Liberty Mut. Ins. Co. v. Parkinson
| Citation | 487 N.E.2d 162 |
| Decision Date | 30 December 1985 |
| Docket Number | No. 4-1083A352,4-1083A352 |
| Parties | LIBERTY MUTUAL INSURANCE COMPANY, Appellant (Defendant Below), v. Mary Ann PARKINSON, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Edward N. Kalamaros, Thomas Cohen, South Bend, for appellant.
Charles A. Asher, South Bend, J. William Davis, Jr., Goshen, for appellee.
Mary Ann Parkinson sued Liberty Mutual Insurance Company for bad faith in settling her claim for damages caused by an uninsured motorist. The trial court awarded her $2,000 in compensatory and $40,000 in punitive damages. On appeal, Liberty Mutual raises several issues which we have rephrased as follows:
1) whether the settlement agreement released all claims against appellant;
2) whether Indiana recognizes bad faith of an insurance company in settling a claim with its insured as an independent tort;
3) whether awarding compensatory damages was contrary to law; and
4) whether awarding punitive damages was contrary to law.
We affirm.
The dispute between Parkinson and Liberty Mutual arose after Parkinson's car was struck in the rear by a hit-and-run driver as she waited at a stop sign. Parkinson reported the accident to her insurance company, Liberty Mutual, and inquired as to her coverage and what effect a claim might have on her insurance rates. The claims representative told Parkinson that her rates would go "sky high" if she filed a claim; the representative also stated that her policy would not cover the cost of a rental car while Parkinson's automobile was being repaired.
As a consequence of this conversation, Parkinson did not file a claim with Liberty Mutual. Instead, she retained an attorney to bring suit against the hit-and-run driver. She also moved into her parents' home so that they could provide transportation to work until she could afford to purchase another car. Unfortunately, she was unable to locate the hit-and-run driver who had been driving a stolen vehicle. Parkinson eventually consulted her present attorney, who informed her that the uninsured motorist provisions of her insurance policy should have covered most of her losses from the accident. After Parkinson's attorney contacted Liberty Mutual and demanded payment, the parties settled the uninsured motorist claim for $3,116.83 and the claim for damage to her car for $2,982.50. The settlement release forms executed by the parties provided that Parkinson reserved the right to proceed against Liberty Mutual for dealing with her in bad faith in processing her claim. Parkinson brought the instant action and was awarded judgment in her favor. Liberty Mutual now appeals.
Initially, Parkinson maintains that Liberty Mutual has preserved no error for appeal as Liberty's motion to correct errors lacked specificity. Liberty Mutual's motion to correct errors consisted of the following allegations of error:
1) that the decision is not supported by sufficient evidence;
2) that the decision contains uncorrected errors of law;
3) that the decision is contrary to law.
The motion incorporated by reference a seventeen-page memorandum in support specifically addressing each alleged error. Parkinson argues that this motion to correct errors was inadequate to preserve error for review.
Indiana Rules of Procedure, Trial Rule 59(B) requires that the statement of claimed errors in a motion to correct errors be specific rather than general and be accompanied by a statement of facts and grounds upon which error is based. To determine whether the requirement of specificity has been met, the motion should be read together with its supporting memorandum. Stevenson v. Manners (1985), Ind., 477 N.E.2d 847; Leist v. Auto Owners Insurance Company (1974), 160 Ind.App. 322, 311 N.E.2d 828. When read in conjunction with its supporting memorandum, Liberty Mutual's motion to correct errors amply fulfills the specificity requirements of T.R. 59(B) and preserved the errors alleged for review.
Liberty Mutual then argues that its settlement agreement with Parkinson released all claims against the company. Appellant's argument is specious. See Lazarrus v. Employers Mutual Casualty Co. (1977), 173 Ind.App. 452, 364 N.E.2d 140. The settlement agreement explicitly provided:
This 'Release and Trust Agreement' does not constitute a waiver of Mary Ann Parkinson's right, which she expressly reserves, to make claim against, sue, and collect from Liberty for all acts and omissions constituting a breach of Liberty's contractual and fiduciary obligations to her, including attorney fees and compensation for all losses and punitive damages. This 'Release and Trust Agreement' satisfies only the liability that Liberty has for the uninsured motorist coverage of the above policy.
