CARPENETI, Chief Justice.
This appeal arises from a declaratory action filed by an insurer to clarify the terms of its duties under a policy. The underlying tort action resulted from a car accident in which the insured, while driving a rental truck, hit a person who was lying in the middle of the road. Both the driver and the person struck were intoxicated, as was a passenger in the truck. The person who was struck died from his injuries. The victim's estate and the survivors sued. The insurance company several times offered to settle the case against both the driver and the passenger (who may have faced liability for his actions after the accident) for policy limits. These offers were rejected. The estate offered to settle for the release of the named insured only, but the insurer rejected that offer. The occupants of the vehicle later settled with the estate, confessing judgment for about $4 million each.
After being unable to reach settlement, the insurer filed a declaratory action to clarify its duties under the policy and resolve issues of who was driving the vehicle, the number of occurrences, and possible breaches of the insurance contract by the insureds. The insureds assigned their claims against the insurer to the estate, which answered and counterclaimed for breach of contract and bad faith. The insurer prevailed on nearly all issues. The personal representative of the estate, for herself and as assignee of the insureds, appeals. Because we find that the insurer did not breach its duties to the insured, we affirm the decision of the superior court.
On the morning of September 3, 2000, Alya Landt and Innocent Dushkin were in a rented truck. Both were heavily intoxicated, Landt with a blood alcohol content in the range of .16 to .27 percent and Dushkin with a .17 percent blood alcohol content. Landt was driving the truck.
After running Shapsnikoff over, Landt stopped the truck and Dushkin got out to check on him. When Dushkin got to his side, Shapsnikoff was gasping for breath but did not say anything or respond to Dushkin. According to Landt, Shapsnikoff was making noises "like no normal person makes." According to Dushkin, Landt said she "didn't need to be in any trouble with the cops." Landt and Dushkin then picked Shapsnikoff up and put him in the truck. Dushkin stated they did that because they thought he was still breathing. Dushkin attempted to find a heartbeat but could not. They drove Shapsnikoff to his apartment complex (the parties appear to have known each other socially) and then took him out of the truck and
Shapsnikoff suffered mortal injuries as a result of the accident. The autopsy revealed "numerous blunt force crushing injuries consistent with ... having been run over by a motor vehicle." Shapsnikoff's aorta was nearly completely separated from the aortic ligament, which would have caused massive internal bleeding. The medical examiner believed that, given the injuries, Shapsnikoff lived "seconds to minutes (more likely seconds to two to three minutes)" after the blow. The medical examiner also believed that loading him into the truck did not increase his injuries or hasten his death.
Landt was criminally charged for her role in the incident. The medical examiner testified to the grand jury that Shapsnikoff was unlikely to have lived more than a few minutes after being struck. He also testified that at or near the time of death a person may breathe in a unusual manner, called agonal breathing, either very deep or very shallow, and that it would sound unusual to a lay person. In the criminal trial he testified that Shapsnikoff could have survived at most ten minutes. Landt was ultimately convicted for tampering with evidence and driving while intoxicated but not for criminally negligent homicide or manslaughter.
In August 2002, the appellants, Shapsnikoff's estate and survivors (Shapsnikoffs), filed a civil suit against Landt, Dushkin, and other entities and individuals. Landt and Dushkin ultimately confessed judgment for $4,678,177.42 each.
Landt had a vehicle insurance policy with GEICO Casualty Co. The policy had a liability limit of $50,000 per person and $100,000 per occurrence (plus add-ons consisting of costs, attorney's fees, and interest). The policy also had an uninsured/underinsured coverage limit of $50,000 per person and $100,000 per occurrence. The insurance covered the following for a non-owned vehicle:
GEICO defended Landt as the named insured. GEICO also agreed to provide Dushkin with a defense under a reservation of rights in the event that Dushkin was not an insured under the policy or that intentional acts led to the deceased's injury. The agreement to defend was based on the allegations that either Dushkin or Landt had been driving.
After Landt and Dushkin confessed judgment, they assigned their rights against GEICO to the Shapsnikoffs.
Throughout the pre-lawsuit period and the underlying tort proceedings, GEICO made several attempts to settle the case for the $50,000 policy limit. GEICO first learned of the incident from Landt's attorney on September 8, 2000. At that time, GEICO was informed that Landt had found Shapsnikoff and driven him home. After learning that Landt had been criminally charged, GEICO claims representative Michael Lina sought and was granted authority to resolve any claim Shapsnikoff's estate may have had against Landt. He was authorized to offer $50,000 plus add-ons, the maximum amount per claimant per occurrence. GEICO contacted Phillip Paul Weidner's office, the law firm representing the Shapsnikoffs, several times before the complaint was filed, in an attempt to settle the claim.
After the underlying complaint was filed, on May 7, 2003, the court was advised that GEICO was willing to settle for the policy limit of $50,000. In January 2004, Daniel Quinn, Dushkin's attorney, notified the Shapsnikoffs that he was authorized by GEICO to settle the claims against Dushkin and Landt for a single $50,000 per person limit plus add-ons. In March 2004, David Carter, Landt's attorney, reiterated the offer to settle for $50,000 plus add-ons in return for a release of claims against Landt and Dushkin.
