Submitted November 12, 2014.
Appeal from United States District Court for the Western District of Missouri - Jefferson City.
For Ben Purscell, Plaintiff - Appellant: Grant Lavalle Davis, Shawn G. Foster, Valley Renshaw, Davis & Bethune, Kansas City, MO.
For Tico Insurance Co., Infinity Assurance Insurance, Company, Defendants - Appellees: John T. Brooks, Charles Andrew Danaher, Peter Klee, Sheppard & Mullin, San Diego, CA; William Clayton Crawford, James Patrick Maloney, Foland & Wickens, Kansas City, MO.
Before BYE, SHEPHERD, and KELLY, Circuit Judges.
BYE, Circuit Judge.
Ben Purscell sued his motor vehicle liability carrier, Infinity Assurance Insurance (Infinity), contending the insurer acted in bad faith in handling claims brought against him by third parties injured in a motor vehicle accident. Purscell alleged Infinity exposed him to excess judgments when it failed to settle the third party claims within his policy limits. The district court granted summary judgment to Infinity, concluding the insurer did not act in bad faith or breach any fiduciary duty it owed to Purscell. See Purscell v. TICO Insurance Co., 959 F.Supp.2d 1195, 1204 (W.D. Mo. 2013). We affirm.
On the evening of May 19, 2006, Purscell's vehicle collided with another vehicle, injuring both of its occupants, Tim and Amy Carr. Amy Priesendorf, a passenger in Purscell's vehicle and one of his co-workers, died as a result of the accident. The circumstances leading up to the collision were somewhat unusual. Earlier that evening, Priesendorf (whom Purscell had only known for a couple of weeks) visited him at his home. She was distraught and drunk. She asked Purscell to give her a ride. He agreed. She directed him to a cemetery, where she visited a friend's grave.
On the return trip to Purscell's home, Priesendorf's behavior became erratic. From the passenger seat, Priesendorf stretched her leg over and put her foot down on the accelerator, on top of Purscell's foot. Purscell told her to stop. She did. Later in the trip, however, Priesendorf unbuckled her seat belt, scooted closer to Purscell, and repeated the erratic behavior. Purscell tried to get his foot out from under hers but was unable to do so. As they approached an intersection with a stop sign, he again told Priesendorf to stop and put his other foot on the brake, but with no effect. Purscell saw the headlights from the Carrs' vehicle and told Priesendorf another car was approaching the intersection. Priesendorf saw the other vehicle, but continued to press down on the accelerator.
Purscell estimated his vehicle reached a speed as high as seventy-five miles per hour before entering the intersection. Purscell swerved left to avoid an accident, but the two vehicles still collided. Both vehicles overturned. The Carrs' vehicle caught fire. Priesendorf was thrown from Purscell's vehicle and pronounced dead at the scene. Tim Carr was seriously injured and airlifted to a hospital. Amy Carr also suffered injuries and was taken by ambulance to a hospital. Purscell was injured as well.
Following the accident, Purscell learned the gravesite Priesendorf visited on the night of the collision belonged to a person who had been killed in an accident while Priesendorf was driving drunk. He also learned Priesendorf had been hospitalized for attempting suicide following her friend's death, and that none of her other ...