Earle v. Cobb

proceed proper in the forum Kentucky Section 116 of the He can still Constitu- tion gives authority exclusive to the Su- he so chooses.

preme discipline Court of the members accept decision of this Court to It is the legal profession to an pursuant appropriate transfer, but decline review. Stapleton, rule. See Ratterman v. also Inquiry 371 S.W.2d 939 All concur. responsibility Commission has the to con- legal sider charges against members of the 18, November 2004. Entered: profession have rales of who violated the E, Joseph Lambert /s/ professional That conduct. Commission Chief Justice authority also has the com- dismiss

plaints. Bar counsel has the responsibility investigating prosecuting all disci-

plinary matters. SCR 3.155. case, Commission,

In this Inquiry on counsel,

the recommendation of bar de-

clined, investigation, without to consider complaint filed. EARLE, Appellant, Bonita complaint A bar an individual the means which the attention

Inquiry brought possi Commission is to a COBB and Indiana Insurance Alice S. ble violation of the rules of professional Company, Appellees. conduct and not method individual No. 2000-SC-0818-DG. relief or remedy specific complaint. for a A disciplinary involving matter is one Supreme Kentucky. Court of investigative process KBA between the 16, Dec. lawyer, not an pro adversarial ceeding. 593, Stump, Ky., Ky. re Rehearing Denied March (1938). Here, 114 S.W.2d 1094 Com mission investiga declined authorize an

tion and the complaint. dismissed There

is no permitting rale an appeal of that

decision. Consequently, has no Woodard

standing to appeal this Court. persuaded by

We are the decisions of jurisdictions

similar matters in other which

have dismissed similar complaints because

of a standing lack of of a the absence

specific allowing an appeal. rule See Bar Georgia,

Scanlon v. State 264 Ga. (1994), 443 S.E.2d Binns v. accord Overseers,

Bd. Bar 343 N.E.2d 868 (Mass.1976).

Here, sought of his Woodard redress

alleged grievances in wrong forum. Breen, Kerry Morgan, Bowling

Mike S. Green, appellant. for Coleman, H. Eric Allen Hamil- Reford ton, Hess, Lochmiller Bond & Coleman Elizabethtown, for appellee Alice S. Cobb. Douglas Myers, Jonathan Sweet- W. W. en, Lackey, Myers, Deatherage, Jack N. appellee Lackey, Hopkinsville, for Self & Company. Indiana Insurance the Court Chief Justice Opinion of LAMBERT. presented is whether

The issue (UIM) must carrier underinsured it chooses at trial when be identified by means subrogation rights preserve its All procedure of the set forth Coots (the procedure”). Ins. state Co.1 “Coots should carrier conclude the UIM We it so identified as because contract party by of its named as a virtue subroga it chose its and because to retain payment rights by tion substitution of its carrier. that of the insurance Appeals As the trial court and the Court otherwise, was tried and the case held and parties, all real we reverse without for a trial. remand new 17, 1998, Boni- February Appellant, On Cobb, Earle, were Appellee, Alice ta and accident in an automobile involved County. a result of Muhlenberg As sought accident, injured. Earle was She from recovery Appellee Cobb carrier, Indiana Insur- Appellee her UIM (Indiana Insurance). Company ance ex- sought for medical damages Earle wages, and suffer- pain lost penses, a cross-claim ing. Indiana Insurance filed indemnity. against Cobb The Coots codified at KRS 304.39-320. statutorily adopted procedure has been Prior to In its appealed Appeals. Cobb’s the Court Company, Hartford Insurance of- opinion, Appeals the Court of affirmed the $25,000 limit fered its to Earle as holding trial court the interest full of her claims against settlement Cobb. participation of Indiana Insurance was sum, willing Earle was to accept this but properly jury. Earle withheld the right, as was its the UIM Indiana discretionary by granted was review this Insurance, preserve subroga- elected to its Court. right against tion using Cobb the Coots provides, part, CR 17.01 “Ev procedure substituting of its payment for ery prosecuted action shall be the name carrier) (liability proposed Hartford’s of party Nothing the real interest.... $25,000 Thus, settlement. Cobb was herein, however, abrogate shall or take released and she a party remained defen- away an individual’s In right sue.”2 the dant. bar, at Appellee case Indiana Insurance trial, For the purposes of the court or- party was a defendant in trial the court dered Earle’s claims Indiana In- and was allowed to in all participate pre for surance UIM benefits to be determined trial, trial proceedings discovery.3 and At jury after the rendered a verdict. The however, it was not identified and the case trial court also held that the existence of presented only parties was as the were the coverage provided by Indiana Earle, defendant, plaintiff, the and the Insurance could not be revealed to the fundamentally Cobb. a trial Such is mis Thus,