After the failed mediation, Weidner sent identical but independent settlement demands to Dushkin and Landt (via GEICO) for the "true full policy limit proceeds" and 95% of the uninsured/underinsured benefits ($1 million). GEICO rejected any settlement demand that exceeded the $50,000 plus add-ons offer it had previously made. GEICO also filed a declaratory action (from which this appeal arises) to resolve its rights and duties under the policy. In October 2004, GEICO again offered to settle for $50,000 plus add-ons, while reserving some of the claims for resolution in the declaratory action. This offer was not accepted.
On December 13, 2004, Weidner sent independent and identical settlement demands to Landt and Dushkin expressing a willingness to settle for the full policy limits, $50,000 plus applicable add-ons to be determined by the declaratory judgment. GEICO requested clarification of the total amount required to settle all claims against Landt and Dushkin. GEICO also reiterated its standing offer of $50,000 plus add-ons. Weidner once again sent independent but identical letters to Dushkin and Landt, this time stating that GEICO's response was a bad faith rejection of a settlement offer as to both Dushkin and Landt. In the letters he renewed the offer from December 13 or alternatively offered to accept $112,500 total for the release of all claims against Dushkin and Landt; he also requested an acknowledgment from GEICO that payment would "trigger any UIM [Uninsured motorist] coverage." GEICO renewed its offer of $50,000 plus add-ons in exchange for the release of Landt and Dushkin.
On December 24, 2004, Weidner sent letters to Sam Fortier and Marc June (Landt's and Dushkin's personal attorneys) with the proposal that Landt and Dushkin confess judgment of around $10 million each. On December 31, 2004, Weidner sent a similar letter to David Carter and Daniel Quinn. In response GEICO amended its complaint in the declaratory action to request a ruling that if Landt and Dushkin confessed judgment it would constitute a breach of the insurance contract and there would be no insurance coverage.
In October 2006, Weidner, Carter, and Quinn filed a stipulation for entry of judgment. Landt and Dushkin each confessed judgment for $4,678,177.42.
GEICO filed a declaratory action in July 2004, seeking a declaration of its rights and duties. GEICO also filed several amended complaints corresponding to the Shapsnikoffs' evolving theories in the underlying case. GEICO sought the following rulings: (1) if Landt or Dushkin entered into a confession of judgment they would be in breach of the insurance contract and there would be no coverage; (2) entry of an order as to who was driving the car at the time of the accident; (3) if Dushkin was driving the car there was no available coverage; (4) there was no second liability limit available to settle the claims (i.e., no second occurrence); (5) there was no underinsured coverage available; (6) the amount owed, if any; and (7) attorney's fees. The Shapsnikoffs filed an answer and a counterclaim alleging that GEICO had breached the insurance contract and was acting in bad faith both by refusing to offer a settlement at policy limits to both Landt and Dushkin and by filing the declaratory action.
The superior court resolved most of GEICO's requests in its favor on summary judgment, "leaving the question of whether there was a second occurrence that could have been covered under the terms of the policy" unresolved. After trial, the superior court concluded that there was not a second occurrence, that GEICO had a reasonable basis to believe that there was not a second occurrence and so did not act in bad faith in seeking the declaratory action, and that GEICO did not breach the insurance contract when it failed to offer a second $50,000 policy limit settlement for pain and suffering incurred by Shapsnikoff when being loaded into the truck. Therefore, it found that Landt and Dushkin were in unexcused breach of the insurance contract when they
The Shapsnikoffs appeal, arguing that the superior court erroneously (1) concluded that GEICO did not breach its duty to Landt and Dushkin; (2) concluded that there was no second occurrence; (3) concluded that there was not a substantial likelihood of a verdict in excess of policy limits; (4) found Landt and Dushkin to be in material breach when they confessed to judgment; (5) adopted GEICO's proposed findings of fact and conclusions of law; and (6) awarded attorney's fees to GEICO.
We review a trial court's factual findings for clear error.
The Shapsnikoffs make several arguments relating to GEICO's failure to offer or accept the appropriate settlement. They suggest that GEICO had a duty alternatively to offer a $50,000 plus add-on settlement for the release of Landt only or to offer two $50,000 settlements for the release of Landt and Dushkin, and that failure to do so was a breach of the insurance contract and was in bad faith.
It is well settled that an insurer has a duty to offer a full policy settlement where there is a substantial likelihood of an adverse verdict in excess of policy limits.
First, the Shapsnikoffs argue that GEICO had no duty to defend Dushkin because he was not an insured as to the first occurrence, that is, the initial impact. Second, they argue that even if Dushkin were an insured under the policy, GEICO still ought to have offered or accepted a settlement that would release Landt even if Dushkin was still subject to liability. GEICO responds that it had a duty to defend Dushkin based on the legal theories pled by the Shapsnikoffs. GEICO maintains that once it agreed to defend Dushkin, even if Dushkin were defended under a reservation of rights, it had a duty to fully protect Dushkin and could not settle while releasing only Landt.
