HARRIS v AMERICAN GENERAL LIFE INS
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No. 82-219 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982 ALTON P. HARRIS, Plaintiff and Respondent, AMERICAN GENERAL LIFE INSURANCE COMPANY OF DELAWARE, Defendant and Appellant. Appeal from: District Court of the Eighteenth Judicial District, In and for the County of Gallatin Honorable Joseph B. Gary, Judge presiding. Counsel of Record: For Appellant: Berg, Coil, Stokes & Tollefsen, Bozeman, Montana Gig A. Tollefsen argued, Bozeman, Montana For Respondent: Nash & Nash, Bozeman, Montana Donald Nash and Mike Nash argued, Bozeman, Montana Submitted: November 10, 1982 Decided: February 9, 1983 FEB Filed. 9 - 1983 Mr. Chief Justice Prank I. Haswell delivered the Opinion of the Court. Defendant insurance company appeals from a judgment entered in the District Court of the Eighteenth Judicial District assessing $30,000 in punitive damages against defendant. We affirm. On September 8, 1970, defendant issued a $10,000 life insurance policy with a $10,000 accidental death benefit rider to plaintiff's son, Tom Harris. B 697,465. The policy number was Plaintiff, Tom's father, was the beneficiary. The accidental death rider provided: "The Accidental Death Benefit provided by this supplementary agreement will not be payable if the Insured's death: "2. Results directly or indirectly from any of the following causes: "(c) Suicide or any attempt thereat, while sane or insane; "(f) Voluntary or involuntary "(i) Asphyxiation from or inhalation of gas except in the course of the Insured's occupation, or "(ii) Taking sedative of . . ." any poison, drug, or Tom Harris checked into the Rainbow Motel in Bozeman about 11:30 p.m. on October 10, 1979. had difficulty writing his name. He appeared dazed and The next morning (October 11) Harris paid for another day at the check-in desk and appeared normal to the hotel manager. Harris was found dead, slumped in the shower of his room with the shower water pouring on him, at about 8:15 a.m. on G c t o b e r 1 2 , standing water 1979. T h e r e was abour: two inches of i n t h e room, and w a t e r was r u n n i n g o u t u n d e r t h e door t o t h e o u t s i d e . On March 24, 1980, plaintiff d e f e n d a n t f o r b e n e f i t s under the policy listed a claim with t h e p o l i c y which was r e c e i v e d by d e f e n d a n t on A p r i l 7 , 1980. panying filed The d e a t h c e r t i f i c a t e accom- t h e c a u s e of death a s "pending r e s u l t s of s t u d i e s of s t a t e l a b " b e c a u s e an a u t o p s y had been performed and no called a local conclusive ex-agent, results requesting received. a Defendant certificate showing By t h i s t i m e r e s u l t s had b e e n o b t a i n e d t h e cause of d e a t h . showing t h e c a u s e o f d e a t h t o b e a n o v e r d o s e o f chloroform througn i n h a l a t i o n . On J u n e 11, 1 9 8 0 , d e f e n d a n t s e n t t o plaintiff for the benefits ($10,775.28, dividend due which included life premium refund, post-mortem "Accepted i n full of settlement Insurance all Company on with policy t h e check s t a t i n g , Life additions) insurance e n d o r s e m e n t on t h e back of final up a basic restrictive General paid the the and and on a check claims against Policy B 697465." e n d o r s e m e n t a p p e a r s t o be s t a m p e d on t h e back of with a blank following the word "Policy" and American The t h e check the policy number was h a n d w r i t t e n i n t h e b l a n k . Defendant denied a c c i d e n t a l d e a t h b e n e f i t s because of t h e p o l i c y l a n g u a g e s e t o u t above and t h e f a c t t h a t c h o l o r o f o r m i s b o t h a g a s and a d r u g a n d t h a t t h e fiozeman P o l i c e Department concluded that the death was an accidental overdose or suicide. On A u g u s t 2 2 p l a i n t i f f (through h i s attorney) returned t h e c h e c k and demanded t h a t d e f e n d a n t remove t h e r e s t r i c t i v e sndorsement. 