concurring specially.
I concur in the majority’s conclusion that there was evidence to support the jury’s verdict finding Cotton States negligently failed to settle the underlying suit by James Brightman within the $300,000 limit of the policy it issued to Lynn Martin.
The evidence at trial was contradictory as to whether Martin opposed any settlement of the underlying suit. There was evidence that Martin and Gregory Gumbo counterclaimed against Brightman in the underlying suit for injuries they suffered, that Martin told Cotton States she believed Brightman was the sole cause of the accident, and that prior to the nonbinding arbitration resulting in a $2,000,000 award to Brightman, Martin adamantly opposed any settlement. On the other hand, Martin gave contradictory testimony that she did not oppose settlement, that even before the nonbinding arbitration she wanted Cotton States to settle, and that it was always her intention to settle. Accordingly, there was evidence from which the jury could have concluded that Martin did not oppose the settlement, and that Cotton States negligently failed to settle the case for the $300,000 *457policy limit when Brightman unconditionally offered to settle for that amount in January 1994 prior to the nonbinding arbitration. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267 (416 SE2d 274) (1992); Great American Ins. Co. v. Exum, 123 Ga. App. 515 (181 SE2d 704) (1971).
Decided June 10, 2002 Reconsideration denied July 11, 2002 Hawkins & Parnell, Thomas G. Tidwell, H. Lane Young II, Christian G. Henry, Forbes & Bowman, Morton G. Forbes, Scot V. Pool, for appellant. Hudson, Montgomery & Kalivoda, David R. Montgomery, Kenneth Kalivoda, for appellee.I disagree with the majority’s conclusion that the jury could have found Cotton States negligent for failing to settle when Brightman made a second offer to settle in January 1995 (after the nonbinding arbitration) for the $300,000 policy limit on the condition that State Farm (Cumbo’s insurer) also pay its $100,000 policy limit. It is undisputed that State Farm refused to pay its $100,000 policy limit and that Cotton States had no control over State Farm’s refusal. Since Cotton States had no control over the unsatisfied condition imposed by Brightman in the January 1995 offer to settle, nothing it did or failed to do was a proximate cause of the failure to settle. An offer to settle on a condition over which the insurer has no control cannot be the basis for a claim that the insurer negligently failed to settle. 7C Appleman, Insurance Law and Practice, § 4711, p. 376.
I also disagree with the majority’s unqualified statement that evidence that Martin opposed settlement cannot operate as a bar to the suit against Cotton States because Cotton States had the right under its policy to settle without Martin’s consent. In this case, there was evidence that Martin was not opposed to settlement when Brightman made the unconditional offer to settle in January 1994. However, where the uncontradicted facts show that an insured fully informed of the progress of settlement negotiations and the risk involved adamantly opposes settlement and insists that the suit be tried, this constitutes informed acquiescence in the refusal to settle and bars a claim by the insured that the insurer is liable for an excess verdict because it failed to accord the insured the same consideration it gave to its own interests. See Govt. Employees Ins. Co. v. Gingold, 249 Ga. 156, 158-159 (288 SE2d 557) (1982), citing Eklund v. Safeco Ins. Co., 41 Colo. App. 96 (579 P2d 1185) (1978).