Boston Old Colony Ins. Co. v. Gutierrez, No. 54769

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; ENGLAND; ALDERMAN, J., concurs specially with an opinion, with which McDONALD; ALDERMAN; Carroll; McDONALD
Citation386 So.2d 783
PartiesBOSTON OLD COLONY INSURANCE COMPANY, Petitioner, v. Raul GUTIERREZ, Respondent.
Decision Date10 April 1980
Docket NumberNo. 54769

Page 783

386 So.2d 783
BOSTON OLD COLONY INSURANCE COMPANY, Petitioner,
v.
Raul GUTIERREZ, Respondent.
No. 54769.
Supreme Court of Florida.
April 10, 1980.
Rehearing Denied Sept. 4, 1980.

Page 784

James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner.

Murray Sams, Jr. and Francis W. Sams of Sams, Gerstein & Ward, Miami, for respondent.

PER CURIAM.

We have for review the decision of the District Court of Appeal, Third District, in Boston Old Colony Ins. Co. v. Gutierrez, 360 So.2d 464 (Fla.3d DCA 1978). That court has certified the following question as passing upon a question of great public interest: "Does the law as enunciated in Thompson v. Commercial Union Ins. Co. of New York, 250 So.2d 259 (Fla.1971), authorize a bad faith action against an insurance company when that company has refused to settle a claim at the express direction of its own insured who obtains a settlement of his claim and the insurance company thereafter offers to settle for its policy limits before trial?" Although we hold that Thompson may, in some circumstances, authorize such a suit, we find the evidence in this case legally insufficient to show bad faith on the part of Boston Old Colony Insurance Company.

Brown and Gutierrez were involved in a head-on collision. Both men claimed that they had been travelling east and that the other's car, headed west, crossed the center line of the highway and caused the collision. The officer who investigated at the scene concluded that Brown was responsible. Gutierrez brought an action against Brown for his injuries which action was defended by Brown's liability insurance carrier, Boston Old Colony. Brown's liability policy covered him up to a limit of $10,000.

In view of Brown's version of the facts and some corroborating evidence, Boston Old Colony retained an accident reconstruction expert. The expert examined the accident site and the wrecked vehicles and concluded that Brown's account was correct, that Gutierrez was west-bound and on the wrong side of the road at the point of impact.

Despite this favorable expert opinion evidence, Boston Old Colony's adjustor knew there was a question of liability. He knew also that Gutierrez's injuries were extensive and that there was a possibility of an excess judgment. He warned Brown of these matters and suggested an offer to settle for the policy limits. Brown was opposed to a settlement. He had counterclaimed against Gutierrez for his own injuries and apparently did not want to make the admission of fault implied by an offer to settle. So Boston Old Colony asked for, and Brown executed, a "hold harmless" agreement, in which Brown assumed responsibility for any excess judgment.

Before the trial, with the claim and the counterclaim pending, Gutierrez offered to take the policy limits in settlement of his claim against Brown. Boston Old Colony responded by denying liability. Subsequently, Brown reached a settlement of his counterclaim against Gutierrez and his insurer. With the counterclaim no longer pending, Boston Old Colony offered Gutierrez the policy limits in settlement. By this time, however, Gutierrez preferred to proceed to trial. The trial resulted in a judgment for Gutierrez against Brown for $1,400,000. Gutierrez then brought the

Page 785

present action against Boston Old Colony, alleging bad faith on the part of the insurance company because of its failure to settle the claim for policy limits when it had the opportunity. Gutierrez prevailed and obtained a judgment against Boston Old Colony for $1,400,000.

On appeal, Boston Old Colony argued that its motion for a directed verdict should have been granted since the evidence showed that Brown at all times contested liability and had evidence to support his position; that he requested that his insurer not settle the suit since he was pursuing his counterclaim against Gutierrez; and that after settlement of the counterclaim, Boston Old Colony offered the policy limits before trial. The district court affirmed, holding that there was sufficient evidence upon which a jury could base a verdict of bad faith failure to settle.

Boston Old Colony contends that Gutierrez, the injured tort plaintiff, should not be allowed to bring this action directly against it for its alleged bad faith in failing to settle his claim against Brown, its insured. We previously rejected a similar...

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205 practice notes
  • Jones v. Continental Ins. Co., No. 86-1922-Civ.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 22, 1987
    ...cause of action for bad faith within the context of third party actions, i.e., liability insurance. Boston Old Colony Ins. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980). The duty of good faith has been implied in law in the third party case because there is said to exist a fiduciary relations......
  • T.D.S. Inc. v. Shelby Mut. Ins. Co., No. 83-3622
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 24, 1985
    ...would never consolidate a liability case and a typical 'bad faith' claim," citing as authority Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla.1980), cert. denied, 450 U.S. 922, 101 S.Ct. 1372, 67 L.Ed.2d 350 (1981). Initial Brief of Appellant at 48 n. 21. Two aspects of that ca......
  • Dunn v. National Sec. Fire and Cas. Co., No. 93-241
    • United States
    • Court of Appeal of Florida (US)
    • December 23, 1993
    ...(rev. ed. 1981). 6 Odom v. Canal Insurance Co., 582 So.2d 1203 (Fla. 1st DCA 1991). 7 See Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783 (Fla.1980); Thompson v. Commercial Union Insurance Company of New York, 250 So.2d 259 (Fla.1971); Hartford Accident & Indemnity Co. v. Mathis......
  • In re Std. Jury Instructions in Civil Cases -- Report No. 09-01, No. SC09-284
    • United States
    • United States State Supreme Court of Florida
    • March 4, 2010
    ...liability is asserted for the insurance company's violation of some other duty. See, e.g., Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980) (duty “to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of......
  • Request a trial to view additional results
205 cases
  • Jones v. Continental Ins. Co., No. 86-1922-Civ.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 22, 1987
    ...cause of action for bad faith within the context of third party actions, i.e., liability insurance. Boston Old Colony Ins. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980). The duty of good faith has been implied in law in the third party case because there is said to exist a fiduciary relations......
  • T.D.S. Inc. v. Shelby Mut. Ins. Co., No. 83-3622
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 24, 1985
    ...would never consolidate a liability case and a typical 'bad faith' claim," citing as authority Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla.1980), cert. denied, 450 U.S. 922, 101 S.Ct. 1372, 67 L.Ed.2d 350 (1981). Initial Brief of Appellant at 48 n. 21. Two aspects of that ca......
  • Dunn v. National Sec. Fire and Cas. Co., No. 93-241
    • United States
    • Court of Appeal of Florida (US)
    • December 23, 1993
    ...(rev. ed. 1981). 6 Odom v. Canal Insurance Co., 582 So.2d 1203 (Fla. 1st DCA 1991). 7 See Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783 (Fla.1980); Thompson v. Commercial Union Insurance Company of New York, 250 So.2d 259 (Fla.1971); Hartford Accident & Indemnity Co. v. Mathis......
  • In re Std. Jury Instructions in Civil Cases -- Report No. 09-01, No. SC09-284
    • United States
    • United States State Supreme Court of Florida
    • March 4, 2010
    ...liability is asserted for the insurance company's violation of some other duty. See, e.g., Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980) (duty “to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of......
  • Request a trial to view additional results

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