Next, appellant claims that Parkinson's suit was premised upon the tort of bad faith, a cause of action not cognizable in Indiana court. Parkinson's well-researched and cogent argument, on the contrary, maintains bad faith of an insurer in dealing with its insured has been adopted as a tort by many jurisdictions 1 and that many other states have legislated into insurance contracts the common law duty of good faith and fair dealing, with remedies including various combinations of compensatory and punitive damages. 2 See generally ASHLEY, BAD FAITH ACTIONS: LIABILITY AND DAMAGES, § 1:01, 2:02 (1984).
Indiana has long recognized that there is a legal duty implied in an insurance contract that the insurer must deal in good faith with its insured. Vernon Fire & Casualty Insurance Co. v. Sharp (1976), 264 Ind. 599, 349 N.E.2d 173; Riverside Insurance Co. v. Pedigo (1982), Ind.App., 430 N.E.2d 796; Rex Insurance Co. v. Baldwin (1975), 163 Ind.App. 308, 323 N.E.2d 270; Sexton v. Meridian Mutual Insurance Co. (1975), 166 Ind.App. 529, 337 N.E.2d 527. This duty is breached when an insurer fails to settle a claim that could not in good faith be disputed. See generally Vernon, supra; Riverside, supra. Furthermore, although punitive damages are generally not recoverable in contract actions, our courts have allowed the recovery of punitive damages when the insurer's breach is accompanied by an independent tort or where a serious wrong of a tortious nature was committed and the public interest would be served by the deterrent effect of punitive damages. Travelers Indemnity Co. v. Armstrong (1982), Ind., 442 N.E.2d 349; Vernon, supra. Due to our development of this special contractual remedy which affords the insured a more generous measure of damages, we have found no reason to adopt bad faith as an independent tort in this state and we see no need to adopt such an action now.
Liberty Mutual next claims the award of compensatory damages was contrary to law. Essentially, appellant contends the eventual settlement of Parkinson's claim under her insurance policy fully compensated her for all losses.
The record reveals that Liberty Mutual had paid the plaintiff the sum of $3,116.83 in satisfaction of her uninsured motorist claim. As evidenced by Charles Asher's letter dated October 27, 1980, the $3,116.83 is broken down as follows in Defendant's Exhibit B, p. 44 and 37:
Rental of Car $ 720.00
Lost Wages 150.00
Medical Expenses 207.75
Personal Injury 1,000.00
Attorney's Fees 1,038.88
---------
$3,116.83
In addition, Parkinson received the sum of $2,982.50 for damage to her automobile.
Although appellant may have settled with Parkinson for all benefits due under the policy, Parkinson did not receive all she was due under the contract. The contract contained a promise, implied in law, that Liberty Mutual would deal fairly with her in the settlement of any claim. Liberty Mutual breached this term of the contract by discouraging Parkinson from filing a claim that could not in good faith be disputed. Thus, Parkinson was entitled to compensation for the breach, including damages for the delay in the settlement of her claim, an item that was not included in the settlement agreement.
Appellant also attacks the award of compensatory damages on the basis that prejudgment interest and attorney fees were improperly included in the award. In its findings of fact, the trial court noted:
... Liberty did not pay any attorney fees, prejudgment interest, compensation for dislocation to Mary Ann's personal life by delay in properly handling her case, alleged breach of its duty of good faith and fair dealing.
Among Mary Ann's other alleged losses following Liberty's failure to make these payments within a reasonable time after the accident were the following: Mary Ann was forced to operate without an automobile until June, 1980, when she was able to afford a substitute automobile; Mary Ann left her own separate residence and moved in with her parents between February, 1980 and June, 1980, as a direct result of not having an automobile of her own; and pre-judgment interest between February, 1980 and December, 1980.
At the end of its judgment for Parkinson the trial court generally awarded compensatory damages...
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