Conford, Foley and Leonard. The opinion of the court was delivered by Foley, J.A.D.
Defendant appeals from a judgment for plaintiff for the excess over the policy limits on a judgment recovered against plaintiff as the result of an automobile accident. Plaintiff claimed wrongful refusal by defendant insurance carrier to settle the case within the policy limits.
Plaintiff Bowers purchased from defendant an automobile liability insurance policy with $20,000/$40,000 limits. While the policy was in effect plaintiff was involved in an automobile-pedestrian accident. The pedestrian Albert Seagrave, 21 months of age, through his guardian brought a negligence action against Bowers; his father and guardian sued individually for consequential damages. In that case the jury returned a verdict of $20,000 for the infant and $9,000 for the father. The present defendant investigated the case and handled its defense through retained counsel.
Thereafter, Bowers sought a new trial upon the grounds that (1) the trial court erred in failing to grant his motion for involuntary dismissal at the trial, and (2) the verdict was
contrary to the weight of the evidence. The motion was denied. Bowers then appealed to this court, arguing solely that there was not sufficient evidence of negligence to take the case to the jury. In an unreported per curiam opinion the judgment was affirmed. Counsel retained by defendant insurance carrier handled these proceedings in the name of Bowers.
After denial of the motion for new trial but before the appeal was taken defendant, on the advice of counsel, refused an offer by the Seagraves' attorney to accept $20,000 in full settlement, although Bowers requested defendant to accept the offer.
Following the affirmance on appeal defendant herein paid $20,000 plus interest to Seagraves. Thereupon, Bowers instituted the present action to recover the excess of $9,000 plus interest and costs.
In his complaint plaintiff alleges:
"The failure of the defendant to pay the sum demanded of it in settlement of the claim of the said Albert Seagrave and Joseph Seagrave, Sr. was careless, negligent and in bad faith to the plaintiff in the circumstances above set forth; the defendant acted, not in the interest of the plaintiff, but in its own interest in refusing to make settlement after motion for a new trial was overruled; because of the defendant's bad faith, carelessness and refusal to make said settlement at said time, the plaintiff has been made subject to liability for $9,000.00 with interest thereon from February 5, 1964."
The matter was tried before a jury. At the conclusion of plaintiff's case defendant moved for judgment upon the grounds that (1) there was no evidence that it was negligent in the investigation of the case or in the prosecution of the defense, and (2) bad faith was not established by the refusal to accept the claimants' settlement offer. The trial court granted the first portion of the motion and withdrew the negligence theory from the consideration of the jury. On this appeal plaintiff does not argue that the court erred in its disposition of the negligence charge. We therefore dismiss from further consideration that aspect of plaintiff's original claim for relief.
At the close of the entire case defendant, on motion for involuntary dismissal, again argued, inter alia, that the proofs were barren of any inference that defendant was guilty of bad faith in failing to settle the case in the circumstances hereinafter set forth. The trial court again denied that branch of defendant's ...