Spray v. Continental Casualty Company , 86 Or. App. 156 ( 1987 )

ROSSMAN, J.

Defendant¹ insurer appeals a judgment awarding plaintiff $106,304.63 for injuries allegedly caused by defendant’s failure properly to analyze, evaluate and attempt to settle a wrongful death action brought against plaintiff and $18,500 in attorney fees. We affirm.

Plaintiff is a medical doctor with a specialty in internal medicine. From 1972 to 1978, he operated an out-patient clinic for young drug abusers. The wrongful death action was brought against him by the estate of a clinic patient who died in 1977 of an overdose of Darvon prescribed by plaintiff. The gravamen of the complaint, which alleged general damages in the sum of $250,000, was that plaintiff had been negligent in permitting the drug to be dispensed to the deceased in an amount sufficient to cause his death if ingested all at once.

When the action was commenced, plaintiff was insured by defendant under an insurance policy with a liability limit of $100,000. The policy provides that defendant will defend any lawsuit brought against the insured arising out of the practice of his profession and retains to defendant the right to investigate, negotiate and settle any such claim. Pursuant to the terms of the policy, defendant hired an attorney to represent plaintiff on the wrongful death claim and suggested that he retain private counsel to advise him concerning the potential exposure to excess liability.

A month before trial, the attorney hired by defendant to represent plaintiff solicited a settlement offer from the malpractice plaintiffs attorney, who responded with an offer to settle for $200,000, which was twice the policy limit. Defendant did not counteroffer or make any further attempt to settle the wrongful death case and it went to trial. The jury found that the deceased’s estate had been damaged in the sum prayed for and that plaintiff was 75 percent at fault and the deceased was 25 percent at fault. The trial court entered judgment against plaintiff in the amount of $185,000, plus costs, after deducting from the net verdict $3,500, which had been accepted by the estate in settlement of its claim against two manufacturers of Darvon. The damages awarded plaintiff in this action represent the amount of the judgment in excess of plaintiffs insurance policy liability limit, plus interest from the date of the judgment.

Turning to the trial of this case, defendant’s representative testified that it made no effort to settle the wrongful death claim against plaintiff, because it believed that it could be successfully defended and that, even if a verdict was returned against plaintiff, it would fall far short of the policy limit. This evaluation of the case was based in part on the findings of the Oregon Medical Association Professional Assessment Committee, which had reviewed the allegations against plaintiff at defendant’s request and had unanimously concluded that plaintiffs conduct was defensible, both on the basis of medical considerations and on the fact that the deceased had a history of drug abuse. Defendant’s representative also testified that there was no indication that a reasonable settlement offer would be accepted.

Defendant assigns as error the trial court’s denial of its motion for directed verdict on plaintiffs allegations that it was negligent in failing to “attempt to settle the case * * * so as to avoid personal excess liability to plaintiff’ and in failing to “analyze and evaluate the case against plaintiff so that a proper settlement offer could have been made.” On review, we examine the evidence in the light most favorable to plaintiff and determine whether there was sufficient evidence to warrant submission of the question of defendant’s negligence to the jury. Maine Bonding v. Centennial Ins. Co., 298 Or 514, 523, 693 P2d 1296 (1985).

In Maine Bonding, the Supreme Court summarized the standard of care an insurer owes to the insured in conducting the defense of a claim against the insured:

“[T]he insurer must use such care as would have been used by an ordinarily prudent insurer with no policy limit applicable to the claim. The insurer is negligent in failing to settle, where an opportunity to settle exists, if in choosing not to settle it would be taking an unreasonable risk — that is, a risk that would involve chances of unfavorable results out of reasonable proportion to the chances of favorable results.” 298 Or at 518.

The court noted that, although its previous decisions had referred to the concepts of “good faith” and “bad faith,” those terms tended to inject a subjective element into the formula— the insurer’s state of mind — and that “[t]he insurer’s duty is best expressed by an objective test: Did the insurer exercise due care under the circumstances.” 298 Or at 519.

Defendant contends that it was not negligent as a matter of law, because, under its evaluation of the case, the risk of an unfavorable result was slight and, given the fact that the only settlement offer made by the deceased’s estate was for $200,000, it had no reasonable opportunity to settle. It contends, therefore, that under the circumstances it had no duty to make a settlement offer. It relies on Eastham v. Oregon Auto. Ins. Co., 273 Or 600, 540 P2d 364, 542 P2d 895 (1975), an excess liability case in which the court held that the trial court had erred in submitting the question of the insurer’s liability to the jury. We do not think that that case aids defendant here. In Eastham, liability on the underlying claim had been admitted; thus the only issue was the amount of damages. The court concluded that there was no jury question about the insurer’s excess liability merely because it did not respond with a counteroffer to the plaintiffs offer on the day of trial to settle for the policy limit amount, which was more than twice the amount seen by experienced people as the probable settlement value.² However, in Eastham, the court was applying the pre-Maine Bonding standard of bad faith. The question was whether there was evidence from which the jury could infer that the insurer acted in bad faith in failing to counteroffer. In Maine Bonding, the court clarified that the test is not one of subjective good faith or bad faith, but is an objective, ordinarily prudent insurer standard. Thus, the court’s evaluation of the evidence of bad faith in Eastham provides little guidance for us here, where the facts and the standard by which they are evaluated are different.

