Pipoli v. U.S. Fidelity and Guaranty Co.
| Decision Date | 05 October 1972 |
| Citation | 337 N.Y.S.2d 257,31 N.Y.2d 679 |
| Parties | , 289 N.E.2d 178 Elaine PIPOLI, Appellant, v. UNITED STATES FIDELITY AND GUARANTY CO., Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from the Supreme Court, Appellate Division, First Department, 38 A.D.2d 249, 328 N.Y.S.2d 688.
Marc Bazin, New York City, for appellant.
Robert G. Burkhart, New York City, for respondent.
Action was brought on an assigned claim against insurer to recover the amount of verdict against the insured in excess of policy limits. The Supreme Court, New York County, Harry B. Frank, J., entered a judgment in favor of the defendant insurer and the assignee appealed.
The Appellate Division affirmed. It held that where insured maintained throughout action against him and other driver for personal injuries sustained when the other driver's automobile ran into insured's automobile which was left on highway that insured had run out of gas and took every possible precaution to make its presence known to the other driver and the insurer refused to increase its offer of $5,000 to the demand of $6500 and jury verdict was for $31,000, insured could not successfully complain that insurer had breached its duty to defend action in good faith because insurer believed insured's version of accident during settlement negotiations. An appeal was taken by the assignee.
In the Court of Appeals, the assignee asserted that insured's payment of an excess judgment was not condition precedent to action by insured against his liability carrier for the carrier's bad faith and that the evidence overwhelmingly pointed to carrier's bad faith. The insurer contended that the assignee was not damaged, that the insurer was entitled to rely on its insured's version of accident and that insurer would not have been guilty of bad faith even if it had failed to make an offer in the case.
Order affirmed, without costs.
All concur.
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