Gray v. Grain Dealers Mut. Ins. Co.

• Decision Date: 04 April 1989
• Docket Number: No. 88-7125,88-7125
• Citation: 871 F.2d 1128,276 U.S.App. D.C. 388
• Parties: Vernon GRAY v. GRAIN DEALERS MUTUAL INSURANCE CO., Petitioner.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1128

871 F.2d 1128

276 U.S.App.D.C. 388

Vernon GRAY v. GRAIN DEALERS MUTUAL INSURANCE CO., Petitioner.

No. 88-7125.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 6, 1989.

Decided April 4, 1989.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-01782).

Ralph Boccarosse, Jr., Fairfax, Va., for petitioner.

Howard L. Siegel, Hartford, Conn., for respondent.

Before SILBERMAN, WILLIAMS and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Following a personal injury claim filed against Windell Speed by Vernon Gray, a pedestrian Speed hit while driving his car Grain Dealers Mutual Insurance Company breached its duty to settle on behalf of its insured, Speed. In doing so, Grain Dealers exposed itself to liability in excess of Speed's policy limits for consequential damages resulting from its breach. Speed assigned to Gray Speed's chose in action against Grain Dealers in exchange for Gray's release of Speed from liability to pay a default judgment of $334,000 entered against him. The district court awarded Gray $334,000, 684 F.Supp. 1108, and we affirm that result.

I.

This case comes to us primarily on stipulated facts. The district court, however, made certain findings, apparently not in dispute, which supplement the stipulations. In 1985, Grain Dealers Mutual Insurance Company, an Indiana corporation, issued an automobile liability insurance policy to Windell Speed, then a North Carolina resident. The contract, mailed to Speed at his North Carolina address, lists a North Carolina agent for Grain Dealers. Subsequently, Speed moved to Washington, D.C. and in August 1985, while driving his car in Washington, D.C., struck and seriously injured Vernon Gray, a pedestrian. Speed timely reported the accident to Grain Dealers, which referred Speed to its agent in Northern Virginia, R.W. Parker. In September 1985, Gray filed suit against Speed seeking $2 million in damages. The insurance contract included a standard "duty-to-defend clause" obligating the insurer to provide legal counsel to defend or settle on behalf of Speed in the event of a lawsuit arising out of an insured risk. Speed accordingly mailed the complaint to Parker who assured Speed that he would take care of the lawsuit. Gray's attorney made several attempts to contact Parker and discuss settlement of the case. In a letter dated January 7, 1986, Gray's attorney offered to settle the case for $25,000--the policy limit. Parker did not respond to the letter.

In light of Parker's silence, Gray's attorney sought and gained a default judgment against Speed at the end of January 1986. The next month, when the district court held a hearing to ascertain Gray's damages, no one appeared for Speed. After hearing evidence on Gray's injuries and medical expenses, the court awarded him $334,000. Several months later, in April 1986, Parker sent Gray's January 7 settlement offer to Grain Dealers.

In June, Speed agreed to assign his claim against the insurance company to Gray in exchange for Gray's releasing Speed of any obligation to pay the judgment. Shortly thereafter Gray sued Grain Dealers and R.W. Parker to recover the amount of the judgment. After Gray filed his suit against Grain Dealers and Parker, Grain Dealers filed, in its own name, a "motion for relief from judgment" in the previous suit that Gray had filed against Speed. The court granted Gray's responsive motion to strike Grain Dealers' motion, on the grounds that Grain Dealers was not a party to that suit, and that the assignment released Speed from any obligation under the suit. In response to the suit filed against it, Grain Dealers asserted that it was only liable under the policy to indemnify Speed and by reason of the assignment, Speed's liability to Gray--and any liability of Grain Dealers to Speed or Gray--was extinguished. Alternatively, the company claimed it could not be held liable under North Carolina law in excess of its policy limits for only negligence, to which the company had stipulated. On cross motions for summary judgment, the district court awarded Gray the full amount of the default judgment against Grain Dealers, notwithstanding its recognition that the result was "harsh."

II.

The parties disagree at the outset as to which law, North Carolina or the District of Columbia, governs the case. In a diversity case, we must apply the choice-of-law principles of the forum jurisdiction which, in this case, is the District of Columbia. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). The District, in tort or contract cases, chooses between jurisdictions by inquiring into "the relationships of the two jurisdictions to the controversy, the interests involved, and whether application of foreign law would offend a strong and clearly defined local policy." Mazza v. Mazza, 475 F.2d 385, 391 (D.C.Cir.1973). See also Kaiser-Georgetown Community v. Stutsman, 491 A.2d 502, 509 (D.C.App.1985).