The Shapsnikoffs' first argument is not persuasive. It is clear from their pleadings and over the course of the litigation that their legal theory was that either Dushkin or Landt was driving or that the two acted in concert. Generally, an insurer's duty is determined by the policy, which is interpreted according to the parties' reasonable expectations in light of the language of the policy as a whole, as well as extrinsic evidence and applicable case law.
The Shapsnikoffs presented a theory under which Dushkin may have been an insured — either as a driver or by acting in concert with Landt.
Once GEICO agreed to defend Dushkin and Landt, it had a legal duty of good faith and fair dealing toward both.
The Shapsnikoffs' second argument — that even if Dushkin were an insured under the policy, GEICO had a duty to offer or accept a settlement releasing Landt even if doing so left Dushkin liable — concerns an unsettled area of law. We have not directly addressed how an insurer should handle multiple insureds. Other jurisdictions have utilized two different approaches. The first is that the insurer should seek to release all insureds, but if it cannot, then it ought to seek to settle on behalf of one.
We are persuaded that the latter approach is the better one. An insurer has a duty to defend its insureds; seeking a settlement to the benefit of one insured while leaving others open to liability could cause unfairness. Further, the latter approach avoids a potential bad faith claim by an insured who was unprotected and efficiently adjudicates the rights and duties of the insurer and the insured.
Under this rule, GEICO did not have a duty to settle for Landt's release while leaving Dushkin open to liability and therefore it was not in breach of contract nor did it commit the tort of bad faith. We affirm the superior court's holding that GEICO did not breach its duties when it offered to settle for only one policy limit for the release of both Landt and Dushkin.
The Shapsnikoffs argue that when Shapsnikoff was loaded into the truck and
The superior court's final findings of facts and conclusions of law resolved the genuine dispute of material fact that precluded summary judgment. The findings were not clearly erroneous. They were based on ample evidence presented at trial, such as the fact that Shapsnikoff was heavily intoxicated when he was hit and was passed out in the middle of the road, testimony regarding the limited amount of time he would have lived, and testimony that he did not respond after Dushkin arrived at his side.
Because the superior court properly concluded that there was no second occurrence, we affirm the superior court.
The Shapsnikoffs argue that GEICO was under a duty to offer a policy limits settlement as to the second occurrence.
In Jackson v. American Equity Insurance Co.
In this case, there was not a great risk that Dushkin and Landt would be liable for a verdict in excess of policy limits with respect to the alleged second occurrence, because it was unlikely that a court would find a second occurrence at all. There was ample evidence to support the conclusion that there was no second occurrence, including evidence that Shapsnikoff was heavily intoxicated at the
The next issue raised is whether Landt and Dushkin breached the insurance contract by confessing judgment. It is clear that confessing judgment can be a breach of the insurance contract.
This issue depends on GEICO's duty to settle.
The Shapsnikoffs argue that the superior court improperly adopted the finding of facts and conclusions of law that GEICO submitted and that the findings themselves were erroneous.
The superior court did not abdicate its duty to independently weigh the evidence by adopting the order. The Shapsnikoffs may be displeased with the findings, but all were properly made. We affirm the superior court's adoption of GEICO's proposed findings of fact.
The Shapsnikoffs' second argument — that the facts adopted by the superior court are erroneous — is not persuasive. Upon review of the record, we conclude that the superior court's findings, far from being clearly erroneous, were amply supported by the evidence. The main factual finding that the Shapsnikoffs dispute is whether there was a second occurrence. The superior court found that there was not, based on evidence that Shapsnikoff was heavily intoxicated and passed out in the middle of the road when he was hit, testimony regarding the limited amount of time he would have lived, and testimony that he did not respond after Dushkin arrived at his side.
The superior court awarded GEICO $112,390 in attorney's fees and costs as the prevailing party. The Shapsnikoffs argue that this was inappropriate for two reasons. First, they argue it is unfair as a matter of public policy to award attorney's fees to an insurer that commences an action against its insured. Second, they argue that AS 09.17.080(d)
The superior court's decision to award attorney's fees is reviewed for abuse of discretion and is overturned only where the award is manifestly unreasonable.
The Shapsnikoffs' argument that joint and several liability for attorney's fees is contrary to law is equally unavailing. Alaska Statute 09.17.080(d) does not apply to this dispute. That statute provides that "[t]he court shall enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault." The Shapsnikoffs argue that this statute requires the court to "pro rata" assign attorney's fees "based on a percentage of the share ... each [plaintiff] could potentially recover." Not only is this nonsensical in an action in which there is no fault apportionment, we have already interpreted this statute on this exact issue:
This was not a case in which AS 09.17.080 applied. The superior court properly awarded attorney's fees to GEICO as the prevailing party.
Because the superior properly exercised its discretion, we affirm the award of attorney's fees to GEICO.
We AFFIRM the decision of the superior court in all respects.
Whitney v. State Farm Mut. Auto. Ins. Co., 258 P.3d 113, 116-17 (Alaska 2011) (footnotes and internal quotation marks omitted).