'The f o l l o w i n g p a r a g r a p h was included in the August 22, 1980, l e t t e r : "We h e r e b y demana t h a t you r e t u r n t o t h i s o f f i c e t h e f a c e v a l u e of p r o c e e d s of t h e policy without r e s t r i c t i o n s a s t o r i g h t of H a r r i s t o s e e k b a l a n c e o f d o u b l e indemnity b e n e f i t s , together with any a c c u m u l a t i o n of d i v i d e n d and i n t e r e s t t o d a t e of your payment." On S e p t e m b e r 5 , 1 9 8 0 , p l a i n t i f f f i l e d s u i t s e e k i n g t h e $10,i)1)0 basic benefits, $10,000 accidental death benefits and $ 5 0 , 0 0 0 i n p u n i t i v e damages. I n a l e t t e r d a t e d S e p t e m b e r 9, defendant mailed t h e same c h e c k back to plaintiff with t h e r e s t r i c t i v e e n d o r s e m e n t c r o s s e d o u t a n d i n i t i a l e d by a respresentative of defendant. Plaintiff then cashed the in response to c h e c k on S e p t e m b e r 1 6 , 1 9 8 0 . Interrogatories were exchanged and d e f e n d a n t ' s i n t e r r o g a t o r y r e q u e s t i n g t h e names o f w i t n e s s e s plaintiff i n t e n d e d t o c a l l a n d w h a t e a c h would t e s t i f y t o , plaintiff listed Kent ( a former a g e n t of Lewis defendant) a n a s t a t e d t h a t Lewis would t e s t i f y r e g a r d i n g t h e d i f f i c u l t y experienced in obtaining the i n i t i a l tender of money f r o m defendant. Lewis l a t e r t e s t i f l e d a t t r i a l a b o u t d e f e n d a n t ' s financial condition. Eight days p r i o r dant with an exhibit to trial plaintiff showing defendant's furnished defenassets and lia- b i l i t i e s which p l a i n t i f f had n o t l i s t e d a s a n e x h i b i t on t h e pretrial order. 'The e x h i b i t was l a t e r admitted a t t r i a l , o v e r d e f e n d a n t ' s o b j e c t i o n , a s p l a i n t i f f ' s e x h i b i t no. 1 2 . After a jury trial and i n s t r u c t i o n on p u n i t i v e dam- a g e s , t h e j u r y r e t u r n e d a v e r d i c t on s p e c i a l i n t e r r o g a t o r i e s denying the d e f e n d a n t had accidental acted death i n bad benefits f a i t h and but finding awarding that $30,000 in purl1 t i v e darnayes. standing D e f e n d a n t ' s m o t i o n s f o r judgment n o t w i t h - the verdict ( o n e of the g r o u n d s was plaintiff's a new t r i a l were f a i l u r e t o p r o v e a c t u a l d a m a g e s ) and f o r d e n i e d i n a memorandum o r d e r w h e r e t h e D i s t r i c t C o u r t f o u n d plaintiff's date being the a c t u a l damages t o b e (1) t h e i n t e r e s t f r o m t h e c l a i m should have been p a i d forced to pay an attorney and to (2) plaintiff's collect the basic benefits. D e f e n d a n t a p p e a l s from t h e judgment e n t e r e d and from t h e d e n i a l o f h i s m o t i o n s f o r a new t r i a l a n d j u d g m e n t n o t w i t h s t a n d i n g t h e v e r d i c t and p r e s e n t s t h e s e i s s u e s f o r o u r consideration: Was 1. the evidence insufficient to entitle the p l a i n t i f f t o p u n i t i v e damages? 2. Did t h e D i s t r i c t C o u r t p r o p e r l y i n s t r u c t t h e j u r y on p u n i t i v e damages? 3. Did t h e D i s t r i c t C o u r t i m p r o p e r l y a l l o w t h e a d m i s - s i o n of e v i d e n c e n o t l i s t e d i n t h e p r e t r i a l o r d e r ? Regarding t h e f i r s t i s s u e d e f e n d a n t a r g u e s t h a t p l a i n tiff failea to prove p u n i t i v e damages: Code for damages. which two things which (1) a v i o l a t i o n o f a penalty Defendant is contends are the and first (2) State ex rel. 131, 423 P.2d ( 1 9 6 2 ) , 140 Mont. L a r s o n v. 598; ( 1 9 7 1 ) , 1 5 7 Mont. D i s t r i c t Court S t a t e ex r e l . 