Dalrymple v. Alabama Farm Bureau Mut. Ins. Co., 8 Div. 928

• Decision Date: 22 May 1958
• Docket Number: 8 Div. 928
• Citation: Dalrymple v. Alabama Farm Bureau Mut. Ins. Co., 103 So.2d 711, 267 Ala. 416 (Ala. 1958)
• Parties: Raiph L. DALRYMPLE v. The ALABAMA FARM BUREAU MUTUAL INS. CO., Inc.
• Court: Alabama Supreme Court

Page 711

103 So.2d 711

267 Ala. 416

Raiph L. DALRYMPLE v.The ALABAMA FARM BUREAU MUTUAL INS. CO., Inc.

8 Div. 928.

Supreme Court of Alabama.

May 22, 1958.

Clark E. Johnson, Jr., Albertville, for appellant.

Lusk & Lusk, Guntersville, for appellee.

STAKELY, Justice.

This suit was instituted by Ralph L. Dalrymple against the Alabama Farm Bureau Mutual Casualty Ins. Co., Inc., a corporation.There are a number of counts embraced in the complaint to each of which the defendant demurred.The court sustained the demurrer and the plaintiff took a nonsuit with leave to appeal to the Supreme Court.The case comes to this court solely on the record.

The plaintiff in each count alleges that he had a contract of liability insurance on his automobile with the defendant on April 9, 1955, which was in full force and effect and describes and sets out the material provisions of the contract and avers that on the 9th day of April 1955the plaintiff had an automobile accident with one Joseph H. Croft and that Joseph H. Croft did commence an action at law in the circuit court for damages to his automobile and for bodily injuries; that the bodily injuries sustained by Joseph H. Croft were very serious and in excess of $5,000, the limits of the plaintiff's policy of insurance.The defendant's knowledge of the fact of the accident and of the seriousness of the injuries and the probability of recovery, are alleged.The defendant's opportunity to settle the suit within the limits of the policy is also alleged.

Counts, 1, 1-A and 1-B allege that the defendant negligence failed or refused to settle the case of Joseph H. Croft and that as a result of the negligence of the defendant, a judgment for $10,000 was rendered in the cause, $5,000 of which was in excess of defendant's liability as defined by the insurance contract, that as a result of the negligence of the defendant, Joseph H. Croft has a judgment against the plaintiff in the amount of $5,000.In other words, the company paid $5,000 on the policy, leaving an unpaid balance on the judgment amounting to $5,000.

In Counts 1-C, 1-E and 1-F the plaintiff alleges that the defendant acted in bad faith in failing or refusing to settle said suit.Counts 2 and 3-A are counts ex contractu and are based on the defendant's failure to pay sums of money which it is alleged to be responsible to pay under the contract of insurance.

There is no doubt that the liability of the insurer may be beyond the policy limits for negligence in failing to settle the claims against the insured within the policy limits where thereafter judgment greater than the policy limits is obtained against the insured.Waters v. American Casualty Co. of Reading, Pa., 261 Ala. 252, 73 So.2d 524.

There is no doubt that the insurer may be liable beyond policy limits for bad faith in failing to settle claims against the insured within policy limits where thereafter judgment greater than policy limits is obtained against the insured.Waters v. American Casualty Co. of Reading, Pa., supra.

But there are allegations in each count which seek to recover the $5,000 which was the...