No. 79-535 | Ohio | Feb 20, 1980
The issue presented is whether the trial court correctly determined there to be no genuine issue as to the insurance carriers’ bad faith representation or breach of contract, justifying judgment for the insurance carriers as a matter of law.
This court’s most recent opinion on the requirements for an insured’s recovery of damages from a judgment in excess of policy limits, Wasserman v. Buckeye Union Cas. Co. (1972), 32 Ohio St. 2d 69" court="Ohio" date_filed="1972-12-06" href="https://app.midpage.ai/document/wasserman-v-buckeye-union-casualty-co-6754984?utm_source=webapp" opinion_id="6754984">32 Ohio St. 2d 69, supports the trial court’s ruling in connection with the tort claim. In Wasserman, this court, relying on Slater v. Motorists Mutual Ins. Co. (1962), 174 Ohio St. 148, paragraphs one and two of the syllabus, sustained a jury instruction defining bad faith as “embracing] more than bad judgment or negligence,” and as equivalent to fraud, deceit, or dishonest purpose, etc.
II.
The administrator alternatively argues that summary judgment was improper because the insurance carriers had a
The trial court held that an action for damages resulting from a judgment in excess of policy limits could not be maintained in contract, while the Court of Appeals held that even if such action could be maintained in contract, the bad faith standard, as defined in Wasserman, supra, would nevertheless apply. Thus, both courts granted summary judgment because they ruled that bad faith, as to which there was no genuine issue, was a prerequisite to the insurance carriers’ liability.
We sustain the courts’ rulings but limit our holding to the covenants with which we are faced. Both insurance policies stipulate merely that the insurer “shall defend any suit,”
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
The jury instruction in Wasserman quoted verbatim from paragraph two of the syllabus in Slater, which reads:
“A lack of good faith is the equivalent of bad faith, and bad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.”
The insurance carriers contend that they did not appeal the judgment because the award was merely unexpected, and not so excessive that it was likely to be set aside on appeal. Since liability was conceded, there was thus little reason to appeal. Additionally, since the insured herein was a bankrupt estate, the conflict of interest normally attending this situation was absent. See Bourget v. Government Employees Ins. Co. (C.A. 2, 1972), 456 P.2d 282" court="Mont." date_filed="1969-06-16" href="https://app.midpage.ai/document/gunderson-v-nolte-8025830?utm_source=webapp" opinion_id="8025830">456 P. 2d 282. In any event, the insurance carriers’ decision to forego appeal and their failure to notify the administrator of this decision are “no more than negligent conduct which does not constitute ‘bad faith’ under the standards set by this court.” Wasserman, supra, at page 73.
The administrator argues in effect that the insurance carriers should have settled because they knew or should have known the damage award would exceed their policy limits, and also argues that they failed to communicate or cooperate in defending the action. These allegations do not raise the issue of bad faith.
In relevant part, these covenants to defend provide that an insurer “shall defend any suit alleging such bodily injury or property damage which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent* * *