Justice Thomas Feinman


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Insurer moved for dismissal of plaintiff’s action. Plaintiff obtained a judgment against Mario Froehlich in an underlying personal injury suit, and Froehlich assigned his rights to any “bad faith” claim he may have against insurer to plaintiff relating to the underlying suit. Plaintiff, as subrogee of Froehlich’s rights, sued insurer alleging it refused to settle the action within policy limits, in bad faith, seeking the difference between the Appellate Division’s reduced amount—from $550,000 to $300,000—and insurer’s $100,000 policy. Insurer argued it had a reasonable basis to conclude there was no objective proof plaintiff sustained a “serious injury” related to the accident. The court found, under the totality of the circumstances, issues of fact existed if insurer’s $3,000 offer was reasonable, if it communicated the risk of not settling within the policy limits to its insured, and if it acted in the insured’s best interests. Thus, it ruled several fact issues existed if insurer acted in gross disregard for its insured, thereby exposing his assets by refusing to settle within the policy limits while acting in its exclusive control of the settlement discussion on the insured’s behalf. Hence, the court denied insurer’s motion for summary judgment dismissing plaintiff’s action.