Whether or not a lower-tiered excess insurer controlled a $29 million settlement process is a question of fact and not law, the Fifth District Illinois Appellate Court found Jan. 14, reversing and remanding a lower court's dismissal of American International Specialty Line Insurance Co.'s counterclaims against Great American Assurance Co. for bad faith and negligence in failing to settle an underlying claim by 13 injured boilermakers.

The panel also determined that the lower court erred by finding that Great American only has a duty if it is capable of settling the matter within its limits. The panel rejected Great American's reliance on language in several cases indicating that an insurer acts in bad faith only if tendering its policy limits would have settled the claim.

Judge Richard P. Goldenhersh wrote the opinion, which was joined by Presiding Judge Bruce D. Stewart and Judge Thomas M. Welch.