Ben Purscell v. Tico Insurance Co. , 790 F.3d 842 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2362
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Ben Purscell
lllllllllllllllllllll Plaintiff - Appellant
v.
Tico Insurance Co.; Infinity Assurance Insurance, Company
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: November 12, 2014
Filed: June 22, 2015
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Before BYE, SHEPHERD, and KELLY, Circuit Judges.
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BYE, Circuit Judge.
Ben Purscell sued his motor vehicle liability carrier, Infinity Assurance
Insurance (Infinity), contending the insurer acted in bad faith in handling claims
brought against him by third parties injured in a motor vehicle accident. Purscell
alleged Infinity exposed him to excess judgments when it failed to settle the third
party claims within his policy limits. The district court1 granted summary judgment
to Infinity, concluding the insurer did not act in bad faith or breach any fiduciary duty
it owed to Purscell. See Purscell v. TICO Insurance Co., 959 F. Supp. 2d 1195, 1204
(W.D. Mo. 2013). We affirm.
I
On the evening of May 19, 2006, Purscell's vehicle collided with another
vehicle, injuring both of its occupants, Tim and Amy Carr. Amy Priesendorf, a
passenger in Purscell's vehicle and one of his co-workers, died as a result of the
accident. The circumstances leading up to the collision were somewhat unusual.
Earlier that evening, Priesendorf (whom Purscell had only known for a couple of
weeks) visited him at his home. She was distraught and drunk. She asked Purscell
to give her a ride. He agreed. She directed him to a cemetery, where she visited a
friend's grave.
On the return trip to Purscell's home, Priesendorf's behavior became erratic.
From the passenger seat, Priesendorf stretched her leg over and put her foot down on
the accelerator, on top of Purscell's foot. Purscell told her to stop. She did. Later in
the trip, however, Priesendorf unbuckled her seat belt, scooted closer to Purscell, and
repeated the erratic behavior. Purscell tried to get his foot out from under hers but
was unable to do so. As they approached an intersection with a stop sign, he again
told Priesendorf to stop and put his other foot on the brake, but with no effect.
Purscell saw the headlights from the Carrs' vehicle and told Priesendorf another car
was approaching the intersection. Priesendorf saw the other vehicle, but continued
to press down on the accelerator.
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
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Purscell estimated his vehicle reached a speed as high as seventy-five miles per
hour before entering the intersection. Purscell swerved left to avoid an accident, but
the two vehicles still collided. Both vehicles overturned. The Carrs' vehicle caught
fire. Priesendorf was thrown from Purscell's vehicle and pronounced dead at the
scene. Tim Carr was seriously injured and airlifted to a hospital. Amy Carr also
suffered injuries and was taken by ambulance to a hospital. Purscell was injured as
well.
Following the accident, Purscell learned the gravesite Priesendorf visited on
the night of the collision belonged to a person who had been killed in an accident
while Priesendorf was driving drunk. He also learned Priesendorf had been
hospitalized for attempting suicide following her friend's death, and that none of her
other friends would give her a ride because she would jerk the steering wheel out of
their hands or "do stuff" with the accelerator while they were driving.
Infinity insured Purscell's vehicle at the time of the accident. The policy
limited liability to $25,000 per person and $50,000 per accident for bodily injury.
Within days of the accident, Infinity learned the accident involved one fatality, one
severe injury (Tim Carr's) and one minimal injury (Amy Carr's). Infinity immediately
put the full $50,000 per accident policy limits on reserve, with $25,000 designated
to Priesendorf's fatality and $25,000 designated to the Carrs.
Several key events relevant to Purscell's bad faith claim occurred within the
months following the May 19 accident. First, Infinity received a settlement offer
from the Carrs a very short time after the accident. On June 6, an attorney
representing the Carrs contacted Infinity and requested the full limits of Purscell's
policy. At that time, Infinity learned Tim Carr's medical expenses alone were over
$97,000 and ongoing. Amy Carr was making a loss of consortium claim in addition
to a claim for her own personal injuries, with medical expenses of $1,600, lost wages
of over $1,500, and all categories of loss expected to be ongoing. But with the
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accident having occurred just three weeks earlier, Infinity had not yet completed its
investigation and had questions about whether its policy extended coverage because
of the intentional nature of passenger Priesendorf's conduct. Infinity told the Carrs'
attorney it needed to investigate issues of coverage further before it could make a
settlement offer, and would contact the attorney after completing its investigation.
At the same time, Infinity sent two letters to Purscell, one informing him a demand
of $50,000 had been received, and the other telling him Infinity was declining to enter
into settlement negotiations until further investigation of coverage issues had been
conducted. Infinity also informed Purscell of the possibility the claims arising from
the accident may exceed his insurance coverage, and of his right to seek independent
counsel.
