concurring.
I concur in the affirmance of the appeal only because I agree with what the majority calls the “alternative way of looking at the problem.” I specifically disagree with what the majority says about the correctness of the trial court’s submission of the case to the jury on the primary ground discussed.
ORS 746.230(1) (f) imposes on insurers the obligation to attempt, “in good faith, to promptly and equitably settle claims in which liability has become reasonably clear.”
The majority notes that plaintiffs’ liability for the accident was reasonably clear. 76 Or App at 269. Being under a duty promptly and equitably to settle the claim, defendant made advance payments to compensate for Ruhle’s injury. The argument inherent in the position plaintiffs take is that, had the insurer not paid in advance, the injured parties would have settled for $100,000. That argument necessarily assumes that the insurer was negligent, because by paying in advance, it acted unreasonably to cause the injured third parties to demand more than they otherwise would have accepted. That kind of claim is at least novel. To allow liability to be imposed under these facts will encourage insurers not to make advance payments in furtherance of a prompt settlement. This is clearly inconsistent with the legislative policy expressed in ORS 18.500 et seq and ORS 746.230. It seems strange to me that an insurer who makes advance payments, presumably to try to keep the case and the insured out of court, can be said to be at fault with respect to the insured. The argument could as easily be made that the insurer would be negligent in not making advance payments, thus forcing the case into litigation. Had this insurer paid nothing in advance but offered its $100,000 in settlement, presumably the case would turn out differently. Because the insurer paid in advance, it comes out worse than had it taken the kind of hard-nosed attitude for which insurers are often criticized. I believe that the premise of this claim, i.e., negligently caused greed, is not one the law should recognize and wish to disassociate myself from any implication in the majority opinion that such a theory is viable.
Rossman and Newman, JJ., join in this concurrence.