Speicher v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 13 December 1966
• Docket Number: No. 12534,12534
• Citation: 151 W.Va. 292,151 S.E.2d 684
• Court: West Virginia Supreme Court
• Parties: Terrance L. SPEICHER et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation.

Page 684

151 S.E.2d 684

151 W.Va. 292

Terrance L. SPEICHER et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation.

No. 12534.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 27, 1966.

Decided Dec. 13, 1966.

Syllabus by the Court

A verdict of a jury without evidence to support it, or against the clear weight and preponderance of conflicting evidence, will be set aside by this Court.

Furbee, Hardesty, Critchfield & Whyte, Russell L. Furbee, Fairmont, Farmer & Farmer, George R. Farmer, Jr., Morgantown, for appellant.

Kenneth E. Kincaid, Mike Magro, Jr., Morgantown, for appellees.

BROWNING, Judge:

This case is here upon appeal from the final judgment of the Circuit Court of Monongalia County in which judgment was entered upon a verdict for the plaintiffs, father and son, in the sum of $6,000.00. The action resulted from a prior action in that court in which David Lee Morgan was plaintiff and the Speichers were defendants and arose out of an automobile accident in a small Pennsylvania town near the West Virginia state line and in which case Morgan got a judgment against both Speichers in the sum of $16,000.00. The elder Speicher owned the motor vehicle in question and had a policy of liability insurance with State Farm Mutual Automobile Insurance Company with a maximum coverage of $10,000.00. It will be noted that the Morgan verdict was $6,000.00 in excess of the insurance coverage and the present action was for recovery of the excess beyond what Morgan was paid under the policy by the insurance company. The action by the Speichers against the insurance company, and the former and latter will sometimes hereinafter be referred to in the position they had in the trial court, plaintiffs and defendant, was predicated upon the theory that the defendant exercised 'bad faith' in not making a settlement with Morgan prior to the trial of the original case. This is one of the provisions of the contract of insurance between plaintiffs and defendant: '* * * to defendant any suit against the insured alleging such bodily injury * * * and seeking damages on account thereof * * * but the company may make such investigation, negotiation and settlement of any claim or suit as it Deems expedient. * * *' (Italics supplied.)

The defendant cites several alleged prejudicial errors which occurred during the trial but this Court finds it necessary to consider only one, believing that a decision upon that one renders a discussion of the others unnecessary. The principal issue presented upon this appeal is one of first impression in this jurisdiction, although there are many cases elsewhere and, apparently, they fall into two groups--one referred to as the 'bad faith' rule and the other the 'negligence' rule. Since it is the opinion of this Court, upon the evidence of this case, as a matter of law, that the defendant was guilty of neither negligence nor bad faith, it will not be necessary for the Court to adopt either of those rules or to go into detail in this opinion in attempting to distinguish between them. An examination of the cases from other jurisdictions propounding one or the other of these rules evidences what is always true and that is that each decision depends upon the facts in the particular case. It is evident that in some of the cases which follow the negligence rule that the evidence is such as to show gross negligence that would in other jurisdictions be held to be bad faith. Some courts also apparently merge the two doctrines until it is impossible to determine to which they adhere. Inasmuch as this is a question of first impression in this jurisdiction and even though cases from other jurisdictions are persuasive only upon this Court, we believe it advisable to list the case cited by counsel for defendants which are alleged to fall under the 'bad faith' rule and the cases cited by the plaintiff alleged to fall within the 'negligence' rule. Cases cited by counsel for defendants alleged to fall under the 'bad faith' rule are: Brown v. Guarantee Ins. Co., 155 Cal.App.2d 679, 319 P.2d 69, 66 A.L.R.2d 1202; Olympia Fields Country Club v. Bankers Indemnity Ins. Co., 325 Ill.App. 649, 60 N.E.2d 896; Henke v. Iowa Home Mutual Cas. Co. (1959), 250 Iowa 1123, 97 N.W.2d 168; Ferris v. Employers Mutual Cas. Co. (1963), 255 Iowa 511, 122 N.W.2d 263; Lemons v. State Auto Mut. Ins. Co., D.C., 171 F.Supp. 92; American Surety Co. of New York v. Schneider & Son (Ky., 1957), 307 S.W.2d 192; Brown v. United States Fidelity & Guaranty Co., 2 Cir., 314 F.2d 675; Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45; Perry v. United States Fidelity & Guaranty Co., 49 Tenn.App. 662, 359 S.W.2d 1; Byrnes v. Phoenix Assur. Co. of New York, 7 Cir., 303 F.2d 649; Cowden v. Aetna Cas. & Surety Co., 389 Pa. 459, 134 A.2d 223; Murach v. Mass. Bonding and Ins. Co. (1959), 339 Mass. 184, 158 N.W.2d 338; Aetna Cas. & Sur. Co. v. Price, 206 Va. 749, 146 S.E.2d 220. Cases cited by counsel for the plaintiff alleged to fall under the 'negligence' rule are: Anderson, Trustee, etc. v. St. Paul Mercury Indemnity Co., et al., 7 Cir., 340 F.2d 406; Dumas v. Hartford Accident and Indemnity Co., 94 N.H. 484, 56 A.2d 57; Alabama Farm Bureau Mutual Cas. Ins. Co. v. Dalrymple (1959), 270 Ala. 119, 116 So.2d 924; Hartford Accident & Ind. Co. v. Cosby (1965), 277 Ala. 596, 173 So.2d 585; Chancery v. New Amsterdam Cas. Co., Tex.Civ.App., 336 S.W.2d 763. 'The cases from other jurisdictions involving actions for damages by persons injured from falls on terrazzo surfaces are in conflict. However, to place so many in one category and so many in another would not be quite accurate, for the facts must be carefully looked to in each case in ascertaining the reason for the decision of the Court.' Costello v. City of Wheeling, 145 W.Va. 455, 460, 117 S.E.2d 513, 516, and cases cited in the opinion of that case.

