dissenting:
This case poses a question unanswered by Georgia insurance law and should be certified to the Georgia Supreme Court. The majority opinion misapprehends the issue on appeal. Plaintiffs-appellants in the trial court and here have sought damages for the emotional distress and wrongful death of Dr. Delaney resulting from St. Paul’s negligent and contractual breach of its duty to settle the medical malpractice case against him.
As will be demonstrated below, the law in some states would require that when St. Paul learned (1) that this was a case of liability, (2) that the value of the case to the plaintiff exceeded $100,000, and (3) that it could not be settled for less than the policy limits, the company owed a duty to make known to its policyholder the company’s willingness to pay its policy limits. This would have permitted Delaney to try to negotiate a settlement of the case.
Dr. Delaney was sued in May, 1986. Early on it became clear that Dr. Delaney or someone on the surgical team left a surgical instrument in Ross’ body during the 1974 surgery. On November 14, 1986, St. Paul set its loss reserve at $100,000. In March, 1987, St. Paul’s trial attorney estimated a possible liability of $200,000 and Dr. Delaney’s chance of success at trial at 15%. In mid-April 1987, Merryman, the St. Paul adjuster, recommended to her superiors that St. Paul tender its policy limits to settle the ease.
Instead of making known to Delaney and his attorney the assessment of Delaney’s case by its attorney and its adjuster and offering to pay its full $100,000 policy limits so that Delaney could undertake unrestricted settlement negotiations, St. Paul stonewalled. This is so in spite of the fact that plaintiff Ross in May, 1987 offered to settle the case for $125,000.
A thread running through the ease during this entire period was the fact that St. Paul also insured Memorial Hospital, a co-defendant in the case with Delaney. It was obvious that St. Paul’s interest would be served if Ross’ case against both Delaney and the hospital could be settled at one time. On the other hand, it was in Delaney’s interest that the case be settled as soon as possible without having to go to trial.
In letters of July 7 and September 28, Delaney’s attorney urged St. Paul to offer the policy limits or the policy limits plus the $10,000 that Dr. Delaney was willing to pay at that time. Again on October 19, the attorney demanded that St. Paul offer its policy limits.
On November 16, 1987, when Delaney’s son and Delaney’s attorney were in adjuster Merryman’s office seeking settlement, she told them she only had authority to offer $75,000. This was not true since St. Paul had on October 9 authorized payment of the full $100,000. Presumably, St. Paul or Merryman was trying to force Delaney to offer $50,000 toward the settlement offer of $125,000 and thus save itself $25,000. However, before Delaney’s son and attorney left Merryman’s office, she called her *1560superiors who told her to offer the $100,-000. Dr. Delaney died on November 25, 1987.
A letter dated August 20, 1986 written by Dr. Keith Dimond, Dr. Delaney’s physician, to St. Paul’s attorney states:
As you know, I treat Herman Delaney for hypertension, peripheral vascular disease and cerebrovascular disease. He has not asked me to contact you. In fact, I don’t even think he knows I am writing. In the course of the litigation against Dr. Delaney, I’ve seen his psychological health deteriorate. While his blood pressure control has been quite good, this process of litigation is having a profound effect on his overall health and his mental health is inexorably worsening. My sole purpose for contacting you in this regard is to urge that this process of litigation be accomplished as quickly as possible. My only concern in the whole matter is the health of my patient.
St. Paul knew from the inception of this case that Dr. Delaney’s case could not be won. It is common knowledge that when doctors leave a medical instrument or foreign object in a patient’s stomach, juries find in favor of the plaintiff. In March/ April of 1987, St. Paul’s attorney put a value of $200,000 on the case and St. Paul’s adjuster recommended that the company offer its $100,000 policy limits. Had St. Paul offered its $100,000 limits during that period, plaintiffs would have no case.
The majority opinion assumes that Georgia law requires that “an insurer's duty to settle a case within the policy limits arises when the insurer knows, or in the exercise of ordinary care should know, that such a settlement is possible and that its failure to effect a settlement will expose its insured to an unreasonable risk of harm.” 1 The majority then goes on to hold that plaintiffs introduced no competent evidence that shows “St. Paul knew or reasonably should have known that it could have settled the suit for Dr. Delaney’s policy limits (or for the policy limits plus an amount Dr. Delaney had notified St. Paul that he was willing to pay).” 2 The majority’s assumption is not the law of Georgia and its opinion seems to concede that, but the majority nevertheless refuses to certify the question to the Georgia courts.
The opinion at Section III, A.2, first sentence, states: “Georgia law is ambiguous, however, on whether an insured may recover for the insurer’s negligent, as well as bad faith, failure to settle.” In the last sentence the opinion states “We ... assume, as suggested by the 1989 decision in Home Insurance Company, that a negligent, as well as bad faith, failure to settle is actionable in Georgia.”
