{
  "id": 8720987,
  "name": "Wells R. McCALL, Jr. v. SOUTHERN FARM BUREAU CASUALTY INSURANCE Company",
  "name_abbreviation": "McCall v. Southern Farm Bureau Casualty Insurance",
  "decision_date": "1973-10-29",
  "docket_number": "73-108",
  "first_page": "401",
  "last_page": "404",
  "citations": [
    {
      "type": "official",
      "cite": "255 Ark. 401"
    },
    {
      "type": "parallel",
      "cite": "501 S.W.2d 223"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "254 Ark. 211",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1624133
      ],
      "weight": 2,
      "year": 1973,
      "opinion_index": 0,
      "case_paths": [
        "/ark/254/0211-01"
      ]
    },
    {
      "cite": "251 Ark. 568",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1633426
      ],
      "weight": 2,
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/ark/251/0568-01"
      ]
    },
    {
      "cite": "248 Ark. 618",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1597538
      ],
      "weight": 3,
      "year": 1970,
      "opinion_index": 0,
      "case_paths": [
        "/ark/248/0618-01"
      ]
    }
  ],
  "analysis": {
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    "simhash": "1:f75ed0e6872356aa",
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  "last_updated": "2023-07-14T17:24:11.540726+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Wells R. McCALL, Jr. v. SOUTHERN FARM BUREAU CASUALTY INSURANCE Company"
    ],
    "opinions": [
      {
        "text": "Frank Holt, Justice.\nA jury awarded $15,000 damages to appellant\u2019s guest passenger for injuries sustained in an automobile accident and we affirmed. McCall v. Liberty, 248 Ark. 618, 453 S.W. 2d 24 (1970). Appellant, having liability insurance coverage of only $10,000, paid the $5,000 balance, plus interest and costs. He then brought the present action to recover from appellee, his insurance carrier, that excess of the coverage. Appellant asserted that appellee was negligent in refusing negotiations and settlement within the policy limits. On appeal we first consider the appellant\u2019s contention that the court erred in directing a verdict against the appellant.\nIt is true that an insurer is liable to its insured for any excess judgment of the insured\u2019s policy limits if the failure to settle the claim by the insurer is due to fraud, bad faith or negligence. Tri-State Ins. Co. v. Busby, 251 Ark. 568, 473 S.W. 2d 893 (1971). In the case at bar, only negligence is asserted and, of course, the burden to establish this issue was upon appellant. When we view the evidence, as we must do on appeal, most favorably to appellant against whom the verdict was directed, we are of the view the court correctly held there was no substantial evidence adduced to constitute a factual issue that the appellee was negligent in failing to settle the case within the policy limits.\nThe factual background surrounding the accident is sufficiently detailed in McCall v. Liberty, supra, for purposes of this opinion. At that trial for recovery of damages, the insured\u2019s guest was represented by two attorneys. In the case at bar only one of those attorneys testified. He wrote a letter to appellee\u2019s attorney preceding the trial stating that his client would settle the case \u201cwithin the policy limits at this time.\u201d The letter was made an exhibit to his testimony. He further testified that his only effort to settle \u201cmoney-wise\u201d on behalf of his client was to write this letter to appellee\u2019s attorney to advise him he had the authority to \u201csettle within the limits, whatever those limits might be.\u201d In previous correspondence liability was acknowledged as a close question.\nThe appellant, the insured, testified that at one time, on mistaken information, he had told his insurer\u2019s (appellee) attorney he would pay $2,500 out of his own pocket just \u201cto get it over with.\u201d The appellee\u2019s attorney advised him not to do so as he felt there was no liability. Appellant was also individually represented by an attorney o\u00a3 his own choice in the original lawsuit. Appellant further testified although he was willing to pay his injured friend $2,500 out of his own pocket, he, as well as his own lawyer, agreed with appellee\u2019s attorney there was no liability based upon the allegation of willful and wanton misconduct. His wife was of the same view. It does not appear that appellant\u2019s personal attorney ever made a demand for settlement in the case. Appellant acknowledged that he was \u201cwilling to go to trial,\u201d knowing he would have to pay a judgment in excess of $10,000, because \u201cI really thought we would win it.\u201d\nIn preparation of the trial, the appellee had the benefit of statements from the attending physician, as well as hospital and medical reports. Appellant was interrogated by appellee\u2019s investigator and gave him his version of the accident. Furthermore, it was stipulated that a copy of the state police officer\u2019s investigation was acquired by the appellee during its investigation. The appellant, the insured, himself expressed the view that he did not know of anything the appellee or his attorney \u201cdid wrong\u201d in preparation of the defense to the case and was \u201cwell pleased\u201d with the services of his personal attorney as well as appellee\u2019s attorneys.\nIn summary, after investigation of the claim which was made by appellant\u2019s guest against him, the appellee (insurer) was of the view that the appellant, its insured, was not guilty of willful and wanton misconduct which is required to make a host liable to his guest passenger. The injured party\u2019s attorney, in a letter to appellee\u2019s attorney, expressed, inter alia, that \u201cthe liability is the close question in this matter.\u201d The appellant and his personal counsel appear to have agreed with appellee\u2019s attorney that the asserted liability, based upon willful and wanton misconduct, was a very close question and a favorable jury verdict would result. In retrospect, appellant expressed no complaint about the preparation and defense of the case. In fact, appellant adduced no evidence from any witness that failure to evaluate and settle the lawsuit constituted negligence. Therefore, we hold, as previously indicated, appellant did not establish evidence legally sufficient to constitute a factual issue that appellee negligently failed to evaluate and settle the case.\nAppellant relies upon Members Mutual Ins. Co. v. Blissett, 254 Ark. 211, 492 S.W. 2d 429 (1973). We do not consider this case applicable and it is distinguishable. Among the distinctions are that appellee\u2019s (insurer) attorney, in the case at bar, never recommended that appel-lee pay any sum in setdement of the case. In Blissett the contrary occurred and, in fact, the insurer\u2019s attorney recommended a larger settlement than was offered. There appears to be no conflict in the testimony as to how the accident occurred in the case at bar and there was in Blissett. There was only a formal demand here for settlement \u201cwithin the policy limits,\u201d whatever the limits might be, made by the injured party\u2019s attorney and at the same time acknowledging it was a close case as to liability. Appellant\u2019s personal attorney never made demand for settlement. In Blissett, a mistrial had occurred which clearly indicated the possibility of a recovery by the injured guest.\nAppellant contends the court erred in excluding the proffered testimony of the state policeman who investigated the accident. The court sustained appellee\u2019s objection to the officer\u2019s estimated speed of the vehicle, based upon physical facts, at the time of the accident. It was agreed appellee had a copy of the officer\u2019s report and the results of his investigation. It appears that the report was not offered in evidence by either party. Even if we should hold that his estimate of speed was admissible, we find it does not bolster appellant\u2019s contention that appellee was negligent in handling the case in view of what we have previously said.\nAffirmed.",
        "type": "majority",
        "author": "Frank Holt, Justice."
      }
    ],
    "attorneys": [
      "Jeff Duty, for appellant.",
      "Putman, Davis \u00e91 Bassett, for appellee."
    ],
    "corrections": "",
    "head_matter": "Wells R. McCALL, Jr. v. SOUTHERN FARM BUREAU CASUALTY INSURANCE Company\n73-108\n501 S.W. 2d 223\nOpinion delivered October 29, 1973\n[Rehearing denied December 10, 1973.]\nJeff Duty, for appellant.\nPutman, Davis \u00e91 Bassett, for appellee."
  },
  "file_name": "0401-01",
  "first_page_order": 423,
  "last_page_order": 426
}