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In Deciding Whether To Settle A Claim, The Insurance Company Must Give As Much Consideration To The Interests Of Its Insured As It Gives To Its Own Interests

Landow v. Med. Ins. ExchThe former patient of a Las Vegas doctor sued him.  In their suit, the patient and his wife claimed that the doctor had misdiagnosed a cancerous tumor.

When it came time to talk settlement, the Plaintiffs demanded a settlement in excess of the policy limit.  However, the Plaintiffs said that they would accept the policy limit to resolve the case.

When the malpractice claim did not settle, the doctor sued his insurance company Medical Insurance Exchange.  The doctor alleged that the insurance company had acted in bad faith because he wanted the suit settled. In his suit, he alleged that he was afraid of the negative publicity and damage to goodwill that a malpractice judgment would have on his medical business.

In Landow v. Med. Ins. Exch., 892 F. Supp. 239, 240-41 (D. Nev. 1995), the court said:

[T]he litmus test for bad faith is whether the insurer, in “determining whether to settle a claim, [gave] as much consideration to the welfare of its insured as it [gave] to its own interests.” Egan v. Mutual of Omaha Ins. Co., 24 Cal. 3d 809, 818, 169 Cal. Rptr. 691, 620 P.2d 141 (1979). At issue is whether the insurer’s duty to consider the welfare of the insured includes a duty to consider injury to the insured that results from a decision to not settle.

The court ruled that the insurance company cannot limit its decision not to settle to the issue of an excess verdict.  Relying on the case of Bodenhamer v. St. Paul Fire & Marine Ins. Co., 192 Cal. App. 3d 1472, 1478-79, 238 Cal. Rptr. 177 (1987), the court said that in determining whether to settle, the insurer has a duty to consider injury to the insured, such as emotional distress and injury to business goodwill that proximately flow from the failure to settle.

Landow, 892 F. Supp. 239, 241.

The malpractice case went to trial.  The verdict was against the doctor.  However, the insurance company settled the case before any judgment could be entered.  The insurance company argued that the doctor could not prove a claim for bad faith because since there was no judgment, there could be no bad faith damages.

The court disagreed with the insurance company’s argument.  It said:

Defendant’s post-verdict settlement does not bar Plaintiff from attempting to recover any damages for emotional distress and injury to business goodwill that he can prove. Whether Defendant breached its duty to settle, and whether Plaintiff was injured and suffered damages as a proximate result of the alleged breach remain issues for the jury to decide.

Id., at 242.

If you have further questions about bad faith claims, please contact Mike Mills at Bauman Loewe Witt & Maxwell.  He can be reached at 702.240.6060×114.  You can also email him at