We granted certiorari in this case, Fortner v. Grange Mutual Ins. Co. , 294 Ga. App. 671 669 SE2d 658 2008, to consider whether the Court of Appeals properly interpreted the “safe harbor” provision recognized in Cotton States Mut. Ins. Co. v. Brightman , 276 Ga. 683 580 SE2d 519 2003. Because we conclude the Court of Appeals did not, we reverse. In 2003, Cecil Fortner was injured in a car accident caused by Alan Arnsdorff. Arnsdorff had a policy with Grange Mutual Casualty Company with a bodily injury liability limit of $50,000, and his plumbing business had $1 million in liability coverage with Auto Owners Insurance Company. Fortner offered to settle all claims for $50,000 from Grange “contingent upon” Auto Owners’ payment of $750,000. Auto Owners did not respond within the time set forth by Fortner, but Grange responded that it would pay the $50,000 contingent upon Fortner “signing a full release with indemnification language” and dismissing his claim against Arnsdorff with prejudice. Fortner considered this a rejection of his offer and went to trial, where he won a $7 million verdict against Arnsdorff, which was affirmed on appeal. Arnsdorff v. Fortner , 276 Ga. App. 1 622 SE2d 395 2005. Arnsdorff then assigned to Fortner any cause of action he might have against Grange based on its alleged bad faith in failing to settle.
Fortner brought a bad faith claim against Grange, and a jury returned a verdict in favor of Grange. On appeal, Fortner contended that the trial court erred in giving the following charge to the jury: In responding to a settlement demand, which demand is conditional upon the response of another insurance company, an insurance company can offer its policy limits in response to the demand and then let the plaintiff negotiate with the remaining insurers. In that situation, the insurance company would have given equal consideration to its insured’s financial interest and fulfilled its duty to him. And you would return your verdict in favor of the defendant. The divided Court of Appeals found no error in the charge. The majority concluded that the charge was consistent with this Court’s decision in Brightman and “was properly adjusted to the facts of the instant case since Fortner made a settlement demand that was conditional upon the responses of both Grange and Auto Owners.” Fortner , 294 Ga. App. at 672. We conclude, however, that the charge was erroneous, and so we reverse.
