holding that an attorney who had handled an insured's claim and continued to represent the insured in other suits brought against it could testify and also share in contingent fee, provided he completely withdrew from participation in case other than as a witness
How later courts described this case
- holding that an attorney who had handled an insured's claim and continued to represent the insured in other suits brought against it could testify and also share in contingent fee, provided he completely withdrew from participation in case other than as a witness
- holding that bad faith “cannot be based upon good faith denial, offers to compromise a claim or for other honest errors of judgment by the insurer”
- requiring plaintiffs to demonstrate that the insurer’s conduct was dishonest, malicious, or oppressive and not based on misjudgment or negligence
- neither a trade practices act nor a penalty-and-fees statute preempt area upon which tort of bad faith is founded
Written by the judges who cited it.
The opinion
Steele Hays, Justice, concurring. With some misgivings, I concurred in our original opinion on the issue of whether attorney Roger Glasgow should be permitted to testify on behalf of the appellee on retrial, and still retain a substantial fee contingent on the outcome of the trial. I found no clear authority on the point and thought that since the jury would be informed of the fee arrangement, that would cure the obstacle. I believe that was a mistake that should be corrected on rehearing.
I have come to this view: Mr. Glasgow may testify on retrial on condition that he entirely disassociate himself from the case or any interest in the outcome. Such hourly fee as he had earned at the time he withdrew and associated other counsel is, of course, due him, but it is due irrespective of the trial and its result. I have nothing definitive to anchor this position to, but if DR 7-109 of the Canons makes it improper for a lay witness to be paid contingent on the outcome, how can it be acceptable for a lawyer witness to be paid on that basis? Beyond that, if a lawyer is not professionally associated in a case regardless of who actually tries it, why is he being paid a contingent percentage of any recovery? The very fact of a contingent fee arrangement suggests that he is still associated in the case.
I have no concern that Roger Glasgow would not adhere strictly to the truth as he sees it, I simply think it is impossible for any witness, however well-intentioned, to weigh facts and retain impressions of events, so as to testify with objectivity when they have a heavy stake in the outcome. The law makes exception for the litigant, of course, but that exception should not be extended to witnesses who are not parties.