564, actual element r e q u i r e d by t h e f o l l o w i n g l i n e o f c a s e s : W e s t f a l l v . Insurance Corporation for t h e Montana I n s u r a n c e prescribed, that required is Motors 374 P.2d 96; ( 1 9 6 7 ) , 1 4 9 Mont. Cashen v. D i s t r i c t Court 4 0 , 482 P.2d 5 6 7 ; a n d , F i r s t S e c u r i t y Bank o r Bozeman v. Goddard ( 1 9 7 9 ) , 1 8 1 Mont. 4 0 7 , 5 9 3 P.2d 1040. D e f e n d a n t c o n c l u d e s t h i s a s p e c t o f i t s a r g u m e n t by c l a i m i n g t h a t t h e r e were no i n s u r a n c e c o d e v i o l a t i o n s . With regard defendant argues to the that second there element, must be a a c t u a l damages, finding damages b e f o r e p u n i t i v e damages may be a w a r d e d . contends there was no evidence of actual of actual Defendant damages here b e c a u s e t h e j u r y d e t e r m i n e d t h a t p l a i n t i f f was n o t e n t i t l e d t o the accidental death benefits. Appellant's all, showed a v i o l a t i o n o f plaintiff taken. arguments a r e n o t w e l l F i r s t of t h e Montana I n s u r a n c e Code f o r which a p e n a l t y i s p r e s c r i b e d . I t is uncontroverted h e r e t h a t p l a i n t i f f was c l e a r l y e n t i t l e d t o t h e b a s i c l i f e benefits of the policy and that defendant b i l i t y under t n e a c c i d e n t a l d e a t h r i d e r . c l a i m f o r b e n e f i t s on March 24, J u n e 11, 1 9 8 0 , t h a t defendant tendered rights The that plaintiff under check e x h i b i t no. the was could accidental introduced filed a t h e check w i t h t h e Even t h o u g h p l a i n t i f f was he w i s e l y r e f u s e d t o n e g o t i a t e was n o t u n t i l S e p t e m b e r 9 , check Plaintiff lia- 1 9 8 0 , a n d i t was n o t u n t i l r e s t r i c t i v e endorsement a s noted. a layman, contested t h e check and i t 1980, t h a t d e f e n d a n t t e n d e r e d a cash without death portion into evidence forfeiting of the his policy. as plaintiff's 7. S e c t i o n 33-18-201(13), MCA, of t h e Montana Insurance Code p r o v i d e s : "Unfair claim s e t t l e m e n t p r a c t i c e s p r o hibited. No p e r s o n may, w i t h s u c h f r e quency a s t o i n d i c a t e a g e n e r a l b u s i n e s s p r a c t i c e , do any of t h e f o l l o w i n g : " ( 1 3 ) f a i l t o promptly s e t t l e claims, i f l i a b i l i t y h a s become r e a s o n a b l y c l e a r , under one p o r t i o n of t h e i n s u r a n c e p o l i c y coverage i n order t o i n f l u e n c e s e t t l e ments under o t h e r p o r t i o n s of t h e i n s u r - ance policy coverage; " As indicated by the facts above, appellant violated this statute. The assistant vice-president and manager of life and disability claims testified regarding defendant's general business practice under questioning by plaintiff's attorney as follows: "Q. When you sent your check, you indicated that you had stamped on the back a restrictive endorsement that, in effect, says it is payment in full of all claims against the company attributable to the death of Thomas Harris, isn't that correct? A. As is our custom, Mr. Nash. . And it is your custom when there's liability under one portion, liability to pay, that is liability, for the company to pay on the one portion and a disputed liability under the other portion, to tender the part you agree you have to pay, in full settlement? A. I'm not sure I understand what you're driving at. "Q. That there's an portion to portion in is your general practice, if agreed portion and a disputed a claim, you tender the agreed full settlement? A. Yes." ,That it is the defendant's practice to so endorse settlement checks is underscored by the fact that an examination of the check itself reveals that the endorsement has been stamped thereon with a blank after the word "Policy" with plain- tiff's number inserted in handwritten form. to conclude that other policies are This leads one handled in similar fashion. Moreover, there is a general penalty prescribed for a violation of section 33-18-201(13), MCA. MCA, gives a penalty i.e., the Montana for each violation Insurance Code, Section 33-1-104, of Title "this code," 33 (section 33-1-101, MCA) and section 33-18-201(13), MCA, is clearly in Title 33. This general penalty statute was correctly a d d r e s s e d a n d a p p l i e a by J u s t i c e S h e e h y i n G o d d a r d , s u p r a . A p p e l l a n t ' s n e x t c o n t e n t i o n on t h e f i r s t i s s u e is t h a t Here a g a i n , w e t h e e v i d e n c e f