It is obvious that if this opinion is to serve its purpose it will be necessary to state at some length the facts leading up to the trial of the original action against the Speichers and as they existed prior to that time. Almost immediately after the accident occurred the defendant referred the matter to Angelo DeCarlo, an experienced adjuster of the insurance company, who holds a law degree from West Virginia University. He, assisted by representatives of the defendant stationed in Pennsylvania, went to the scene of the accident and there and elsewhere made what I believe is not denied to be an extensive investigation to determine whether the Speichers were liable. The following are some of the facts and evidence revealed by Mr. DeCarlo's investigation. On November 1, 1962, Terrance L. Speicher, the son, who was driving the automobile at the time of the injury to Morgan, stated in part that he 'was traveling about 20 miles per hour as I neared the church. When I was about 10 feet from the church steps, I saw a boy named Martin Richards and he was running toward the edge of the road near the side of the steps. I didn't known what Richards was going to do, so I swung to my left a little and also applied my foot brake and as I looked straight ahead I saw David Morgan about 3 feet in front of my car and he was at about the middle of hood. That is the very first time I saw him. He was struck with the left front of the car and I went about 10 feet before I stopped in the road and let the car set there until the State Police arrived. * * * I was not cited by the police for any violation. I did not have anything to drink prior to the accident. * * * I have read the above three pages and they are correct.' The signature of Terrance Lynn Speicher is at the bottom of that statement. Martin Richards, age 13 and a resident of Dunkard, Pennsylvania where the accident occurred, and to whom reference was made by young Speicher, in his affidavit, said: 'David Morgan and I were together and were returning to the Jack residence and I was on the sidewalk steps and David Morgan jumped from the embankment into the road and when I saw the car coming I grabbed a railing and stopped and turned around to see where David was and when I couldn't see him I looked back on the road and seen David laying on the drivers side of the road. * * * The car driving by Terry W. Speicher did not appear to be traveling too fast.' This statement was witnesses by Mrs. Martin Richards. Neil Phillips, age 23, also of Dunkard, Pennsylvania, stated that he was standing on his front porch and observed young Speicher driving by in 'his 1954 Buick at a speed of approx. 25 m p h. I live approx. 25 yards west of the Methodist Church, * * *.' (The accident occurred near the Methodist Church of Dunkard.) Wilma K. Pierce, age 15, of Dunkard, stated that she was a passenger in young Speicher's car, sitting in the center of the front seat between Speicher and Rosalie Lindsay, age 16, also a resident of Dunkard, at the time of the accident. She said: 'Terry was driving east on Main St. at approx 30--35 m p h and traveling upgrade on this 2 lane asphalt Straight and traveled approx. 100 feet when we seen Martin Richards run down the embankment on our right and he stopped. I never did see David Morgan, but I heard a thump and Terry stopped the car and we found out David Morgan was hit. * * * The Pennsylvania State Police investigated the accident and Terry was not cited.' This statement is signed by Wilma K. Pierce. Rosalie...