The duty that an insurer owes to the insured to settle a claim if, in choosing not to settle, it would be taking an unreasonable risk, does not end when the trial begins. Here, the jury may have found that, during the course of the trial, it became increasingly apparent that defendant’s pretrial evaluation was ill-founded. Four experts testified on behalf of the deceased’s estate. Dr. Spray acknowledged that one, whose testimony was sharply critical of his prescription practices, was a leading authority in the drug treatment field. The estate also called ten character witnesses, including a police officer, two ministers and a former Rose Festival princess. Plaintiff here was the sole witness for his defense.

There was evidence that the estate would have settled for $55,000 to $75,000 up to the time the jury returned its verdict. Even before the trial began, defendant had evaluated the case as being worth $50,000. The events of the trial may have affected the reasonable valuation of the claim. However, the attorney hired by defendant to represent plaintiff was not authorized to settle³ and, during the trial, defendant did not have a representative with the authority to settle the claim on hand or in contact with the attorney representing plaintiff. The estate presented numerous witnesses, and no evidence was offered to corroborate or validate plaintiffs testimony in his own defense. The question is not whether defendant acted in good faith, but whether it acted reasonably. Because we conclude that there was sufficient evidence from which the jury reasonably could have concluded that the risk of an unfavorable result became increasingly apparent during the course of the trial, to the point that an ordinarily prudent insurer would have made an attempt to settle before the jury returned its verdict, that defendant had a reasonable opportunity to settle the case and that it took an unreasonable risk in choosing not to settle, we hold that the trial court did not err in allowing the issue of defendant’s negligence to go to the jury.⁴

Defendant next contends that the trial court should not have granted plaintiffs motion, at the close of the evidence, to strike allegations of comparative fault. Defendant alleged that plaintiff was at fault in two particulars: he “maintained he was free of any negligence in the course of his treatment of [decedent] and desired and insisted that the lawsuit brought against him * * * be defended,” and he was practicing medicine while maintaining only $100,000 of insurance. Assuming without deciding that comparative fault could be a defense to an excess liability claim, here the trial court did not •err in removing the allegations from the jury. As to the first allegation, there was no evidence that plaintiff would have rejected an offer of settlement or that defendant’s decision whether to settle would have been different if plaintiff had demanded settlement. As to the second allegation, the policy limit of the insurance contract in no way affected defendant’s duty to defend and to settle. The duty, which arose out of the contract, would have been the same whether the limit of liability was $5,000 or $1,000,000. If, as here, defendant breached the contract duty by not exercising the care of an ordinarily prudent insurer with no policy limit applicable to the claim, it is liable for the excess judgment, regardless of the amount of the policy limit.

Finally, defendant challenges the award of attorney fees pursuant to ORS 743.114.⁵ In Groce v. Fidelity General Insurance, 252 Or 296, 448 P2d 554 (1968), an excess liability action, the Supreme Court said that “the rights of the parties in these cases are contractual, and that it is consistent with the purposes of ORS 743.114 to allow attorney fees * * 252 Or at 312; see Maine Bonding v. Centennial Ins. Co., 64 Or App 97, 667 P2d 548, aff’d on other grounds 298 Or 514, 693 P2d 1296 (1985). There was no error.⁶

We have reviewed defendant’s other assignments of error, all of which involve jury instructions, and find them to be without merit. The instructions given were correct statements of the law. Defendant’s requested instruction concerning its liability for the fault or negligence of the attorney who represented plaintiff at trial would not have added anything to the already adequate instructions, and the failure to give it did not create an erroneous impression of the law in the minds of the jurors. See Waterway Terminals v. P.S. Lord, 256 Or 361, 474 P2d 309 (1970).

Affirmed.

1 The claim against defendant Moore was dismissed before trial, and he is not a party to this appeal.

2 The dissent is not only wrong about the applicability of Eastham to this case, it also misstates the facts in that case. It states that, in Eastham, there was a day of trial offer to settle “for an amount more than double the policy limits.” However, the offer to settle was for $50,000 or the policy limit, whichever was less. The policy limit in that case was $25,000. 273 Or at 605.

3 The statement in the dissent that the trial attorney “believed the case had a value of between $15,000 and $25,000,” 86 Or App at 164, is misleading. Although the attorney testified that he valued the case at that amount, he also testified that he never discussed his evaluation of the case with any representative of defendant. Thus, defendant had no knowledge of the attorney’s assessment of the case, other than that he thought it was defensible.

4 The dissent ignores the most relevant evidence, that the trial had gone badly and that defendant’s evaluation of the value of the case, however reasonable it may have been until that time, was likely no longer accurate.

5 ORS 743.114 provides, in part:

“If settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind or nature, and the plaintiffs recovery exceeds the amount of any tender made by the defendant in such action, a reasonable amount to be fixed by the court as attorney fees shall be taxed as part of the costs of the action and any appeal thereon.

6 We last faced this issue in Bollam v. Fireman’s Fund Ins. Co., 76 Or App 267, 709 P2d 1095 (1985), where we affirmed by an equally divided court a trial court’s denial of attorney fees. The Supreme Court opinion reversing our decision did not address the attorney fees issue. Bollam v. Fireman’s Fund Ins. Co., 302 Or 343, 730 P2d 542 (1986).