Safeco Ins. Co. of America v. Albriza

• Decision Date: 27 December 1978
• Docket Number: 76-1596,Nos. 76-1595,76-1617 and 76-1618,s. 76-1595
• Citation: 365 So.2d 804
• Parties: SAFECO INSURANCE COMPANY OF AMERICA, a Foreign Insurance Corporation licensed to do business in Florida, Appellant, v. Irmina Dominguez ALBRIZA and Silvino Albriza, her husband, Ramon Acosta, Ramon Acosta as Administrator of the Estate of Margarita Acosta, and Ofelia Sota, Appellees.
• Court: Florida District Court of Appeals

Page 804

365 So.2d 804

SAFECO INSURANCE COMPANY OF AMERICA, a Foreign Insurance Corporation licensed to do business in Florida, Appellant, v. Irmina Dominguez ALBRIZA and Silvino Albriza, her husband, Ramon Acosta, Ramon Acosta as Administrator of the Estate of Margarita Acosta, and Ofelia Sota, Appellees.

Nos. 76-1595, 76-1596, 76-1617 and 76-1618.

District Court of Appeal of Florida, Fourth District.

Dec. 27, 1978.

Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, and Sam Daniels, Miami, for appellant.

Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellees Sota and Acosta.

Rosemary Barkett of Farish & Farish, West Palm Beach, for appellees Albriza.

PER CURIAM.

This is an appeal by a liability insurance carrier from a judgment holding it liable for judgments against its insured which were in excess of the policy limits.

The Albrizas, insured by Safeco, were involved in an automobile accident, which resulted in personal injury claims by claimants, Sotas and Acostas. Safeco then filed a declaratory judgment action to determine its liability. The Albrizas counterclaimed to recover the amount of the judgments entered against them. The Sotas and Acostas filed a separate action against Safeco to collect the judgments secured against the Albrizas. These actions were tried together and resulted in a judgment against Safeco for the full amounts of the judgments originally awarded the claimants against Safeco's insureds, the Albrizas. The Sotas and Acostas were also awarded attorneys' fees for prosecution of the action against Safeco. The Albrizas were awarded attorney's fees also, and their claim against Safeco was settled during the pendency of this appeal.

Initially, Safeco claims error in the trial court's failure to give the following requested instruction:

In order for Safeco Insurance Company to be liable for the excess amount of the judgments against its insured, the Albrizas, Safeco Insurance Company must have been given an opportunity by the injured parties to settle all claims within the limits of its insured's policy.

Instead, the trial court gave this instruction:

In order for Safeco to be guilty of bad faith, there must have been an opportunity for settlement within the policy limits.

While we agree there is some difference between the two instructions, we conclude that the instruction given was substantially the same as the instruction requested and we find no error in the failure of the trial court to instruct the jury in the exact language requested by Safeco. Indeed, at trial, contrary to Safeco's argument on appeal, Safeco's counsel substantially agreed to the trial court's revision of the instruction and stated:

We would request it be given as you amended it, in order for Safeco Insurance Company to be guilty of bad faith, Safeco Insurance Company must have been given an opportunity by the injured parties to settle all claims within the limits of its insured policy. You might want to delete "by injured parties" bu...