Second, the Carrs withdrew their settlement offer. On June 14, Carrs' attorney
contacted Infinity requesting clarification of the coverage issues Infinity had
mentioned. When Infinity did not respond within a week, the attorney withdrew the
settlement offer.2 A week later, Infinity contacted the Carrs' attorney and stated "We
are not denying any liability in the case to the Carr's [sic], but with a fatality involved,
limits are going to be settled on a prorata basis and most likely submitted to the court
for settlement." Carrs' attorney responded that given Priesendorf's role in the
accident, he did not believe any wrongful death claim on her part would be
meritorious. The attorney did not extend another settlement offer, however, but
merely informed Infinity the Carrs were open to settlement discussions. More
specifically, Carrs' attorney stated if "Infinity is interested in settlement of the bodily
2
The Carrs withdrew the settlement offer just two weeks after having initially
made it, notwithstanding the fact that the initial settlement offer included two signed
medical authorizations to enable Infinity to obtain the Carrs' medical records in order
to allow Infinity to verify the Carrs' personal injuries. A representative of Infinity
averred that in her experience, "it invariably takes more than two weeks to obtain
medical records from providers through the use of such medical authorization forms."
App. at 27-28.
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injury claims or consortium claims of Tim or Amy Carr, I assume you will
communicate to me offers of settlement rather than file litigation proposing
distribution of part of the policy limits of coverage to heirs of Amy Priesendorf."
App. at 279-80.
Third, on July 6, less than two months after the accident, Infinity learned
Priesendorf's parents intended to pursue a wrongful death claim. Shortly after Infinity
learned it was dealing with three claims against Purscell, the Carrs' attorney informed
Infinity he was filing suit. Purscell was served with the Carrs' lawsuit on July 29.
Over the course of the next four months, Infinity's records indicate it regularly
requested updates from the lawyers for both the Carrs and the Priesendorfs regarding
the status of their negotiations over how to split the $50,000 policy limits between the
Carrs' personal injury claims and Priesendorf's wrongful death claim. Infinity's
records also show that throughout this period, Infinity's attorney discussed the
possibility of filing an interpleader to deposit the full policy limits in court if an
agreement regarding the division of the policy limits between the three claimants
could not be reached.
Fourth, Infinity received a request from Purscell to settle the Carrs' claims
within his policy limits. On August 14, the attorney representing Purscell as a result
of the criminal charges arising from the accident contacted Infinity on Purscell's
behalf. The letter referenced the claim brought by the Carrs,3 but did not reference
the wrongful death claim by Priesendorf. The letter stated "In your representation of
this claim, Mr. Purscell requests that you settle this matter within his policy limits."
Infinity responded to the letter indicating Priesendorf was also asserting a claim, and
the claimants were in negotiations over dividing the full policy limits. Purscell's
criminal attorney did not respond.
3
In addition, the Carrs' complaint was attached to the letter.
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Fifth, the Priesendorfs made a formal settlement offer. On November 13,
Infinity received a letter from an attorney representing Priesendorf's father. Similar
to the settlement offer initially extended by the Carrs but later withdrawn, the
Priesendorfs also demanded the full per person limits of Purscell's policy.
Finally, on December 4, less than a month later after receiving the Priesendorfs'
formal demand for the per person policy limits, Infinity filed a petition for an
interpleader action in Missouri state court. The interpleader action referenced the
competing claims for Purscell's full policy limits brought by the Carrs and the full per
person limit brought by the Priesendorfs and stated Infinity "is ready, willing, and
able to pay, and hereby offers to pay, into the Court's Registry the applicable bodily
injury coverage policy limits of $50,000." After receiving the formal settlement
demand from Priesendorf's father but prior to filing the interpleader action, Infinity
wrote to Purscell's criminal attorney requesting her "input or recommendations as to
how settlement could be accomplished without the necessity of filing an
interpleader." When the attorney did not respond, Infinity proceeded with its
interpleader action without Purscell's input.
The lawsuit the Carrs filed against Purscell proceeded to trial in January 2008.
The evidence at trial included Purscell's conviction for careless and imprudent
driving, testimony from Amy Carr that Purscell was driving without having turned
on his headlights, and Purscell's admission that he could have done a number of
things to avoid the accident, such as stopping the car, turning the engine off, or
pulling over to remove Priesendorf from the vehicle.4 In closing argument, the Carrs'
attorney suggested Purscell was minimally at fault for the accident, and placed his
percentage of liability between one percent and five percent. Despite this suggestion
by the Carrs' own attorney, the jury found that Purscell and Priesendorf were equally
4
Purscell did not attend the trial. His testimony was presented to the jury by
videotape.
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at fault, and assessed fifty percent responsibility to each. The jury further awarded
Tim Carr $830,000 in damages and Amy Carr $75,000 in damages.