Then in subsection 3, the opinion states: “Georgia law is also unclear as to whether the insured may recover for the insurer's failure to settle when the injured party never offered to settle within the insured’s policy limits.” Finally, in subsection 5, the majority states: “... we assume, for the sake of argument, that the plaintiffs correctly state Georgia law: when a liability insurer knows or in the exercise of ordinary care should know that a suit against its insured could be settled within the policy limits and that its failure to settle will expose the insured to an unreasonable risk of harm, including emotional distress, the insurer has a duty to effect a settlement within a reasonable time after settlement is possible; if the insurer breaches this duty, it is liable for all damages proximately caused by its breach, including damages caused by a delay in settlement. We have doubts, however, that such a rule of law is justified from a policy standpoint.” (Op. p. 1542)
There are several flaws in the foregoing portions of the majority’s opinion. In the last quoted paragraph the majority makes a totally incorrect assumption of the plaintiffs’ position on the Georgia law. Earlier I have stated the plaintiff’s position in this case.3 None of the references to insurance law relied upon by the majority apply to *1561the facts of this case. The appellant urges that the real question presented by the facts in this case is what duty does a company have when presented with facts that demonstrate that its insured will be found liable to an injured party whose injuries are such that the policy limits will be exceeded if the case goes to trial. The majority answers that by saying the company has no duty until presented with an offer that guarantees settlement of the case.
It is helpful again to emphasize the difference in the view taken by the majority opinion and the position urged by the appellant. In the Summary of the Argument portion of its brief, appellant states: “St. Paul owed a duty of due care, a fiduciary duty of trust and a duty of good faith in adjusting the malpractice claim made against Dr. Delaney. St. Paul owed Dr. Delaney these duties regardless of whether the malpractice claimant, Mr. Ross, made an offer to Dr. Delaney within the doctor’s $100,000 policy limits.” The majority opinion’s opening paragraph states: “The plaintiffs ask us to hold, under Georgia law, that when a liability insurer knows or in the exercise of ordinary care should know that a suit against its insured could be settled within the policy limits and that its failure to settle will expose the insured to an unreasonable risk of harm, including emotional distress, the insurer has a duty to effect a settlement within a reasonable time after settlement is possible; if the insurer breaches this duty, it is liable for all damages proximately caused by its breach.”
Since the majority opinion poses the wrong issues, I do not write in opposition to it. Instead, I write with respect to an insurer’s duty to its insured when the insured is clearly liable to a plaintiff in an amount which exceeds the policy limits. It is of great consequence that St. Paul was in control of all settlement negotiations and had forbidden in its May 29, 1987 letter to Dr. Delaney’s attorney his participation in settlement negotiations, stating: “The Insured and his personal attorney ‘will refrain from making any financial obligations or paying out any money without our authorization. Doing so may result in our not making reimbursement of the payment, even though the cost is covered by the policy.’ ”4
Case Law Establishing a Broader Duty to Settle
Case law from other jurisdictions establishes that the duty to settle is not, as the majority assumes, limited to situations in which the suit could have been settled within the policy limits. The duty to settle arises whenever settlement, whether within the policy limit or in excess of the policy limit, will protect the interests of the insured. As the former Fifth Circuit has recognized, and stating the proposition broadly, “... the insuror must give a consideration to the interest of the insured equal to that consideration given its own interest in the matter, and it must act with good faith in all transactions involving the insured’s interest.”5 Professor Keeton has summarized this principle as follows: “[T]he insurance company must in good faith view the situation as it would if there were no policy limit applicable to the claim.” 6 Finally, as the Third Circuit concluded, “the fairest method of balancing the interest is for the insurer to treat the claim as if it were alone liable for the entire amount.”7
With this general standard in mind, the Second Circuit has articulated various instances in which breach of the duty to settle may be found. Significantly, failure to accept settlement within the policy limits — to which the majority, in this case, refers — is but one example:
Where, because of the likelihood that an excess verdict will be returned, the *1562greater financial risk of the litigation rests on the insured, a finding of bad faith on the part of the insurer may be based on such factors as these:
(1) The failure of the insurer to investigate properly the circumstances of the accident.
(2) The refusal of the insurer to accept a settlement within the limits of the policy.
(3) The failure of the insurer to inform the insured of a compromise offer.
