Zurich had issued a policy of automobile public liability insurance to Hartwell which was in effect at the time of the accident which occasioned the lawsuit resulting in the judgment for the McCoys. The accident involved in the primary state court case occurred May 1, when plaintiff Daniel Anthony McCoy, then about six years of age, was riding his bicycle on the sidewalk and crossing an alley.
A truck, owned by Hartwell, driven by Loggins drove out from the alley crossing the sidewalk en route to the street and the boy was run over. The severity of the boy's injuries and suffering need not be detailed here. Suffice it to say that they were extensive and that he will never be able to live a normal life.
The instant suit seeks recovery from defendant Zurich for damages based on the "bad faith" theory, for what plaintiffs allege was Zurich's refusal to settle. In their Complaint plaintiffs state as follows in Paragraphs 6 and The response of the McCoys to Zurich's offer of the policy limits was that Zurich should offer the policy limits plus interest and that plaintiffs would accept such an offer.
Zurich refused on the ground that there was no legal obligation under its contract with the insured to pay statutory interest, such interest being owed only subsequent to judgment and dating back to the filing of the lawsuit. It should here be noted that Zurich filed an offer of Judgment in the primary state court action February 14, , inclusive of "all costs, attorney fees and interest.
Neither of the above offers of judgment was accepted by the McCoys. The Trial Judge on March 28, , at the conclusion of the trial, had made a finding that "as to the question of negligence, the plaintiff has prevailed against both defendants. The Court however made no determination of the amount of damages at that time. Defendant's motion of course is based on Rule 56 which requires that there be no genuine issue as to any material fact.