With respect to the interpretation of an automobile liability policy, the District adopts the

law of the state which the parties understood was to be the principal location of the insured risk [the auto] during the term of the policy, unless with respect to the particular issue, some other state has a more significant relationship ... to the transaction and the parties, in which event the local law of the other state will be applied.

National Union Fire Ins. Co. v. Binker, 665 F.Supp. 35, 40 (D.D.C.1987) (quoting The Restatement (Second) of the Conflict of Laws Sec. 193 (1971)). In Binker, the court--faced with a dispute as to which state was intended to be the principal location of the automobile--declined to order summary judgment. Here, however, although the stipulated facts are skimpy, we can presume that North Carolina was the intended principal location for the automobile since Speed was, at the time the contract was made, a resident of North Carolina. Moreover, since the contract was apparently entered into in North Carolina--and includes provisions which specifically refer to North Carolina law ¹--that state's interest in the interpretation of the contract seems to us to be clearly superior to that of the District. That the accident occurred in the District (and therefore District law governs Speed's liability to Gray) is not enough to override North Carolina's superior interest in the construction of the insurance contract. See Binker, 665 F.Supp. at 38-39 & n. 7.

III.

We therefore examine first Grain Dealers' contention that under North Carolina law, it is not liable in excess of policy limits for ordinary negligence in handling Gray's claim against Speed. If appellant is correct, then Speed had no claim in excess of policy limits against the company that could have been assigned to Gray, and the assignment would be, at least in part, a nullity.

Although North Carolina law is by no means crystal clear on the point, we think appellee has the better argument. It may well be that in North Carolina, if the insurance company actively assumes the defense of an insured, it is not liable for mere negligence in failing to gain the best settlement for the insured. In that event, a showing of bad faith may be required to recover in excess of policy limits. Coca-Cola Bottling Co. v. Maryland Casualty Co., 325 F.Supp. 204, 206 (W.D.N.C.1971).

Still, the Supreme Court of North Carolina and lower courts have described the insurer's settlement duty as "to act diligently and in good faith." Alford v. Textile Ins. Co., 248 N.C. 224, 103 S.E.2d 8, 12 (1958) (emphasis added); Coca-Cola Bottling Co., 325 F.Supp. at 206; Abernethy v. Utica Mut. Ins. Co., 373 F.2d 565, 568 (4th Cir.1967). It is surely impossible to characterize the company's conduct in this case as diligent. Although the North Carolina courts may wish to insulate insurance companies from liability for "honest mistakes of judgment" Coca-Cola, 325 F.Supp. at 206 (which might be characterized as negligent), we detect no solicitude for the insurance company that negligently fails to exercise any judgment at all. Indeed, Grain Dealers' stipulated negligence in this case may even be indistinguishable from bad faith under North Carolina law. In Abernethy, the Fourth Circuit heard an appeal from summary judgment granted in "a case of a flat refusal to negotiate under circumstances that ... gave rise to an obligation to engage with bona fides in settlement negotiations." 373 F.2d at 569. Deciding that a jury question was presented, the court found that "the flat refusal to negotiate, under the circumstances of substantial exposure to liability, a demonstrated receptive climate for settlement and limited insurance coverage, could have been found to show lack of good faith in [the insurer's] exercise of its exclusive power to settle." Id. at 570 (emphasis added).

Even assuming it could be liable in excess of policy limits as a result of its behavior, Grain Dealers further argues that it is not liable to Gray because the judgment against Speed was not paid or shown to be payable. Appellant contends that in order to recover against the insurance company, Gray must prove that Speed would have paid the judgment against Gray, otherwise the insurance company is liable for more than its insured's true damage. Grain Dealers argues that the value of Speed's claim against the insurance company should be modified by his ability to pay the judgment to Gray. If the modification is not made, then, through the assignment-release, a silk purse has been made out of a sow's ear. Although no direct evidence was presented by either party as to Speed's net worth, his earnings, or his intention to attempt to pay the judgment prior to the assignment and release, we could infer from the record that Speed was a man of modest means.

Under circumstances such as this, where the insured...