(4) The failure of the insurer to attempt to induce contribution by the insured.8
The fourth factor, failure of the insurer to attempt to induce contribution by the insured, assumes that the duty to settle may arise when settlement within the policy limit is not possible; the option for the insurance company is to inform the insured of a settlement offer above the policy limit and to ascertain whether, given the value of the settlement offer, contribution by the insured would be more advantageous to the insured than litigating.9
An early Tennessee case10 faced the issue of an insurance company’s duty when the defendant was clearly responsible for an accident and the damages exceeded the policy limits, saying:
As to the first question, the defendant insurance company takes the position that until the injured party has offered to settle the ease for an amount within the policy limits, the company is under no legal duty to attempt to effectuate a settlement. It is insisted that until such an offer is made there is no conflict of interests between the company and its insured. It is likewise argued that if the demand is in excess of the policy limits the insurer has no authority to bind the insured by a settlement and therefore cannot be guilty of bad faith in failing to settle. After much research and thought about the matter we find ourselves unable to agree with this position.11
The Tennessee Supreme Court further said, quoting from Southern Fire & Casualty Co. v. Norris, 35 Tenn.App. 657, 668, 250 S.W.2d 785, 790 (1952):
“ * * * The insured surrenders to the insurer the right to investigate and compromise or contest claims knowing that, in event of a claim, the insurer will have its own interests to consider. But an insured also has a right to assume that his interests will not be abandoned merely because the insurer faces the prospect of a full loss under the policy. The relation is one of trust calling for reciprocity of action. The insured owes the duty of full co-operation — the insurer the duty of exercising good faith and diligence in protecting the interests of the insured.” * * * * * *
We are asked to hold as a matter of law that an insurance company cannot be held liable for bad faith for failing to settle a case when there is no demand for settlement ... within their limits of coverage.... We are of the opinion that such is not the law nor should it be so.
It is true that in most of the cases dealing with the problem at hand, there has been an offer to settle for an amount within the policy limits. However, to hold as a matter of law that an insurance company cannot be guilty of bad faith unless it has received an offer of settlement within the policy limits could most *1563certainly lead to inequitable results, see nothing, under such a holding, to prevent an insurance company, in a case where liability is certain and injury great, to simply decline negotiations with the injured party and later assert that there was no offer within the policy limits.12 We
Regrettably, in this case St. Paul callously sat back and did nothing while the elderly Dr. Delaney agonized and writhed and, as his doctor, Dr. Dimond, wrote the company, his “overall health and his mental health [was] inexorably worsening.” Unfortunately, the majority attempts to decide what law Georgia would apply to this case. The court admits that Georgia has sanctioned an insured collecting damages for an insurance company’s tortious failure to settle a case.13 When it faces the ultimate question posed by St. Paul’s bad faith and negligent handling of the settlement of this case, the majority says: “We have doubts, however, that such a rule of law is justified from a policy standpoint.” That flies in the face of the certification procedures which have been practiced over the past twenty years between our court and the Georgia Supreme Court. We have regularly honored the principle of comity by asking that court to decide cases presented to us involving yet undecided Georgia legal questions that we deem to involve policy questions which Georgia’s highest court is best equipped to answer. Lastly, in Part III B. of the opinion, the majority undertakes to decide disputed issues of fact that have never been submitted to a trier of fact.
I respectfully dissent from the majority’s holdings and its failure to certify this case to the Georgia Supreme Court.
. At 1545.
. Id.
.Paragraph two of this dissent.
. R. 4-101-15.
. Liberty Mutual Ins. Co. v. Davis, 412 F.2d 475, 483 (5th Cir. 1969).
. Keeton, “Liability Insurance and Responsibility for Settlement,” 67 Harv.L.Rev. 1136, 1148 (1954).
. Bell v. Commercial Ins. Co. 280 F.2d 514, 515 (3d Cir. 1960).
. Young v. American Casualty Co., 416 F.2d 906 (2d Cir.1969) (footnote omitted); see also Brockstein v. Nationwide Mutual Ins. Co., 417 F.2d 703, 706 (2d Cir.1969) (same).
. See also Rova Farms Resort v. Investors Insurance, 65 N.J. 474, 323 A.2d 495 (1974) ("Any doubt as to the existence of an opportunity to settle within the face amount of the coverage or as to the ability and willingness of the insured to pay any excess required for settlement must be resolved in favor of the insured unless the insurer, by some affirmative evidence, demonstrates there was not only no realistic possibility of settlement within policy limits, but also that the insured would not have contributed to whatever settlement figure above that sum might have been available.").
. State Auto. Ins. Co. of Columbus, Ohio v. Rowland, 221 Tenn. 421, 427 S.W.2d 30 (1968).
. Id. 427 S.W.2d at 33.
. Id. at 33-34.
. Opn. at 1551, citing Davis II, 288 S.E.2d 233 at 238).