LITTLE PRINCESS EXPRESS CAB CORP v. AMERICAN TRANSIT INSURANCE COMPANY (2004)

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 13, 2003, which granted defendant's motion for summary judgment dismissing the complaint, and order, same court and Justice, entered November 28, 2003, which denied plaintiff's motion for summary judgment, unanimously affirmed, with costs.

Plaintiff insured failed to make any showing that a demand for settlement was made, and that the insured lost an actual opportunity to settle the claim at a time when all serious doubts about its liability were removed, each of which are requirements for a bad-faith action for failure to settle (Pavia v. State Farm Mut. Auto. Ins. Co., 82 N.Y.2d 445, 454, 605 N.Y.S.2d 208, 626 N.E.2d 24 [1993] ).   On the contrary, defendant-insurer produced competent proof that it had offered to pay the full policy limits prior to trial, but that the plaintiff in the underlying personal injury action refused to settle.   Defendant's failure, if any, to keep plaintiff apprised of the developments in the case against it is insufficient in itself to constitute bad faith (Smith v. General Acc. Ins. Co., 91 N.Y.2d 648, 655, 674 N.Y.S.2d 267, 697 N.E.2d 168 [1998] ).