Is it improper for a trial court to consider insurer’s potential liability for judgment in excess of policy limits in evaluating whether 998 demand was reasonable?

Posted in: Trial Practice by Steven Vartabedian on

In Aguilar v. Gostischef (filed October 11, 2013) 2013 DJDAR 13678, judgment for $2.3 million was entered in favor of plaintiff for motor vehicle accident personal injury, where defendant was insured by Farmers under a $100,000 policy limit. Earlier in the case, plaintiff’s counsel had twice requested discovery from Farmers of the policy limit. After more than 2 months had gone by without receiving a response, counsel expressed his desire to resolve the case; that he wished to have that information in order to make a policy limits demand. Again, Farmers failed to respond. Suit was filed nearly 7 months after the initial request. About 2 months after the filing, Farmers tendered the $100,000 policy limit to settle the case. It advised counsel that defendant lived on Social Security and had no assets. Two weeks later, a California Code of Civil Procedure section 998 offer to compromise was formally presented by defendant in that sum. The offer went unaccepted, and counsel for plaintiff advised Farmers of his contention that it would be liable for an excess judgment because it ignored three attempts to settle the matter within the policy limits.

Thereafter, plaintiff made a 998 offer to settle in the sum of $700,000. Farmers, acting for the defendant, countered at $100,000. The matter proceeded to jury trial, followed by an appeal; eventually a $2,339,657 damage award was finally adjudged. Plaintiff followed with a cost bill in the sum of $1,639,451. A large portion of the claimed costs (including prejudgment interest) was claimed as awardable due to defendant’s rejection of plaintiff’s 998 offer which was exceeded by the award. Defendant moved to tax the costs, arguing that 998 offer was not made in good faith. The trial court disagreed finding that it was not bad faith for plaintiff to make that offer in spite of the lower policy limit because it was within the reasonable range of damages for the nature of his injury, the loss of a leg. Farmers, as the intervener at trial, appealed the cost award.

The Court of Appeal, Second Appellate District, Division Eight, affirmed. The court agreed with Farmers that it was not on this appeal presented with the question of Farmers’ liability for the excess judgment. However, Farmers failed to demonstrate that plaintiff acted in bad faith in light of the circumstances of the case when he made the 998 offer in excess of the policy limits. This good faith requirement is to encourage settlement where an offer “is realistically reasonable under the circumstances of the case.” (CCP section 998.) It mattered not that what triggered plaintiff’s claim that he exposed Farmers to an excess judgment was Farmers’ failure to respond to informal (rather than formal) settlement overture of a settlement within the policy limit; counsel’s numerous efforts seeking Farmers cooperation in divulging policy limit information had fallen on deaf ears. (See Boicourt v. Amex Assurance Co. (2000) 78 Cal.App.4th 1390.)

Finally, the court notes that the final step in determining whether an offer was reasonable is to determine the information known to the offeree, in this case Farmers. Given the above circumstances it was not an abuse of discretion for the trial court to determine that Farmers had adequate information to determine that it could reasonably be exposed to liability for damages in the range of plaintiffs offer. The jury found damages in three times the sum of the offer. And while the liability of Farmers for those damages had not yet been determined, the evidence suggested that result could reasonably occur.

This case sends an important message to insurers and their attorneys that there can be dramatic consequences arising from failure to respond to even informal requests of a claimant concerning matters such as policy limits.

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