Canadian Universal Ins. Co. v. Employers Surplus Lines Ins. Co., 74--1094
| Decision Date | 13 January 1976 |
| Docket Number | No. 74--1094,74--1094 |
| Parties | CANADIAN UNIVERSAL INSURANCE COMPANY, Appellant, v. EMPLOYERS SURPLUS LINES INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Wicker, Smith, Pyszka, Blomqvist & Davant, Smathers & Thompson and David S. Batcheller, Miami, for appellant.
Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.
Before HENDRY, HAVERFIELD and NATHAN, JJ.
This is an appeal by Canadian Universal Insurance Company, defendant and primary insurer, seeking reversal of a final judgment on the cross-claim of defendant excess insurer in the amount of $38,751.66, representing the excess insurer's attorney's fees and costs in defending a bad faith action brought by the plaintiffs against both insurers.
As a result of their infant daughter sustaining severe brain damage due to the negligent handling of her delivery, plaintiffs filed suit against James Archer Smith Hospital, Canadian Universal Insurance Company as primary insurer up to $100,000, and Employers Surplus Lines Insurance Company as excess insurer from $100,000 to $250,000. Although Employers did not engage actively in the negligence litigation, it did urge Canadian to accept plaintiffs' offer to settle within the combined limits of the two policies (i.e. $250,000). Canadian did not settle and the jury returned a verdict in the aggregate sum of $826,490 in favor of the plaintiffs and against the hospital. Canadian and Employers paid their policy limits leaving a $576,400 excess. Plaintiffs then filed against both insurance companies a second action seeking to recover the excess on the theory that Canadian and Employers acted in bad faith in refusing to settle the case within their combined policy limits when they had ample opportunity to do so and when the case was one of likely and probable liability with damages greatly exceeding the limits of both policies. Both defendant insurers denied liability and Employers filed a cross-claim for indemnity against Canadian for its exercise of bad faith toward Employers by preventing a settlement within the combined policy limits. This cause was tried before a jury which found (1) Canadian exercised bad faith towards the plaintiffs and towards Employers, and (2) Employers did not act in bad faith towards the plaintiffs. Thereupon, the trial judge entered judgment for $576,000 in favor of plaintiffs and against Canadian and a final judgment for...
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