dissenting. I concur with the decision of the majority upholding the trial court’s decision that the plaintiff did not prove the tort of bad faith. I would, however, reverse the court of appeals’ decision on the claim for breach of the contract to defend, as I believe that there simply is no causal connection between Wikel’s damages, that is, the Miller judgment, and USF&G’s alleged breach of the duty to defend.
This case does not involve coverage issues. Instead, the only legal basis for attaching liability to USF&G for the Miller judgment is through a theory of a breach of the duty to defend. Wikel concedes in its reply brief that a breach of the duty to defend may not create coverage where none otherwise exists. Thus, without a right to coverage, the only way USF&G can be liable to pay the amount of the judgment is if it is determined that USF&G breached a duty to defend and that breach proximately caused the judgment to be rendered against the insured.
Yet, the coverage issue is important, as it triggered the insured’s option to retain personal counsel and control the defense. USF&G, although having agreed to provide a defense under a reservation of rights, did not defend the case. The reservation of rights letters introduced at trial put Wikel on notice of the potential that it might have direct exposure on the Miller complaint. That Wikel understood this potential is evident from its initial and continued retention of Ebert to act as defense counsel. Ebert, as Wikel’s own attorney, took the case to trial, apparently with no objection from Wikel. It was the legal strategy of Ebert that ultimately caused the judgment in favor of the Millers. And it is Ebert’s malpractice, for which Wikel received a $1 million settlement, not the breach of the duty to defend by USF&G, that resulted in the damages Wikel now seeks to pass on to USF&G.
The wrongdoing by USF&G, according to the facts evinced at trial, was that it assigned an attorney to the defense of the Miller claim and never formally revoked that assignment. Yet, counsel is presumed competent and Wikel was represented in this claim by competent counsel of its choosing. Maybe Wikel could have claimed against USF&G for the cost of its defense. But it cannot reasonably claim as damages the amount of the Miller judgment by saying that *636the judgment directly and proximately flowed from the fact that particular counsel, USF&G’s assigned counsel, did not defend the case.
For the foregoing reasons, I would reverse the judgment that Wikel’s damages in the amount of $1,500,000 directly resulted from breach of USF&G’s duty to defend. Moreover, even assuming arguendo that the judgment amount could be attributed to the breach of the duty to defend, I would agree with the court of appeals that the amount of the Ebert settlement should be set off from the judgment rendered against USF&G for the same injury.
Petree, J., concurs in the foregoing dissenting opinion.