Punishing a Lawyer for His Mere Refusal to Settle

lawyer contended he was improperly punished for his mere refusal to settle, citing Triplett v. Farmers Ins. Exchange (1994) 24 Cal. App. 4th 1415, 1422. The defendant insurer in Triplett was sanctioned for refusing to settle an action because the trial court felt the insurer's conduct in standing firm on its settlement offer, which the judge believed was unreasonably low, constituted bad faith. In reversing that order, the appellate court held the insurer could not be punished for insisting on its constitutional right to a jury trial in lieu of settlement even if its motives were improper. (Id. at p. 1422). The court concluded by stating that Code of Civil Procedure section 128.5 "cannot be applied where the only action or tactic is defendant's decision to choose trial, rather than settlement, regardless of what subjectively motivated that choice. There is no suggestion here that Farmers impeded the progress of the litigation, or that it refused to participate in pretrial discovery, or that it failed to appear at any court-ordered conferences, or that it took any tactic or action other than to conduct a vigorous defense of the action and require plaintiff to prove her case. . . ." (24 Cal. App. 4th at p. 1425).