Colbert v. Home Indemnity Co.

• Decision Date: 03 December 1970
• Citation: 315 N.Y.S.2d 949,35 A.D.2d 326
• Parties: Raymond COLBERT, Jr., Appellant, v. The HOME INDEMNITY COMPANY, and the Home Insurance Company, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 949

315 N.Y.S.2d 949

35 A.D.2d 326

Raymond COLBERT, Jr., Appellant, v. The HOME INDEMNITY COMPANY, and the Home Insurance Company,

Respondents.

Supreme Court, Appellate Division, Fourth Department.

Argued Sept. 15, 1970.

Decided Dec. 3, 1970.

[35 A.D.2d 327] Milo Thomas, Rochester (Charles S. Desmond, New York City, of counsel), for appellant.

Hickey & McHugh, Rochester (E. James Hickey, Rochester, of counsel), for respondents.

Before GOLDMAN, P.J., and MARSH, GABRIELLI, MOULE and HENRY, JJ.

OPINION

GABRIELLI, Justice:

As a result of injuries sustained in a one-car automobile accident Aleck Whatley recovered a verdict against the plaintiff herein in the amount of $225,000. Plaintiff's insurance carrier (defendants herein) paid the $10,000 policy limit to Whatley and received a partial satisfaction of judgment. Thereafter, plaintiff commenced this action for the balance of the verdict recovered against him, alleging bad faith by reason of defendants' refusal to settle Whatley's action for the sum of $10,000 which, plaintiff claims, could have been done prior to the commencement of the trial of the negligence action. From an adverse judgment, plaintiff appeals.

Stripped of the collateral considerations which have no dispositive effect upon the case, the central question involved herein concerns plaintiff's right to recover for the amount of the excess by which the judgment exceeds the $10,000 policy limit, where it appears that plaintiff's actions and statements influenced the insurance carrier to reject the offer of settlement.

In order to place the matter in proper perspective, a brief summary of the facts is required. The occupants of the car were Whatley, who was the owner thereof, the plaintiff herein, and four other persons. Following the one-car accident of said vehicle in which Whatley was seriously injured, he brought action against the plaintiff herein, claiming that plaintiff was the operator. The plaintiff herein and two of the other passengers brought personal injury actions against Whatley, claiming that the latter was the operator. The decisive issue to be resolved during the trial was the identity of the operator of the Whatley vehicle. All the actions were tried together and verdicts of no cause of action were rendered in these actions brought against Whatley.

There appears to be no dispute that during pretrial negotiations Whatley had offered to settle his action against the plaintiff herein for the limit of the $10,000 insurance coverage. It further appears that plaintiff's personal counsel also requested the insurer to pay the settlement demand. However, it is important to take note of the conceded fact that plaintiff insisted that his action against Whatley proceed to trial, even if Whatley's personal injury action were settled.

We agree with the result reached by the Trial Court. In affirming, however, we point out that the resolution of the issue presented is based upon the doctrine of estoppel, a principle which was not treated below.

Throughout the trial and at all times plaintiff has contended that he was not driving the Whatley car. This is evidenced, of course, by the commencement of his action against Whatley and his absolute refusal to discontinue his action if Whatley's offer to settle for $10,000 had been accepted. The plaintiff's present position is that the defendants should have paid no attention to his insistence that he was not driving, should have disbelieved him and should have settled with Whatley for the...