Later courts went against this
Overruled on other grounds by Badillo v. Mid Century Insurance Co., 121 P.3d 1080 (2005)
321 P.2d 685, 687 (Okla. 1957), overruled on other grounds by Badillo v. Mid Century Ins. Co., 121 P.3d 1080
The opinion
HALLEY, Justice
(dissenting).
I dissent to the majority opinion in this case because I am unable to find in the record of this case any evidence that the insurance carrier was guilty of either negligence or bad faith in its refusal to settle the case of Eppler v. Jones, which became Jones v. Eppler, Okl., 266 P.2d 451 . The only evidence of alleged negligence is that the defendant insurance company refused to accept propositions of settlement made in the case of Eppler v. Jones. The defendant hired an able and experienced lawyer who had devoted many years of his professional life to the defense of personal injury actions. There was nothing to show that he was negligent or arbitrary in this matter. From the evidence it is clear that in his opinion there was no liability on the part of L. C. Jones Trucking Company or L. C. *689 Jones to Eppler. After losing in the trial court he was still convinced of the soundness of his position and appealed to this Court where he submitted an able and comprehensive brief of one hundred and eighty seven pages. Although the decision of this Court was adverse to his position only six Justices participated in the opinion and of those participating one Justice concurred in part and dissented in part. I submit that there is no evidence in this case of negligence or bad faith on the part of the insurance carrier.
I am not unmindful of the two Oklahoma cases on this question which are Boling v. New Amsterdam Casualty Co., 173 Okl. 160 , 46 P.2d 916 and National Mutual Casualty Co. v. Britt, 203 Okl. 175 , 200 P.2d 407 , 218 P.2d 1039 . The Boling case reversed the trial court for sustaining a demurrer to the petition which alleged bad faith and in the Britt case there was evidence offered which this Court- thought showed negligence and bad faith.
In my judgment the proper rule in this case has been laid down by the Pennsylvania Supreme Court in Cowden v. Aetna Casualty and Surety Company, 389 Pa. 459 , 134 A.2d 223, 224 , decided June 28, 1957. I set out three of the headnotes therein:
“Insurer has no absolute duty to settle claim though possible judgment may exceed policy coverage, and it is not required to submerge its own interests and to make insured’s interests paramount.
“In insured’s action against automobile liability insurer for failure to settle action for injuries sustained by automobile passenger when automobile collided with insured’s truck which had been parked, partially on highway, for a sum which was in excess of policy limits but which was less than judgment finally rendered, evidence on issue of whether insurer had been guilty of bad faith was insufficient for jury.
“For insured to recover from his public liability insurer based on insurer’s refusal to accept offer of settlement which, though it was in excess of policy limits, was below judgment finally rendered, insured was required to establish bad faith by clear and convincing evidence.”
I consider the case of Hall v. Preferred Accident Insurance Co. of New York, 5 Cir., 204 F.2d 844 , 40 A.L.R.2d 162 , and extensive note at page 168, which was cited in the Pennsylvania case as very helpful in the controversy before us. See also 45 C.J.S. Insurance § 936 b.
Surely to make an insurance carrier liable in a case of this nature something else must be shown than the refusal to accept propositions of settlement. If the majority view is to be the law, an insurance carrier must accept all such propositions or be liable at his peril for any judgment regardless of the amount. In my opinion that is not sound law.
I dissent.