jury. Indiana Insurance was not leading jury deprives to the and it a plain party, identified as a participate did not at try tiff of the her case the agreed and be bound the party she chooses.4 However, verdict. Indiana Insurance did defend participating in pretrial motions reasons, policy For sound evidence short, discovery. and In the case was of insurance to culpability show is Cobb, tried to the as Earle v. and However, excluded. where direct con nothing more was revealed. tractual exists between a relationship compa and a defendant insurance During deliberations, its the asked ny no such is In warranted. Wheel judge the trial following question: “Is Creekmore,5 explained er v. we this propo insurance involved coming or is it from Ms. sition as follows: judge Cobb?” The trial declined to an- jurors’ question. swer the Thereafter a company was fact a so, verdict was party properly returned and Earle was and think we because awarded for pain suffering, and it had a obligation direct contractual $500.00 past bills, for medical company $500.00 Mrs. Wheeler. Since the $500.00 wages. Judgment for lost party actively represented by entered and was appealed thereon. Earle and Cobb cross- counsel we think the was entitled to ery, strategically identity CR 17.01. and later conceal its King at trial. See v. State Farm Mut. Auto. party 3. A who undertakes defense of case 294-96, Md.App. Ins. 850 A.2d purposes. and avoids default is a all for (2004). 434-436 Richardson, Ky., Stuart 407 S.W.2d 716 Cf. (1966) (holding real interest one 4. CR 17.01. upon entitled to the benefits of action thereof). successful termination One cannot 469 S.W.2d 559 purposes be a of motion discov defendant, matter, know instant compa- that fact to have the personal right has no corporation, ny’s counsel identified. Otherwise Further, privacy. unsubstantiated speculate would left to as Farm that its disclosure belief State represented by attorney par- an adversely affect would the defendant had ticipating appar- the trial who insufficient jury’s verdict furnishes parties. connection ent with justification withholding from the opinion It is our that the considerations jury, general from the State public, rule prompted which have identity as the defendant Farm’s ordinary liability insurance in mention per lack se public trial. The case must automobile being to in identi- the carrier UM/UIM yield in cases [UM] uninsured-motorist trial at which the insured’s fied at a procedural desirability letting the of to the are deter- damages, policy, under parties know to the the who are the to tort cases is applicable mined rules litigation uninsured motorist where the joining, permissibility as shown the actively in participate carrier elects to brought by in an the defendants action (Citations omitted). trial.6 the insured, the tortfeasor and UM/ Indeed, po- Farm’s UIM carrier. State coverage, While Wheeler addressed UM that from sition here is different Ins. that we held Coots v. Allstate Co. directly any is sued insurer be coverage and UIM should treated UM that of any or from breach of its similarly as the and intent their purpose corporation “deep pocket” apparently is coverages similar.7 for breach of contract its is sued Kentucky recognizing is alone in circuit promisee. hold that We bring of a a contract claim right in imposing court its discretion abused or against his UIM carrier and have her this informa- partial public blackout on (citations omitted).10 as that UIM identified such at carrier tion. reasoning employed The in some trial.8 Prejudice being to a carrier UM/UIM jurisdictions allowing identification of party as a has been considered identified to the is well UIM or UM carriers any the contrac- insignificant, and event Farm, in King v. State Mut. relationship articulated tual and full disclosure must prevail.11 Supreme of Florida Auto. Ins. Co.9: Court such, joined carrier as de- 563. when the is 6. Id. at fendant). S.W.2d at 7. 