Jeffrey MEIXELL, Plaintiff-Appellant, v. SUPERIOR INSURANCE COMPANY, Defendant-Appellee, 230 F.3d 335

BAUER, Circuit Judge. On October 22, 1999, the district court dismissed Jeffrey MeixelPs amended complaint with prejudice. Meixell appeals contending that the complaint sufficiently alleged that Superior Insurance Company engaged in bad faith for refusing to settle. On July 5,1995, Meixell was a passenger in Terry Whitworth’s vehicle when it collided with a utility pole. No other vehicles were involved. The accident rendered Meixell a quadriplegic and caused him to incur medical bills in excess of the insurance policy limits.

On August 30, 1995, Meixell sent his medical bills and records to Whitworth’s insurance, Superior. After review of the facts surrounding the accident and Meixell’s injuries and damages, Superior sent a draft of $20,000 to Meixell along with a general release of all-claims. On September 21, 1995, Mei-xell’s attorney informed Superior that they would release Whitworth in exchange for the policy limits and a covenant not to sue. Meixell refused to give a general release to potential third parties. On October 12, 1995, Superior rejected the covenant not to sue and asked for the return of the settlement draft.

The opportunity to settle was not communicated to Whitworth. On January 30, 1996, an attorney retained by Superior agreed to tender the $20,000 in exchange for the covenant not to sue Whitworth, withdrawing its demand for a general release. Meixell rejected the offer and filed suit against Whitworth, the Township of New Berlin, and Sangamon County on March 29, 1996. Two years later, New Berlin and Sangamon County settled for $1,400,000 in return for a covenant not to sue.

On December 1, 1998, a jury returned a verdict against Whitworth for $4,537,791.38 and judgment was entered on the jury verdict for $3,137,791.28 after reduction for the monies paid by the codefendants. On December 14, 1998, Meixell was assigned this cause of action against Superi- or by Whitworth and filed suit based upon Illinois common law for breach of the duty of good faith owed by an insurer to its insured. The district court dismissed his amended complaint with prejudice. Mei-xell now appeals. Motions to dismiss are reviewed de novo.

Under Illinois law there is a duty on the part of the insurer to give at least equal consideration to the insured’s interests as it’s own where the insured is a defendant in a suit in which the policy limits may be exceeded. Adduci v. Vigilant Insurance Co. Inc., 98 Ill.App.3d 472, 476, 53 Ill.Dec. 854, 424 N.E.2d 645 (1981). Where the insurer fails to settle resulting in an excess judgment due to fraud, negligence or bad faith, the duty is breached. Id. The insurer may then be held liable for the full amount of the judgment irrespective of the policy limits. Id.

Meixell must sufficiently show a breach of duty and demonstrate that the breach was the legal cause of the harm to the insured. Id. The court in Phelan v. State Farm Ins., 114 Ill.App.3d 96, 104, 69 Ill.Dec. 861, 448 N.E.2d 579 (1983), determined that the plaintiff must allege sufficient facts to demonstrate why the offer of settlement after the deadline could not have been accepted. In dismissing the complaint, the district court found that Meixell could not show that Superior’s conduct proximately caused the excess verdict.

Meixell’s argument is that Superior breached its duty when it failed to convey his counteroffer to settle for the $20,000, the policy limits, and the covenant not to sue to Whitworth. Because Superi- or rejected the offer to settle, Meixell believes that bad faith was demonstrated. Three months later however, Superior did offer to settle for the policy limits. When an insurance company offers to settle and is refused for no reason, .it does not constitute bad faith. Without a showing of bad faith Meixell cannot state a valid cause of action on that basis. Brocato v. Prairie State Farmers Ins.

Assoc., 166 Ill.App.3d 986, 117 Ill.Dec. 849, 520 N.E.2d 1200 (1988). In Adduci the plaintiff rejected a settlement offer because it came 40 days after their self-imposed deadline. Adduci, 53 Ill.Dec. 854, 424 N.E.2d at 647. The court found that these allegations were insufficient as a matter of law to demonstrate that the Insurer acted in bad faith and breached its duty to the insured. Id. While Superior initially rejected Meixell’s offer in October, they returned three months later with- an offer to settle. Mei-xell rejected it.

Meixell offers no explanation as to why he could not accept the offer of settlement or how he would be prejudiced if he had accepted the offer. Meixell claims that once he returned the settlement draft on November 9, 1995, negotiations ceased. At no time did Meixell’s attorney establish a timeline for the settlement negotiations. Superior believed that negotiations were ongoing and finally offered to settle on Meixell’s terms. It was less than two months since their last exchange, and before Meixell filed suit. Finally, Meixell has not established that Superior failed to protect Whitworth’s interests.

Superior’s conditional offer of the policy limits and a general release was in the best interests of Whitworth. By responding with a counteroffer, Meixell demonstrated that he believed the negotiation process was ongoing. Although Meixell did not like the initial terms of the offer or that Superior at first rejected his offer, at no time was Whitworth harmed by Superi- or’s actions. Meixell’s failure to present evidence that Superior placed its interests above Whitworth’s left the district court with no other option than to dismiss the complaint. Superior can not be accused of bad faith for failing to settle.

The allegations of the complaint do not show why the offer to settle was not accepted on January 30, 1996 or that Superior failed to protect Whitworth’s interests. The district court correctly dismissed the amended complaint with prejudice. Affirmed.