Newham v. Nationwide Mut. Ins. Co.

• Decision Date: 09 March 1978
• Citation: 403 N.Y.S.2d 147,61 A.D.2d 1067
• Parties: Paul NEWHAM et al., Appellants, v. NATIONWIDE MUTUAL INSURANCE CO., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 147

403 N.Y.S.2d 147

61 A.D.2d 1067

Paul NEWHAM et al., Appellants, v. NATIONWIDE MUTUAL INSURANCE CO., Respondent.

Supreme Court, Appellate Division, Third Department.

March 9, 1978.

David Cohen, Liberty (Steven S. Katz, Liberty, of counsel), for appellants.

Kalter & Gottlieb, Woodburne (Ivan Kalter, Woodburne, of counsel), for respondent.

Before MAHONEY, P. J., and KANE, MAIN, LARKIN and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered December 23, 1976 in Sullivan County, which granted a motion for summary judgment dismissing the complaint.

The plaintiffs seek to secure damages from the defendant upon the ground that it failed to defend and otherwise properly carry out its contractual obligations as insurer because of bad faith in failing to offer the policy limits ($10,000) in settlement of a negligence action brought against the plaintiffs by a third party.

It is undisputed that the plaintiff, Paul Newham, advised the defendant that he struck the car of one Dnistrian causing injury to one DuBois because the Dnistrian car suddenly backed into the path of his vehicle. Special Term found that based upon that plaintiff's version the plaintiffs could not complain that the carrier failed to offer the full amount of the policy (see Pipoli v. United States Fid. & Guar. Co., 38 A.D.2d 249, 250, 328 N.Y.S.2d 688, affd. 31 N.Y.2d 679, 337 N.Y.S.2d 257, 289 N.E.2d 178; Colbert v. Home Ind. Co., 35 A.D.2d 326, 315 N.Y.S.2d 949).

In addition to the reasons set forth by Special Term as to an estoppel, this record demonstrates that although the defendant was aware of probable negligent conduct on the part of the plaintiff, there was no basis for completely rejecting his version of the accident. The defendant did offer 85% Of the policy and the plaintiffs have not established an issue of fact for the jury as to bad faith.

Order affirmed, without costs.