853 903. 298-99, Md.App. 9. at A.2d at 435. 157 850 Chambers, 279, E.g., v. 657 P.2d 285 8. Lima (Utah 1982) intervening (identity of 298-99, A.2d King, Md.App. at 850 157 jury); company should known to be made v. State ex rel. State Mut. Auto. Ins. Co. Farm 107, 107, Canady, 197 475 S.E.2d 113 W.Va. (noting magistrate judge 11. Id. at n. 6 federal (1996) ("[T]he jury to be aware of is entitled significant” "not considered identity”); carrier's the uninsured motorist denying the motion in limine when carrier’s 38, McQuery, 736 Tucker v. 107 Ohio Misc.2d identity relying seeking suppress on its 574, ("[J]urors (1999) 576 have the N.E.2d Allstate, Farley 733 A.2d 1014 v. Md. know the real in interest who Miller, Allstate v. 315 Md. is”); v. Gen. Ins. 803 So.2d Geico Lamz Lotkin, (1989); Connolly (Fla.2001) See A.2d 1268 also (holding petitioners enti- are (D.Md.2000)). 2000 WL 1508258 to have UIM carrier identified tled their recently sively party. has held in v. Peralta12 We denounced this Medina liable identify that a trial court’s failure to practice in Coots: properly joined UM7UIM no more reason to create a There is per carrier to be se reversible error.13 by substituting fiction the name of legal cases, foregoing brought As Earle the tortfeasor for the UIM when against direct action her UIM carrier the carrier alone is the real and Cobb. The claim Cobb was cases, than there is based on and the claim dealing with reason to do so when UM the UIM carrier was based on its contrac- coverage. permitting The issue of “le undertaking. analyzed by tual As gal employed fiction” to be has been laid Court, danger Florida not naming in uninsured motorist claims rest Indiana Insurance at trial is that the action which involve direct “speculate left to about the exact role of Creekmore, UM carrier Wheeler v. lawsuit, plaintiffs carrier in perpetuat- Ky., 469 Underin- ”14 ing the ‘charades in trials.’ The note sured and uninsured carriers should from the verifies this. As reiterated similarly, -purpose treated as their Wheeler;15 Medina, and in King and coverage the intent their similar.18 is full outweighs disclosure added). (emphasis prejudice that Indiana might Insurance ex- True, In our recent decision in we held perience. that when a used the proce- Coots Appellant argues also that it im is dure, the tortfeasor is released from liabili- proper to maintain legal fiction of per ty plaintiff.19 Although to the the tortfea- mitting the partici UIM carrier to either indemnity sor remains liable to the pate idly by or sit and allow the tortfeasor UIM, only the UIM then becomes the real thereby defend at hiding the iden party potential liability plain- with to the tity of party. a bona fide Coots criticized Precedent, tiff. parity, and fairness de- “legal this fiction” of substituting the name mand that put this Court an end to cha- of the tortfeasor for the UIM carrier.16 fictions, rades and legal and treat UIM The basis for the criticism was enhanced Therefore, and carriers the UM same. we with our decision in True v. Raines where identify hold that the failure to to the by the tortfeasor’s party a named defendant at trial that is totally is extinguished pro when the Coots plaintiffs also the UIM carrier to be re- cedure is only undertaken.17 When versible error. identified, tortfeasor is pres fictitious respect Appellees’ argument ence appears trial instead of the With bona Moreover, fide that KRE 411 party. practice prevent when that would UIM identifi- followed, cation, only contingent one with there is rule of exclusion of secondary liability by subroga showing coverage means of evidence of- presented solely tion is purpose, proof and exclu- fered “for another such as (Fla. 1999). 12. 724 So.2d 1188 16. 853 S.W.2d at 903.