In February 2008, a Missouri state court approved the settlement of Amy
Priesendorf's wrongful death claim for $7,764.50 in exchange for a release against
Purscell. The state court then apportioned Infinity's $50,000.00 policy limits among
the parties as follows: $7,764.50 to Priesendorf's parents, $25,000.00 to Tim Carr,
and $17,235.50 to Amy Carr, leaving Purscell with a substantial judgment against
him and in favor of the Carrs in excess of his policy limits.
In December 2011, Purscell sued Infinity in Missouri state court alleging
claims for bad faith and breach of fiduciary duty. After Infinity removed the case to
federal court, it moved for summary judgment. The district court granted summary
judgment. The district court first concluded Infinity did not act in bad faith when it
failed to accept the Carrs' early settlement offer (before the offer was withdrawn just
two weeks later) for a number of reasons, including: (1) knowledge of a fatality
arising from the accident and Purscell's potential liability for a wrongful death claim
independent of the Carrs' claims for the policy limits; (2) Infinity's need to complete
its investigation of coverage issues involving Priesendorf's intentional conduct; and
(3) the lack of a specific deadline from the Carrs for when the offer would be
withdrawn if not accepted. See Purscell, 959 F. Supp. 2d at 1201.
The district court further concluded Infinity did not act in bad faith during the
period of time after the Carrs withdrew their early settlement offer. The district court
first considered the fact that the Carrs never renewed their offer to settle within the
policy limits after having withdrawn it. Id. at 1202. Ultimately, however, the district
court interpreted Missouri law as requiring Purscell to have made a sufficiently
definite demand upon Infinity to settle the Carrs' claims within his policy limits, even
in light of the potential outstanding wrongful death claim by Priesendorf, in order for
Infinity to be liable for a bad faith failure to settle claim. See id. at 1202-03 (citing
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Bonner v. Auto. Club Inter-Ins. Exch., 899 S.W.2d 925, 928 (Mo. Ct. App. 1995)).
The district court determined the initial August 14 letter Infinity received from
Purscell's criminal attorney referencing the Carrs' claims, coupled with a lack of
response after Infinity informed the attorney Priesendorf was also asserting a claim,
was insufficient to communicate to Infinity that Purscell "wanted Infinity to exhaust
the proceeds of the insurance policy by settling with the Carrs even in light of the
pending wrongful death claim." Id. at 1203.
Finally, the district court granted summary judgment in favor of Infinity on
Purscell's breach of fiduciary duty claim, which Purscell brought on the grounds that
Infinity failed to inform him adequately of the claims brought against him. The
district determined the letters Infinity sent Purscell following the accident "show that
Infinity provided [Purscell] with information about the claim, his excess exposure,
and the coverage issues in a timely fashion; included a number to call in case he had
questions; and suggested he retain his own attorney." Id. at 1204. Purscell filed a
timely appeal.
II
We apply de novo review to the district court's grant of summary judgment.
Occidental Fire & Cas. Co. v. Soczynski, 765 F.3d 931, 935 (8th Cir. 2014).
To prove his bad faith failure-to-settle claim under Missouri law, Purscell was
required to show Infinity: (1) reserved the exclusive right to contest or settle any
claims brought against him; (2) prohibited him from voluntarily assuming any
liability or settling any claims without consent; and (3) was guilty of fraud or bad
faith in refusing to settle a claim within the policy limits. Scottsdale Ins. Co. v.
Addison Ins. Co., 448 S.W.3d 818, 827 (Mo. 2014) (en banc) (citing Zumwalt v.
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Utils. Ins. Co., 228 S.W.2d 750, 753 (Mo. 1950)).5 An insured must show more than
just negligence on the part of an insured to establish the bad faith element of the
claim. See Zumwalt, 228 S.W.2d at 753. "The evidence must establish that insurer
intentionally disregarded the insured's best interests in an effort to escape its full
responsibility under the policy." Rinehart v. Shelter Gen. Ins. Co., 261 S.W.3d 583,
595 (Mo. Ct. App. 2008) (citing Zumwalt, 228 S.W.2d at 754). Implicit in the
"refusing" aspect of the bad faith element is a showing that the insurer had a
reasonable opportunity to settle within the policy limits. See State Farm Fire & Cas.
Co. v. Metcalf, 861 S.W.2d 751, 756 (Mo. Ct. App. 1993) ("There is no showing that
State Farm had an opportunity to settle the claim against the estate within its policy
limits. Not having had an opportunity to settle the claim within policy limits, State
Farm could not have refused to do so.").
Infinity argues it acted in good faith by trying to reach a global settlement of
all three claims brought against Purscell, despite the insufficient limits of his policy.
