the primary insurer (as opposed to the judgment creditor) offering terms within its limits would have resulted in the case settling.
Nevertheless, proving proximate cause in circumstances in which the exception applies presents some difficulties, which in this case, are insurmountable. As we have earlier indicated, a firm offer from a judgment creditor to settle within a primary insurer's policy limits is essentially presumptive on the issue of proximate cause, since it is assumed that if the primary insurer tendered the amount that the judgment creditor has indicated would settle the case, then the case would have settled. Under the exception, however, the plaintiff must affirmatively show that had the primary insurer offered terms of settlement within its limits, the judgment creditor, who had not otherwise so indicated, would ultimately have accepted the offer.
Yet, paradoxically, although the exception may benefit an excess carrier's bad faith action by expanding the scope of the primary carrier's obligations to pursue settlement, it works to the detriment of the excess carrier on the issue of proximate cause. Since the exception applies only where the probability of an adverse finding of liability is considerable and the amount of probable damages greatly exceeds primary coverage, the likelihood that a settlement offer within primary limits would be acceptable to a judgment creditor would necessarily be drastically reduced. That fact leads us to question the efficacy of the exception in providing relief in the extreme case.
Notwithstanding that problem of application, even if we assume that the circumstances in this case would have obligated Home to initiate settlement offers within its limits, we find that Ranger has failed sufficiently to establish that even an offer from Home of its limit of $ 500,000 would have been accepted by either the tort plaintiff or ADM. This finding is based on many of the considerations we have already discussed.
During the first settlement phase we have identified, it was the plaintiff who ultimately rejected the settlement package that the defendants had put together which involved a contribution from Home within its limits. Regarding the second phase, which immediately followed the rejection of the settlement package, Ranger has failed to adduce any positive evidence that an offer of Home's limits, either as an individual offer or as part of a joint package, would have been favorably entertained by the tort plaintiff. What we know during this period is that the amount that the tort plaintiff wanted from all of the defendants to settle the case was $ 1,650,000, as reflected by its settlement with ADM. That figure clearly exceeds Home's policy limits. Further, the evidence is undisputed that the tort plaintiff's attorney would not consider any individual offers to settle only a portion of the case against a particular defendant. Tr. 142-145, 164. Indeed, there is evidence that Holley had tried to get the tort plaintiff's attorney to hold off settling with ADM so that he could pursue negotiations separately and then the plaintiff could preserve his cause of action against ADM. Ex. 11. The plaintiff refused. Finally, although Home conceivably could have offered its limits to ADM as a contribution towards ADM's settlement with the tort plaintiff, there is absolutely no evidence tending to show that $ 500,000 would have been acceptable to ADM at that time. In fact, the evidence suggests that ADM clearly wanted to exclude Mid-States and Corrigan from the settlement, finding it more advantageous to proceed as plaintiff against those two defendants in the contribution action. Regarding the third and fourth phases of settlement, we have already discussed at length why the evidence has failed to show that, even if Home had initiated an offer of its $ 500,000 policy limits -- or later, $ 550,000 including the amount Ranger was willing to contribute -- that ADM would have accepted the offer. Ranger has provided no evidence other than Montgomery's proposal, which we have discounted, regarding the position that ADM or the guarantee fund for ADM's primary carrier might have had with respect to settlement. In the absence of any additional evidence, to decide that the contribution action would have settled with ADM for a figure within Home's policy limits, would be pure speculation. The simple fact, asserted by Ranger, that nothing stopped Home from offering its limits during all of these periods, therefore does not change our conclusion that the evidence has failed to establish that the policy limits would have been accepted had they been offered.
Accordingly, Ranger has failed to establish that any alleged negligence or bad faith on the part of Home was the proximate cause of Ranger's liability for the amount of the judgment against Mid-States in excess of Home's policy limits. Because Ranger's failure to establish proximate cause is dispositive on the issue of liability, we need not make any additional findings or conclusions regarding the reasonableness of Home's conduct. We enter judgment in favor of Home on Counts II and III of Ranger's complaint. It is so ordered.