13. Id. at 1189. (2003). 17. 99 S.W.3d v. Geico Gen. Ins. 803 So.2d Lamz Coots, 853 S.W.2d at 903. (Fla.2001). 15. 469 S.W.2d 559 19. 99 S.W.3d at 448. jurors control, operate and most motor agency, ownership, compulsory or or bias or

prejudice of a witness.”20 Whether Ms. vehicles. Cobb had insurance is not at issue. insurance, jurors are made paying Indiana Insurance is a defendant to correlation between aware of the direct upon this action the contractual rela- based losses, in- especially since premiums tionship Appellant between and Indiana companies protest advertise to surance Insurance, her UIM carrier. As stated Today liability insurance is jury awards. hereinabove, when Indiana Insurance in- jurors likely assume insur- prevalent, procedure voked the it should have Coots involved in vehicular accidents. ance is jury. been identified as a Prejudice longer presumed should no merely because insurance is mentioned. reasons, forgoing For the we reverse the against mentioning When the rule insur- Appeals Court of and remand to the trial originated, people ance most neither proceedings court for consistent with this motor vehicles and operated owned nor opinion. insurance was not common.

GRAVES, STUMBO, all, has a direct action After Louisiana WINTERSHEIMER, JJ., may companies concur. statute which insurance along with the defen- be named as GRAVES, separate concurring J. files a yet. sky dant and the has not fallen opinion. COOPER, Justice, dissenting. COOPER, J., by separate dissents this holds Today, majority Court JOHNSTONE, J., opinion joins. in which plain- a deny that it is to reversible error KELLER, J., and would affirm dissents tiff in a of a vehicu- arising tort action out Appeals the Court of accordance with lar accident the to inform the legal analysis contained Justice by of policy that the defendant is covered a opinion, but does dissenting COOPER’S that decision liability insurance. Because join opinion strongly that he because of common law deci- abrogates generations disagrees with the dicta contained therein contrary every in this and sions to the “seriously majority opinion mis- jurisdiction in the States save other United misrepresented stated the hold- and/or (Florida), I dissent. one ings” precedents of in furtherance of an “anti-business, alleged anti-insurance” I. FACTS. agenda of this Court. 17, 1998, Earle was February On Bonita injured collided with when her automobile GRAVES, Justice, concurring. by Al- operated an automobile owned and Cobb, I majority I concur with the because ice Cobb. a retired schoolteach- S. er, lot upon exiting high parking it would be a fraud a school believe to yield right-of-way not to let them know the entire truth. when she failed Earle’s vehicle. The trial court ruled inquiry by concerning The direct of a com- was the sole cause pervasive insurance reveals there is Cobb’s collision, pursued and that issue is not monality concerning automobile insurance insured Muhlenberg County, Kentucky. appeal. We on this Cobb was issued the Hartford liability in a insurance is of insurance live state where 20. KRE 411. (“Hartford”) any payment for such with lia- reimbursed Cobb Company