a i l e d t o show a c t u a l d a m a g e s . I t is u n d i s p u t e d t h a t t h e $10,775.28 disagree. check w i t h t h e r e s t r i c t i v e e n d o r s e m e n t was d a t e d J u n e 11, 1 9 8 0 ( p l a i n t i f f ' s e x h i b i t no. 7). D i v i d e n d s , a premium r e f u n d a n d p a i d up additions w e r e c a l c u l a t e d t o J u n e 11, 1 9 8 0 , by d e f e n d a n t and included in t h e check. Defendant returned t h e check w l t h o u t t h e e n d o r s e m e n t a c c o m p a n y i n g a l e t t e r d a t e d September 9, 1980, w i t h t h e s t u b s t a p l e d t o t h e l e t t e r showing t h e c a l c u l a t i o n s t o J u n e 11, 1 9 8 0 ( p l a i n t i f f ' s e x h i b i t n o . Defendant did not issue amount d u e p l a i n t i f f tnff new check t o September 9 , as d i c t a t e d and a by sound or recalculate business practice. l o s t approximately t h r e e months o f he have tendered the gained check uncontroverted benefits had the without that plaintiff under the insurance the Thus, interest that company endorsement. initially It is also hired an attorney t o recover P l a i n t i f f 's policy. the a s demanded by p l a i n - plaintiff would 11). counsel on ora1 a r g u m e n t s t a t e d t h a t t h e premium r e f u n d shown by e x h i b i t no. 11 s h o r t e d p l a i n t i f f $ 1 4 . 1 1 . W f i n d t h e r e was s u f f i c i e n t e v i d e n c e o f e ages a c t u a l dam- before of punitive t h e a c t u a l damages need o n l y be nominal. Butcher damages, v. Fetranek actual the Court. To s u p p o r t ( 1 9 7 9 ) 1 1 8 1 Mont. damages--$20,000 in 358, an award 5 9 3 P.2d punitive 743 damages ($925 i n upheld on appeal). I n P a u v e r v . W i l k o s k i e ( 1 9 4 9 ) , 1 2 3 Mont. P . 2d 4 2 0 , t h e j u r y g a v e t h e p l a i n t i f f no a c t u a l damages b u t awarded appeal. $2,500 in punitive d a m a g e s w h i c h was 228, 211 affirmed on 'I'he Cour t n o t e d t h a t t h e plaintiff ' s o u t - o f - p o c k e t e x p e n s e s shown on t h e r e c o r d , i n c l u d i n g a t t o r n e y f e e s , were s u f f i c i e n t t o u p h o l d t h e p u n i t i v e damage award. Lauman v. St.Rep. 499 value Pion t ( t h e f a i l u r e of damages . the jury to preclude d a m a g e s ) and M i l l e r v . Fox ( 1 9 7 7 ) , 1 7 4 Mont. of an p u n i t i v e damages was 830, 38 f i x t h e monetary not ( a n award P.2d 626 does 804 as (1981), Lee See a l s o , award of punitive 5 0 4 , 5 7 1 P.2d affirmed where the t r i a l j u d g e f a i l e d t o p u t a v a l u e on a c t u a l d a m a g e s ) . The s e c o n d District issue i s s u e r a i s e d by Court's of Instruction punitive appellant The on the addresses 1 4 which 0 damages. focuses the pertinent part of the i n s t r u c t i o n a s g i v e n a p p e a r s below: " P l a i n t i f f h a s a s k e d f o r p u n i t i v e exemp l a r y damages which may be a l l o w e d by you. One who h a s s u s t a i n e d damage by t h e o p p r e s s i o n , f r a u d , o r m a l i c e of a n o t h e r may r e c o v e r i n a d d i t i o n t o h i s a c t u a l damages, damages f o r t h e s a k e o f e x a m p l e a n d by way o f p u n i s h i n g s u c h o t h e r party." Appellant correctly points out that t h e above para- g r a p h i s n e a r l y i d e n t i c a l t o t h e f i r s t p a r a g r a p h o f Montana J u r y I n s t r u c t i o n G u i d e No. 35, with t h e exception t h a t t h e p h r a s e " p r o v i d e d you f i r s t f i n d t h a t t h e p l a i n t i f f h a s s u f f e r e d a c t u a l damage," which a p p e a r s a t t h e end o f s e n t e n c e of MJIG No. 3 5 , was o m i t t e d . I n s t r u c t i o n No. 14 i s improper the f i r s t Appellant argues t h a t because it does not state t h a t t h e j u r y must f i n d t h a t d e f e n d a n t v i o l a t e d a p r o v i s i o n of the Montana prescribed fails to penalty is b e f o r e a w a r d i n g p u n i t i v e damages and b e c a u s e it require Insurance the jury Code to for find which actual a damages before a w a r d i n g p u n i t i v e damages. A p