In Planet Bingo, LLC v. Burlington Insurance Co., 62 Cal. App. 4th 44, 276 Cal. Rptr. 3d 348 (4th Dist. 2021), the Court found that a liability insurance carrier may have a duty to attempt settlement even though there is no settlement demand within policy limits. The Court acknowledged that some California case law supported the contention that a formal settlement demand within policy limits was a necessary element to any cause of action for bad faith failure to settle. However, the Court steered away from this case law and relied upon another line of California cases that treated an overture suggesting that the claimant might be amenable to negotiating a settlement as being sufficient to trigger a duty to negotiate and attempt to effectuate a settlement. The Court found, at a minimum, that the existence of an opportunity to settle within policy limits could be shown by evidence other than a formal settlement offer. In this case, that evidence came in the form of expert testimony. A claim handling expert described the subrogation demand letter issued in the case as “a clear invitation to negotiate settlement for less than that amount” and that acceptance of policy limits in exchange for a full release was “a very well-known industry custom.” The trial court found, and the California Court of Appeals affirmed, a ruling that the expert’s testimony created a triable issue of fact regarding whether the insurance company had an opportunity to settle, which was all that was required to trigger a liability insurer’s duty to attempt to settle.
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