Insurance scenario, the real $25,000 In that Cobb was per person made. bility coverage limits of any judg respect in interest with $50,000 per accident. KRS 304.39- Earle in 110(l)(a)(l). in tort rendered favor of ment by policy Earle was insured $25,000. of excess of insurance issued Indiana Insurance (“Indiana”) Company with underinsured (not Indiana) Prior filed Cobb (UIM) motorist limits of coverage in limine to bifurcate the issue of motion 304.39-320(2). $200,000. KRS Earle Indiana’s liability her tort from the issue of brought against an action in tort Cobb liability logic to Earle. The of contractual against in contract Indiana Insurance. inescapable; her motion is for if the against Indiana filed a cross-claim Cobb that Indiana was an undeñnsured knew indemnity any might for it amounts they ipso would facto required to under insurance con- pay its by policy know that Cobb insured negli- tract with Earle because of Cobb’s though undeñnsured insurance — gence. in Earle’s The trial court sustained view. insurer, Hartford, motion to bifurcate and ruled that Cobb’s Cobb’s pay offered $25,000 contractual claim Indiana Earle Earle’s its limit to settle her post “shall be handled verdict.” The trial claim Cobb. Pursuant to Coots v. prohibited court’s order also Indiana from Allstate Ins. 902- S.W.2d participating any deposi- in the trial or (1993),1 $25,000 Indiana substituted might tions that be used at trial. In com- money its own for Hartford’s settlement order, pliance attorney with this Indiana’s accepted offer. Earle Hartford’s settle participate any did not in the trial $25,000, ment offer and Indiana’s pre thus respect any questions did not ask cluding recovery by additional Earle during pretrial the medical witnesses their Raines, Ky., Cobb. True v. depositions. However, money Indiana’s substitution of its During deliberating their the course preserved subrogation Hartford’s its claim verdict, Judge Jernigan sent Coots, Id.; against Cobb. 853 S.W.2d or is inquiring, note “Is insurance involved settlement, 902. After the Earle had a coming (Emphasis it Ms. Cobb?” from right any judgment contractual to collect added.) judge appropriately replied The $25,000 Indiana, in excess of from Indiana question. that he could not answer the indemnity against had a of Cobb for awarding The returned a verdict any such it required pay sums was to for pain suffering, Earle and $500 $500 Earle, personally and Cobb thus remained bills, wages, for a medical and for lost $500 any payable hable for amounts to Earle $1,500. total of The trial court entered $25,000. Assuming excess of was Cobb with judgment against Cobb accordance pay any judg solvent and able to verdict, excess not asked for a and Earle has (and suggests ment no one in this case grounds trial on that the verdict was new otherwise), Indiana’s role in the case already set- inadequate. Since Earle had $25,000, merely that of a conduit—Indiana would with and since the tled Cobb pay any part judgment against Earle of a of Hart- verdict did not exceed the amount $25,000 limits, liability policy that exceeded and would be the verdict and Cobb ford’s procedure. 1. This accident occurred before the 1998 that codified the Coots 304.39-320(3), (4) (5) amendment of KRS and Glen, Annotation, Admissi- generally Indiana and relieved J.B. judgment exonerated Evidence, Propriety and and bility any indemnity from liabili- potential Cobb of Ef- Statements, Comments, Questions, ty. fect of Etc., Tending to Show that Defendant Injury or Death Action Carries Personal II. PREJUDICE. (1949 Insurance, 4 A.L.R.2d 761 Liability majority of this Court now reverses (citing literally thousands Supp.2004) and remands this case for a new cases). cases, however, of Of all of those holding pre- that it reversible error to colorfully or more ex- none has better informing that clude Earle exposing effect of plained prejudicial own she had sued both Cobb and her jurors information than did our to such carrier, thereby also in- underinsurance court in Furniture predecessor Star Co. (1) forming that was cov- Cobb Holland, 617, 117 Ky. S.W.2d 603 insurance, by liability ered of policy (1938): that verdict rendered Cobb beyond the It would be difficult—even or both insurance paid would be either conclude that power overcoming of —to Ante, course, companies. at 261. Of question such of insur- reference Indiana can inform that Cobb ance did not have the desired effect to any money must reimburse Indiana for coating, give the case “insurance” required pay that Indiana is Earle. per- sprinkle it with an “insurance” That, however, prej- will not eliminate the in nu- of we have said fume—all which stemming jury’s udice to from the Cobb to influence merous cases was calculated knowledge policy covered she is verdict, arriving at its both And, course, insurance. negligence, as upon culpable the issue of majority’s holding apply since the will well as the amount of remuneration. every plaintiff case in which a sues both [W]e, courts, ... as well as all have car- plaintiffs the tortfeasor and the UIM average juror is either held rier —whether or not a Coots settlement unconsciously or otherwise influenced today’s holding has occurred —the effect of actor alleged negligent the fact that the juror in every every is that vehicular tort juror, average carries insurance. Such action where the defendant is insured found, frequently it has been led as- plaintiff policy providing has a UIM tray and an unauthorized verdict returns coverage will be that the defen- informed because he concludes that the defendant dant is covered it is rendered will not be whom all, insurance. After what sane