dissenting.
I would reverse, because I believe that there was no evidence from which a jury could properly find that defendant failed to exercise ordinary care in the performance of its contractual duties. The trial court submitted the case to the jury on two allegations: (a) defendant was negligent in failing to attempt to settle the case with the estate to avoid personal excess liability, and (b) defendant failed to analyze and evaluate the case against plaintiff so that a proper settlement offer could have been made. The two issues raise a single question: Was there any evidence that defendant was at fault in failing to settle the claim? Because I believe that the undisputed evidence which was relevant to that issue does not support an inference of negligence, I dissent.
The relationship between plaintiff and defendant arises solely from the contract of insurance. Defendant may be held liable in excess of its policy limits only if it breached its contract with plaintiff. The contractual duty is stated in Maine Bonding v. Centennial Insurance Company, 298 Or 514, 693 P2d 1296 (1985):
“[T]he insurer must use such care as would have been used by an ordinarily prudent insurer with no policy limit applicable to the claim. The insurer is negligent in failing to settle, where an opportunity to settle exists, if in choosing not to settle it would be taking an unreasonable risk — that is, a risk that would involve chances of unfavorable results out of reasonable proportion to the chances of favorable results.” 298 Or at 518-19.
The majority’s statement of facts is incomplete and is not accurate in several respects. These are the facts I believe to be relevant to the issue submitted to the jury:
*164Shortly after the wrongful death action was filed, defendant advised plaintiff that the amount demanded in the complaint was in excess of his policy limits. He was advised that he should retain his own attorney to represent him with respect to potential excess liability. For several years before this action was filed, plaintiff had been under investigation by the Board of Medical Examiners for his prescription practices. It was the opinion of plaintiff and his attorney that a settlement in the wrongful death case would be damaging to plaintiff in that ongoing investigation. Plaintiff maintained throughout the wrongful death action that he was not negligent and, in fact, had presented a strong case before the Oregon Medical Association Professional Assessment Committee, which evaluated the case as one which could be defended successfully. Consequently, neither plaintiff nor his attorney ever put a monetary value on the case or demanded that the matter be settled within the policy limits.
In January, 1983, defendant solicited a settlement demand from the estate, which responded by letter offering to settle the case for $200,000, an amount double the policy limits. Defendant had first evaluated the case as having a value of $30,000 but had subsequently raised that evaluation to $50,000 because of awards by jury verdicts in other cases while the wrongful death case was pending. Pursuant to its internal practices, defendant reevaluated the case every six months and frequently discussed its defensibility with the attorney whom it had hired to represent plaintiff, who believed that the case had a value of between $15,000 and $25,000. He based his opinion on the life expectancy and life productivity of a person with the deceased’s background. He considered that the deceased had been on drugs for several years and had unsuccessfully attempted to withdraw with the help of several physicians, including plaintiff. The estate’s attorney had, in fact, evaluated the case at between $55,000 and $75,000 and testified that he would have recommended to his client that she settle the case for an amount between those figures. That fact was not communicated to defendant. All participants in the litigation either believed that the case was defendable on liability or did not have a jury verdict value near the policy limits. Plaintiff wanted the case defended, not settled.
In summary, plaintiff maintained steadfastly that he *165was not negligent, and the Oregon Medical Association Professional Assessment Committee agreed. Likewise, there is no evidence that the insurer’s monetary evaluation of the case, assuming liability, was mistaken. The evidence the majority relies on to show that the prospects of winning the case grew worse during trial does not alter that conclusion. The estate’s own attorney testified:
“Q Can you explain why you would be willing to recommend settlement in that amount, which was considerably less than the jury awarded in the case of approximately $185,000?
“A Well, the case had its good points and its bad points. And I’m not sure that my world view is always consistent with everybody else’s. I know that some people have a strong reaction to people that use drugs. And it’s not a favorable reaction. At the same token, I think that people are becoming more enlightened, and I had hoped to be able to convince people through the experts that drug addicts, whether it be alcohol or heroin or valium or caffeine, is a form of disease and it deserves good medical care. Somewhere in the middle of those two views is room for compromise. And I felt the case could be compromised if they would, meaning C.N.A., see it at all my way. But I never heard from them, so I understood they never saw it my way. The jury did see it my way.
