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HUNG JURY – CONFIDENTIAL Insurance Obligation – Bad faith insurance claim – Alleged failure to timely tender $________ policy limit – Underlying negligent security action – Total blindness in one eye.

Palm Beach County, FL

This was a bad faith insurance action, in which the third-party plaintiff sought to collect an excess judgment based on the third-party defendant insurance company’s alleged bad faith in failing to timely tender an underlying $________ policy limit. The insurance carrier maintained that the policy limit was timely tendered pursuant to the totality of the circumstances and rejected by the underlying plaintiff.

The underlying plaintiff was injured in a fight that started inside a gentleman’s club and ended outside in the parking lot. He sustained an eye injury which rendered him totally blind in one eye. The injured plaintiff filed a negligent security suit against the gentleman’s club, as well as the owner of the shopping center where the incident occurred.

The shopping center settled the underlying action for $________. The case proceeded to a jury trial against the gentleman’s club with a finding of 80% negligence against the club and 20% comparative negligence against the plaintiff. The plaintiff was awarded a net judgment of $________ in the underlying suit. The gentleman’s club had a policy sub-limit of $________ under the assault and battery coverage issued by the defendant insurance carrier.

The third-party plaintiff (gentleman’s club) argued that, although the underlying plaintiff initially indicated that the $________ policy limit would not be accepted, circumstances changed during litigation, including certain rulings by the trial court and a settlement from the co-defendant shopping center.

The legal counsel for the injured plaintiff in the underlying action testified that the plaintiff would have accepted the $________ policy limit up until approximately one month prior to mediation of the underlying action. However, the third-party plaintiff alleged that the insurance carrier did not timely offer the policy limits. The third-party plaintiff contended that, had the policy limit been offered by the insurance carrier, the offer would have been documented in writing and no such documentation was produced.

The defendant insurance carrier called third-party plaintiff’s (Gentleman club’s) defense counsel in the underlying negligent security action. This attorney testified that the underlying plaintiff’s counsel indicated, in a telephone conversation at the inception of the defense of the case, that the underlying plaintiff would not accept the club’s policy limits and was going for an excess verdict. The insurance carrier also offered a letter, written pre-suit in ________ by the underlying plaintiff’s counsel, confirming that the $________ policy limit would not be accepted.

The defense argued that attorney billing records supported the defense position that an offer of the policy limits had been made and had been rejected by underlying plaintiff’s counsel in ________. The insurance carrier’s log notes also showed that authority had been granted to defense counsel to offer the $________ policy limit in settlement of the case, according to defense arguments.The jury was hung and a mistrial was declared. It was subsequently disclosed that the jury had voted five to one in favor of the third-party defendant insurance carrier. The case has been settled for an undisclosed sum.

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