required pay it out of his individual join or her would his indemnity funds because regardless the limits of the defendant’s by Knowing him. that fact carried liability coverage, in order to the injured representing plaintiffs counsel jurors that the defen- by informing them get jury seek to before the frequently by dant a is covered insurance be- indemnity the fact of such insurance? in tort ing by carried the defendant such States, courts, we, in Every jurisdiction actions, the United other as well as ours, including recognizes the inherent and to condemn it.... have never failed from in- information is pervasive prejudice consequence that results The of such known, require forming any in a tort action that well and is sufficient counsel to trial. It is useless for verdict rendered the defendant will new of this talk of the innocuous character paid by company. an insurance See (1952) 257, Shanks, evidence, time, they in 253 S.W.2d when the same (statement “I closing argument in that am get order to the information before the think defendants] [the named any [the satisfied jury, willing imperil are verdict that ought paid,” implying to be plaintiff] might lawyers All which be rendered. insured, thus would not defendants were regard know the rule in to such evi- verdict); Randle v. Mitch pay have to the dence, they expect the must not 124, 125 ell, 501, 142 Ky. rule, court to then establish wink (statement that, “It closing argument at its violation.... great not make a deal of difference does ... get The combined efforts to be- is, verdict be your what the amount of indemnity the fact of in- fore the very company cause it hurt the taxi won’t undoubtedly surance had the effect to any way.”). much create the minds of the that de- by fendants were indemnified a contract jury’s inquiry judice The the case sub of insurance so as to lead its members judgment paid the would be as whether that any clearly conclude the burden of ver- indicates by insurance or Cobb dict rendered would not have to be prejudice resulting that from the inter- the defendant, corporate borne the local jection of insurance into a tort case has not truck, byor the driver of its it sixty-six years but that diminished the since Hol- exclusively by would be borne the in- jury’s inquiry The obvi- land was decided. Therefore, demnifying corporation.... ously indicates that the verdict would have allegation petition, the the as well as jurors that been different had known counsel, the statement of clearly judgment paid by would be insurance accomplish Cobb, intended to purpose other rein- inquiry rather than and the than the one we have so often con- universally recognized truism forces the demned, i.e., wrongfully influencing jury’s knowledge any that a verdict that, per- to return a verdict paid will be insurance and it haps, would not otherwise have done. poison tortfeasor will the verdict. counsel, argument supra, The Holland, exemplified by per As some error, conclude, avoidance of this we injury lawyers employ sonal will de purpose, insufficient for that since it did any penalty vice and risk to administer not remove the paint” “insurance nor Piles, poison. Ky. Consider White “perfumed insurance odor” referred (1979), in App., 589 S.W.2d 220 which to, supra, from the case. injured in a collision between plaintiff was Id. at Turpin 606-07. See also v. Scriv an uninsured vehicle and an insured vehi ner, Ky. 178 S.W.2d passenger. cle in which she was (1944) (“[T]he bringing effect of motorist, uninsured plaintiff sued the knowledge (UM) of the the fact of defen insured vehicle’s uninsured indemnity against dant’s such accidents and the driver of the thoroughly the case as permeates At the conclusion of the insured vehicle. completely sugar liquid, evidence, as dissolved in hot trial court directed verdict easily separated and cannot be more or in favor of the uninsured motorist on the eradicated.”). Even indirect references to liability, dismissing complaint issue of carrier,2 liability against the existence of insurance have him and the UM and di Bybee plaintiff a in favor of the e.g., been condemned. See v. rected verdict Coincidentally, opinion I was 2. the author of this White —one of the rare occasions when attorney positive end a directed verdict. was the trial for the UM carrier on the of driver, connection ivith requiring apparent the insured the who had no opinion It is our jury only damages. parties. to decide the issue of the of considerations which have closing argument, plain Id. at 221. In the the of judge that the the rule mention attorney prompted tiffs remarked had liability insurance in an auto- simplified jury by throwing ordinary for the matters yield in out case must only the uninsured motorist in here.” mobile $24,812 proce- cases to the jury’s Id. at 222. The verdict for uninsured-motorist and, desirability letting jury of the set because of that remark dural aside parties litiga- upon a retrial at which insurance was not know who are the to the mentioned, a tion where the uninsured motorist car- plaintiff the received verdict $10,000. only today, participate actively rier elects to in the Id. at After course, plaintiffs attorneys need not trial. consequences poisoning fear the the ver added). course, as (emphasis Id. at 563 Of by “sneaking dict in” evidence that courts, infra, by has been noted other by policy liability defendant is a covered case, an the UM carri- uninsured motorist Now, plaintiff insurance. a UIM-covered tri- actively at generally participate er will absolutely entitled to inform the usually al motorist because the uninsured that fact. to retain not have the financial means does

