Opinion
Nos. 75-1039, 75-1129.
June 2, 1976. Rehearing Denied October 14, 1976.
Appeal from the Circuit Court, Dade County, Francis J. Christie, J.
George Schwartz, Miami Beach, for Chastain.
Weissenborn, Burr Hyman, Miami, for Allstate.
Carey, Dwyer, Austin, Cole Selwood and Steven Berger, Miami, for Federal.
Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
Plaintiffs appeal a final judgment in favor of defendant Federal Insurance Company in an action to recover the excess over the policy limits of the judgment on the alleged ground that Federal exercised bad faith in refusing to settle the claim for the policy limits.
On December 1, 1967 William Wilbur Chastain was driving an automobile owned by Jack Rhodabarger and insured by Allstate Insurance Company, one of the appellants, when it was struck by an automobile driven by Julio Sanchez and owned by Maximino Jorge who was uninsured. Sanchez, however, had an automobile liability insurance policy with $10,000/20,000 limits issued by Federal. As a result of the collision, William Chastain was fatally injured and his wife Josephine, a passenger in the car and the other appellant, sustained serious bodily injury. On behalf of herself and as administratrix of her husband's estate, she filed suit against Sanchez and Jorge. Federal undertook to defend Sanchez, but concluded it afforded no coverage to Jorge. Subsequently, Mrs. Chastain settled with Federal as to Sanchez for $19,500. She also obtained a $70,000 default judgment against Jorge and then successfully pursued a $20,000 uninsured motorist claim against Allstate (because Jorge had no liability coverage). Thereafter Mrs. Chastain and Allstate, as subrogee, filed the instant bad faith action for Federal's alleged failure to settle on behalf of Jorge. The cause came on for final hearing and the trial judge entered judgment in favor of Federal. Allstate and Josephine Chastain appeal. We affirm.
The established law in Florida is that in cases where recovery of the excess over policy limits of a judgment against the insured is sought from his insurer upon the ground that the insurer's conduct in failing to effect a settlement within the policy limits amounts to bad faith, there can be no liability in the absence of an offer by the person claiming against the insured to settle within the policy limits. Beck v. Kelly, Fla.App. 1975, 323 So.2d 667 and cases cited therein.
It affirmatively appearing from a review of the record that Josephine Chastain made no offer to settle as to Jorge, the trial judge was eminently correct in entering judgment for Federal Insurance Company.
Affirmed.