* * * *
“Q If the offer had been made to settle that we talked about previously in the area that you mentioned during the trial itself up until the verdict came in, would you have recommended to your client that she accept the offer?
“A Well, on that upper end, $75,000, yes, I would have.”
Although the majority says that Eastham v. Oregon Auto. Ins. Co., 273 Or 600, 540 P2d 364 (1975), does not aid defendant, I believe it demonstrates why defendant was entitled to a directed verdict.1 In Eastham, on the day of trial plaintiff offered to settle for an amount more than double the policy limits. The .insurer made no counteroffer. The jury returned a verdict in excess of the policy limits. The court said:
*166“In this case the uncontroverted testimony establishes the maximum and minimum values that the experienced lawyers of the parties placed upon the case at a time before the verdict when they had substantially full information. The record is replete with testimony that when lawyers negotiate they start by putting the most optimistic worth on the case from their client’s point of view, and then modify this evaluation as necessary to a point where the amount is still compatible with their client’s interest. In so doing they sometimes reach a figure which is considered mutually advantageous. If so, the case is settled; if not, it is tried. Plaintiffs lawyer evaluated the case at $12,000 to $14,000. The company’s attorney believed it to be worth $6,000 or $7,000 and testified in the present case that the maximum verdict which reasonably could be expected was $15,000. These amounts must be taken as the reasonable extremes, with the apparent reasonable settlement value probably equidistant between the extremes. * * * We do not believe that, in this posture, the jury could reasonably draw any inference of bad faith from the company’s failure to make a counteroffer. Plaintiffs offer on the day of trial was more than twice that seen by experienced people as the probable settlement value. The company had a $10,000 cushion of its own money between the most optimistic evaluation of plaintiffs case and its policy limits. The company was justified in electing to try the case rather than making the gesture of extending a counteroffer. An insurance company is not required to offer to settle or face an action for bad faith in such a situation. To hold otherwise would mean that almost any case would be submitted where the recovery is in excess of the policy limits.” 273 Or at 608-09.
On rehearing, the court added:
“It is this court’s opinion that it is not possible to determine intelligently the issue of the insurer’s bad faith without consideration of evidence bearing upon the apparent value in settlement of plaintiffs original case against the insured prior to verdict. In the present instance the evidence shows that with full knowledge of all relevant facts as they were subsequently disclosed at trial, everyone, including plaintiffs experienced lawyer, evaluated the case at much less than the policy limits.” 273 Or at 611.
The facts here are parallel. The only offer was to settle at twice the policy limits. The insurer was not bound to counteroffer. When all the facts were disclosed at trial, no one, *167not even plaintiffs attorney, believed that the verdict would exceed the policy limits.
An insurer’s contractual duty is to exercise the care of an ordinary prudent insurer. The fact that we know, with hindsight, that the jury verdict was in excess of the policy limits is not evidence that the insurer was negligent in analyzing and evaluating the case. For the foregoing reasons I believe that defendant was entitled to a directed verdict.
I agree with the majority that the trial court did not err in withdrawing from the consideration of the jury the claims of contributory negligence. My reasoning, however, is based solely on my view of the responsibilities of the parties arising from their legal relationship, which was based on a contract. Neither of the charges of “contributory negligence” alleged by defendant violated any duty that plaintiff had assumed under the contract and could in no way have relieved defendant of its legal obligation to analyze and evaluate the case properly or to settle it within the policy limits under appropriate circumstances.
The majority says that Maine Bonding’s reference to “negligence” rather than “good faith” or “bad faith” changed the applicable legal standard in this kind of case. Maine Bonding merely indicated that the ideas of good or bad faith are misleading and should not be used instead of a “reasonable care” standard. Maine Bonding contributed only a change of terminology, not a change in the standard of care.