counsel or mount a defense. The same III. THE MISREPRESENTATION is not true in an underinsured

OF PRECEDENTS. repre- case where the defendant will be In holding plaintiff that a UIM-covered provided counsel the defen- sented prejudiced poi is entitled to a dant’s insurer. verdict, majority opinion soned has And, contrary representation seriously misrepresented misstated and/or v. Allstate majority opinion that Coots holdings precedents of our own today’s supports somehow Insurance Co. That, jurisdictions. those of other of decision, hold ante at Coots did not course, anyone will not familiar surprise as a that the UIM insurer must be named anti-business, opin

with the anti-insurance only held party defendant at trial. Coots past ions of this Court over the fifteen that the insurer cannot UIM defend See, years. Mut. Ins. e.g., Nationwide Co. (as name can the case in the tortfeasor’s Hatfield, Ky., 122 44-61 v. S.W.3d insurer). tortfeasor’s J., dissenting). (Cooper, raised as a The UIM carriers have Creekmore, Ky., they should be Wheeler collateral issue whether (1971), predecessor our court in a suit able to defend before not, asserts, majority did as the hold carrier in the name of against the UIM must identified to the in their own UM carrier the tortfeasor rather than name, fundamentally relation- claiming “where direct contractual that it is and a defen- as a ship exists between unfair to take aim them Ante, at company.” target dant insurance defendant.... only held that the UM carrier

Wheeler no more reason to create There is coun- must be identified when the carrier’s substituting name of legal fiction actively in the trial. participates sel when the tortfeasor for party in the carrier alone is the real spec- would be

Otherwise left cases, than there is in UIM represented ulate as to the interest dealing with UM reason to do so when attorney participating in the trial

267 an action unin- carrier to defend and or UIM coverage.... Underinsured or underin- brought against an uninsured earners should be treated similar- sured tortfea- in the name of the ly, purpose and the intent sured tortfeasor as their name, sor, or in the names of in its own coverage their is similar. Co., 40 v. Allstate Ins. Tilley both. See added). Coots, (emphasis 853 at 903 S.W.2d (inter (S.D.W.Va.1999) 809, F.Supp.2d 812 course, only real the carrier is not the Of granting and Virginia law preting West in in case. Cobb party this UIM join tortfeasor so motion to underinsured 261; ante at presence,” is not a “fictitious in tortfea- carrier could defend that UIM the real in interest because she is name, though had set plaintiff sor’s even ren- pay any judgment she -will have to had carrier tled with tortfeasor UIM in favor of Earle. dered tortfea- subrogation rights against waived in foreign Nor do of the cases cited sor). majority opinion support the result King in In v. reached this case. State defending against petition In Insurance Farm Mutual Automobile writ, on Canady relied 287, (2004), A.2d Md.App. 157 850 428 Karl, rel. Allstate Ins. Co. v. State ex plaintiff brought separate action (1993), 176, 437 S.E.2d 749 which W.Va. settling insurer with the UIM after suggested had that the insurer could raise at 430. The underinsured tortfeasor. Id. name and only policy defenses its own subrogation rights carrier waived its UIM otherwise defend the name must tortfeasor, 1, against the id. at 430 n. alleged Canady, Id. at 759. tortfeasor. the tortfeasor was never a Karl, case, case, distinguished a UIM UM carrier; action against the UIM thus the (1) a carrier holding only “carrier alone the real inter- [was] could not assume the defense of an under- Coots, est.” at 903. The issue already was insured tort defendant who in King was whether the UIM carrier or her own represented his i.e., anonymously, could defend the action Karl, 758; carrier, at S.E.2d being without identified to the as an not defend in its own UIM carrier could Thus, company. the issue in being was de- name the tort defendant King factually was to that identical presumably fended Creekmore, v. no factual Wheeler bore flowing to the prejudice because of the judice. resemblance the case sub informing tort defendant insured, Canady, State ex rel. State Farm Mutual Auto that he was id. Canady, Canady, at 110-11. mobile Insurance Co. S.E.2d (1996), represented not W.Va. 475 S.E.2d 107 uninsured counsel, sought an action in but the UM carrier wanted to which insurer identity jury. It from him. Id. at 111. Ca- conceal its from the was distance itself in- original appellate nady an action in an court in held that the UM carrier could tervene, purpose that one of the petitioned noting which the UM insurer for a writ prevent prejudice against require the trial court to allow it to statute was to and that the UIM companies insured’s tort action insurance intervene its its not to have motorist so that the carrier had waived uninsured in the mount a in its own insurance mentioned insurer could defense the tortfeasor was Id. at case. Id. at Since name and with its own counsel. statute, uninsured, identifying the carrier to Virginia A UM 475 S.E.2d 107. West him. 6-31(d), permits § a UM the did not W. Va.Code 33 - 268