p e l l a n t ' s c o n t e n t i o n regarding t h e i n s u f f i c i e n c y of t h e i n s t r u c t i o n o n a c t u a l damages is d i s p o s e d o f t h e by t h e Fauver case, supra. In Fauver, t h e Court noted that the t r i a l c o u r t i n s t r u c t i o n s d i d n o t d e f i n e damages o r i n s t r u c t the jury a s t o t h e e l e m e n t s of damage t o be c o n s i d e r e d by t h e j u r y o r e x p l a i n a c t u a l damages o r c o m p e n s a t o r y damages or inform t h e j u r y damages or punitive how s u c h damages d i f f e r damages. Yet from e x e m p l a r y t h e Court affirmed the award o f p u n i t i v e d a m a g e s , r e a s o n i n g t h a t t h e r e c o r d showed t h a t t h e p l a i n t i f f had s u f f e r e d a c t u a l damages. here we damages for have found that plaintiff has Similarly, suffered actual w e w i l l n o t r e v e r s e t h e judgment and a c c o r d i n g l y , the f a i l u r e t o include the phrase " p r o v i d e d you f i r s t f i n d t h a t t h e p l a i n t i f f h a s s u f f e r e d a c t u a l damage." More- o v e r , we n o t e t h a t t h e g i v e n i n s t r u c t i o n s t a t e s t h a t p l a i n t i f f may r e c o v e r p u n i t i v e damages i n a d d i t i o n t o h i s a c t u a l damages i f he c a n show o p p r e s s i o n , fraud or malice. The r e a s o n a b l e c o n c l u s i o n t h e r e f r o m i s t h a t a c t u a l damages m u s t f i r s t be shown. W r e a s o n similarly w i t h r e g a r d t o t h e f a i l u r e o f e the D i s t r i c t C o u r t t o i n s t r u c t t h e j u r y t h a t p l a i n t i f f m u s t show a violation of the Montana Insurance Code for which a p e n a l t y i s p r e s c r i b e d b e f o r e b e i n g a w a r d e d p u n i t i v e damages. I n I n s t r u c t i o n No. 1 3 t h e c o u r t r e a d t o t h e j u r y t h e s t a t u t e ( s e c t i o n 33-18-201(13), which d e f e n d a n t v i o l a t e d dlscusseu earlier, v i o l a t i o n of the uncontroverted this statute. MCA). evidence As showed a W f a i l t o s e e how t h e f a i l u r e e t o i n s t r u c t a s p l a i n t i f f contends w a r r a n t s a r e v e r s a l of t h e judgment. The t h i r d i s s u e r e l a t e s t o t h e a u m i s s i o n o f not that listed the in the pretrial plaintiff's order. exhibit no. Appellant 12, evidence here argues indicating the Jetendant's assets and liabilities, should not have been admitted because it was not listed in the pretrial order. Also, plaintiff did not indicate in answers to interrogatories that Lewis, a former agent of defendant, would tsstify about defendant's financial condition. Appellant was furnished with the exhibit eight days prlor to trial and eight days is a sufficient prepare rebuttal evidence for the exhibit. tne time to Moreover, from time defendant was served witn plaintiff's complaint, defendant was aware of the fact that plaintiff was seeking punitive damages. It requires no recitation of authority that a jury nay take into account a defendant's wealth when punitive damages are sought. Defendant did not request a continuance to prepare for the exhibit, submitted its case to the jury, and after an adverse verdict seeks a retrial on the punitive damages Issue. Defendant has had its day in court. We fail to see how defendant's rights were prejudiced by the admission of the exhibit or the testimony regarding defendant's financial condition. Affirmed. . , Chief Justice We concur: / 1 - 7 - P r Justice prank l. 8. Morrison, Jr., specially concurring. I concur in the result but dissent from that portion of the opinion which relies upon a violation of the insurance code as the basis for an award of punitive damages. The jury in this case was permitted to award punitive damages by making a finding that defendant insurance company failed to negotiate in good faith. was instructed regardinq the It is true that the jury provisions of section 33-18-201(13), MCA, and that this statute could have formed the basis for their finding in favor of plaintiff and their resulting award of $30,000 in punitive