiate a partial settlement. It precludes such a settlement notwithstanding each party's belief it is in their own best interest to enter such an agreement. If this is the intent of the majority's opinion, they should forthrightly say so, so that counsel may be clearly aware of this legal limitation.
[10] The nine paragraph agreement refers to the potential future suit for "bad faith" no less than nine separate times.
[11] How could Kelly be expected to execute a "Satisfaction of Judgment" until after he had a judgment?
[12] Historically, the only true practical distinction between a covenant not to sue and a release was its effect upon a joint tortfeasor, see 10 Fla.Jur.2d Compromise, Accord, and Release § 23 (1979), and even this distinction has been statutorily abrogated. See § 768.041, Fla. Stat. (1979). However, this does point up a fallacy in the majority's reasoning. While the insured and the insurer are co-defendants in the case, they are not joint tortfeasors. Appellant's claim against the insured is based on general negligence theory; however, appellant's remaining claim against the insurance company is a completely separate tort of bad faith settlement negotiation. With respect to that cause of action the insurer is not a joint tortfeasor with the insured.
[13] Compare Auto Mut. Indem. Co. v. Shaw,
[14] See, e.g., Nationwide Mut. Ins. Co. v. McNulty,