holding that failure to accept policy limits offer within two weeks allowed was not evidence of bad faith where “the case was less than four months old. Discovery had scarcely begun. There were several defendants . . . no report of the incident was submitted . . . [to the insurer] until suit was filed.”
How later courts described this case
- holding that failure to accept policy limits offer within two weeks allowed was not evidence of bad faith where “the case was less than four months old. Discovery had scarcely begun. There were several defendants . . . no report of the incident was submitted . . . [to the insurer] until suit was filed.”
- stating that “a wrongful failure to settle arises from the insurer’s contractual obligation to defend” and “[a]n action to enforce that obligation is accordingly based on breach of contract.”
- considering claim of bad faith in settling insurance claim and noting that courts "have adopted, in our development of the substantive case law, the principle that the insurer's duties are contractually based and then approved a tort standard of care for determining when the contract duty has been breached"
- finding no bad faith where insurer rejected policy limit offer that was "premature, had conditions attached to it, and was only open for two weeks.”
Written by the judges who cited it.
The opinion
McFarland, J.,
concurring in part and dissenting in part: I concur with that portion of the majority opinion that affirms the district court’s determination that Aetna did not act in bad faith in its dealings with its insured. I disagree with the balance of the opinion.
The majority opinion first concludes the district court correctly entered summary judgment in favor of Aetna as the insurer did not act in bad faith with its insured. The majority then proceeds to determine whether or not the insured’s claim for bad faith sounds in contract or tort and hence whether or not it could be assigned. Under the circumstances, the determination of these *320 issues is a gratuitous and improper appendage to the opinion in the case before us. It would appear that the majority has climbed a tree in order to overrule Syl. ¶ 4 of Heinson v. Porter, 244 Kan. 667 , 772 P.2d 778 (1989).
I further disagree with the majority’s determination that the issue of interest beyond ordinary judgment interest is properly before us. The pertinent facts are set forth in the majority opinion. Based upon those facts, I would reach the opposite conclusion.