damages. However, the jury was not instructed that a violation of the statute was required for their verdict and in fact they were given the option of simply returning a verdict in favor of plaintiff based upon the "bad faith" case law which has developed. The majority opinion fails to deal with the question of whether a plaintiff can recover punitive damages in Montana in an action premised upon "bad faith" negotiation without a violation of the insurance code. Instead the majority relies upon the fact that, in this case, there was a violation of the insurance code as a matter of law and, therefore, any error in allowing the jury to return a verdict for plaintiff absent a finding of violation of the insurance code, would be harmless. I do not agree that there was insurance code as a matter of law. a violation of the The question of whether this insurance company failed to promptly settle claims as a general business practice was a question for the jury. Prior to our decision in Lipinski v. Flathead Title Co. 39 St.Rep. 2283 a plaintiff's riqht to recover punitive damages for bad faith arising out of an insurance contract was not clearly violation. recognized in absence of a statutory However, in Lipinski we said: "Should there be any doubt, we now expressly hold that insurance companies have a duty to act in good faith with their insureds, and that this duty exists independent of the insurance contract and independent of statute." An award of punitive damages without a statutory violation was approved. In this case the plaintiff presented the evidence from which a jury could find that defendant insurance company engaged in bad faith in its negotiation of this claim. claim is grounded in tort. The Therefore, this jury was entitled to make an award of punitive damages if it found defendant's conduct was sufficiently culpable to satisfy the statutory requirements of oppression and/or implied malice. I concur in the affirmance. Mr. Justice Fred J. Weber dissents as follows: I respectfully dissent from the majority opinion. My basic disagreement relates to the majority's interpretation of section 33-18-201(13), MCA. In substance I would hold that section does not give rise to an action in tort in the event of a failure to insured. Reference Flink, P.2d- I promptly is made to my - St.Rep. Supreme Court No. 82-247. settle a claim with an dissent in Klaudt v. , and which case has Mr. J u s t i c e D a n i e l J . S h e a , c o n c u r r i n g : I would a f f i r m t h e j u d g m e n t , ground b u t I c a n n o t do s o on t h e S e c t i o n 33-18-201 ( 1 3 ) , r e l i e d on by t h e m a j o r i t y . was n o t i n t e n d e d t o c r e a t e a s e p a r a t e c a u s e o f a c t i o n MCA, i n f a v o r o f t h e i n s u r e d w h e r e h i s i n s u r a n c e company h a s n o t d e a l t w i t h him i n good f a i t h . J u s t l i k e our recent d e c i s i o n i n Klaudt v. F l i n k ( 1 9 8 3 ) , - St.Rep. (No. 82-247, Mont . 1 - P.2d I d e c i d e d J a n u a r y 28, 1 9 8 3 ) , t h e m a j o r i t y h a s c r e a t e d a s t a t u t o r y c a u s e of a c t i o n o u t of t h i n air. The v e r d i c t a n d j u d g m e n t c a n , h o w e v e r , be a f f i r m e d i n any e v e n t b e c a u s e t h e r e is ample e v i d e n c e t h a t t h e i n s u r a n c e company was n o t a c t i n g i n good f a i t h w i t h i t s i n s u r e d . i n d i c a t e d by J u s t i c e M o r r i s o n , w e h e l d i n L i p i n s k i v . head C o u n t y T i t l e Co. , 39 S t . R e p . 2283, (1982), Plont. 1 As Flat- - P.2d a p u n i t i v e damage award i n f a v o r o f t h e i n s u r e d a g a i n s t a n i n s u r a n c e company " e x i s t s i n d e p e n d e n t of t h e i n s u r a n c e c o n t r a c t and i n d e p e n d e n t o f s t a t u t e . " Here t h e i n s u r a n c e company had a c l e a r d u t y t o i m m e d i a t e l y s e t t l e with puted. the insured A jury that part could, under of the c l a i m w h i c h was u n d i s - these facts, f a i l u r e t o d o s o was i n bad f a i t h . conclude t h a t its
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