The Appeals Court has affirmed a lower court’s ruling that a professional liability insurer was fully within its rights when it settled a med mal verdict over the objections of its insured. In an unpublished opinion construing New Hampshire law, the court ruled in Johnson v. ProSelect Ins. Co., No. 17-P-109 (Mass. App. Ct. Dec. 12, 2017) that there was no viable claim for breach of the duty of good faith and fair dealing implied in the insurance contract because the policy language gave ProSelect the right to settle the case postverdict without Johnson’s consent. The court declared that “While Johnson correctly asserts that New Hampshire recognizes an implied covenant of good faith and fair dealing in all contracts, including insurance policies, it has not recognized a breach of the implied covenant where a party merely exercises a right expressly granted under an enforceable contract.” Under the circumstances, the court found that the insurer was permitted to settle after the verdict and was not required to take an appeal. Tory Weigand argued the appeal for ProSelect.
See article published in Law360