Infinity relies in part upon evidence which shows Purscell was living paycheck to
paycheck and wanted Infinity to do whatever it could to completely protect him from
liability, which included any personal exposure he had to a claim brought by Amy
5
The district court cited the Missouri Court of Appeals' decision in Bonner for
the proposition that an insured must show – as a necessary element of a failure-to-
settle claim – that he or she made a demand upon the insurer to settle within the
policy limits. Our court has also cited Bonner, as well as Dyer v. General American
Life Insurance Co., 541 S.W.2d 702, 704 (Mo. Ct. App. 1976), for the same
proposition. See Am. Guarantee & Liab. Ins. Co. v. U.S. Fid. & Guar. Co., 668 F.3d
991, 1002 (8th Cir. 2012). In Scottsdale, the Missouri Supreme Court clarified that
a demand to settle within the policy limits is not actually an element of the tort, but
merely a factor to consider when determining whether an insurer acted in bad faith.
See 448 S.W.3d at 827 n.5 ("This Court has never required the insured to make a
demand for settlement and declines United Fire's invitation to do so. The existence
of a demand is, nevertheless, highly relevant in determining whether an insurer acted
in bad faith in refusing to settle.").
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Priesendorf's parents. Infinity contends it never had an opportunity to settle the Carrs'
claims within the policy limits because the Carrs unexpectedly withdrew their only
settlement offer before Infinity had a reasonable opportunity to complete its
investigation. Infinity emphasizes that there is no evidence it ever tried to escape the
responsibility of paying the full limits of its policy, and that when it was clear it could
not settle all three competing claims, it filed an interpleader action and deposited the
full policy limits into court.
In arguing that Infinity acted in bad faith, Purscell singles out Tim Carr's claim
as the only claim among the three potential claimants that clearly exceeded his per
person policy limits of $25,000. Purscell contends Infinity should have focused on
at least getting Tim Carr's claim settled within the policy limits, even if he might face
personal exposure to the other two claims. In failing to focus on Tim Carr's claim,
Purscell contends Infinity placed its own interests (i.e., protecting itself from the
potential bad faith claim it might face for failing to settle all three claims) over his
interest in being protected from the one claim where he faced the most exposure.
We disagree that Infinity's focus on settling all three claims is evidence of bad
faith. We also disagree with the premise that an insurer's attempt to reach a global
settlement of competing claims, without ever denying the responsibility to pay the full
policy limits, can serve as evidence that the insurer is placing its own interests over
that of its insured. It was in Purscell's interest to have all three claims against him
settled within the policy limits. When a global settlement could not be reached,
Infinity appropriately filed an interpleader action. See Monumental Life Ins Co. v.
Lyons-Neder, 140 F. Supp. 2d 1265, 1270 (N.D. Ala. 2001) ("Because filing an
interpleader action is equivalent to the plaintiff's admitting that it is willing to pay the
legitimate claimant, an interpleading stakeholder cannot logically be subjected to a
claim alleging bad faith refusal to pay."); see also Rinehart, 261 S.W.3d at 595
(indicating bad faith requires proof that an insured tried to escape its responsibilities
to pay the policy limits).
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In addition, the record does not show Infinity ever had a reasonable opportunity
to settle Tim Carr's individual claim within the policy limits in any event. See
Metcalf, 861 S.W.2d at 756 (indicating there can be no claim for bad faith in refusing
to settle a claim where the insured is not presented with an opportunity to settle). As
the district court noted, the Carrs unexpectedly withdrew their only settlement offer
shortly after making it, without giving Infinity a reasonable opportunity to investigate
and evaluate their claims. See Purscell, 959 F. Supp. 2d at 1201-02 (discussing the
early withdrawal of the Carrs' settlement offer and citing those cases which hold an
insurer must be afforded a reasonable opportunity to investigate and evaluate a claim
before responding to a settlement offer in order to be subject to a bad faith failure-to-
settle claim). Finally, even though Purscell was not required to show he singled out
Tim Carr's claim and demanded Infinity settle that claim within the policy limits, see
Scottsdale, 448 S.W.3d at 827 n.5, the fact that Purscell never clearly communicated
as much to Infinity "is, nevertheless, highly relevant in determining whether an
insurer acted in bad faith in refusing to settle," id. When Purscell's criminal attorney
sent the August 14 letter referencing the Carrs' claims, Infinity responded by noting
the presence of the third claim asserted by the Priesendorfs. Instead of telling Infinity
to focus on settling Tim Carr's claim at that time, neither Purscell nor his attorney
responded. As a result, we conclude no reasonable jury could determine Infinity
acted in bad faith by continuing to focus on a global settlement of all three claims.6
III
We affirm the judgment of the district court.
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6
We affirm the district court's grant of summary judgment on Purscell's separate
claim for breach of fiduciary duty for the reasons expressed by the district court. See
8th Cir. R. 47B.
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