Canady coverage, right, overruling prior also noted that two holding UM cases like liability coverage, primary coverage is at prior otherwise. Id. 284. Those cases only secondary while coverage UIM cov- a had held that UM carrier could not abe erage, analogous to excess insur- party against to a tort action an uninsured 111 Canady, ance. 475 S.E.2d at n. 4. prejudice resulting motorist because of the analogy That our own char- comports with interjection from the of insurance into the coverage conceptu- acterization of UIM Tate, 355, case. Kesler v. 28 2d 502 Utah insured, ally permitting purchase 565, (denying P.2d 566 interven liability coverage additional for the vehicle Peterson, tion); v. 25 Christensen Utah 2d prospective a underinsured tortfeasor. 411, 447, (1971) (denying 483 P.2d 448 Ass’n, LaFrange v. United Serv. Auto. 700 joinder). 411, Canady 414 further McQuery, Tucker v. 107 Ohio Misc.2d case, noted that a UIM the tort defen- 38, (Com.Pl.1999), N.E.2d 574 736 the tort- dant generally provided by has counsel action, longer party feasor was no to the insurer, so there is need for the only party so the UIM carrier was the participate, UIM carrier to whereas in a n. 1. interest. Id. at 575 case, UM not tortfeasor often does counsel, private have so the UM carrier In Lamz v. Geico General Insurance has no actively participate choice but to to Co., (Fla.2001), 803 So.2d 593 the Court protect its interests. 475 Canady, See partic noted that “Geico UIM [the carrier] S.E.2d at 112 n. All of points these defendant, ipated party repre at trial as a majority contradict the opinion’s reasoning attorney,” at sented its own id. judice. the case sub “jury held that the should be aware made Chambers, (Utah Lima v. 657 P.2d 279 identity of an precise of the uninsured or 1982), Canady was similar to in that a UM underinsured insurance carrier it is a unsuccessfully sought carrier had to inter (emphasis at trial.” Id. 595 add vene and defend its own name a tort ed). Thus, Lamz, Farm, King like v. State brought by against action its insured an factually akin to Wheeler v. Creek plaintiff uninsured motorist. The did more, but bore no factual resemblance to Sue UM carrier and had obtained an judice. case sub uncounselled affidavit from the defendant (Fla. Peralta, Medina v. 1188 So.2d liability. in which he plain admitted 1999), carri indeed held the UM/UIM tiff had used this affidavit to obtain a joined er must be as a and identified summary judgment on the issue of liabili ‘ specifically jury by its status as a ty. The sought UM carrier to intervene to or carrier. Id. at UM UIM 1190. Howev damages, defend argu the issue er, that case on the fact that under turned ing that unrepresented the defendant was law, Florida carrier is “nec UM/UIM unlikely provide adequate de essary party” (citing to the action. Id. Gov fense to the issue. The asserted Krawzak, Employees Ins. ernment Co. relationship that its carrier the UM (Fla.1996), n. i.e., 675 So.2d which contractual, carrier was UM obli amendment of Fla. held that Stat. gated any judgment to pay obtained 627.727(6) Ann. § that an action motorist, required against had no uninsured but coverage brought solely plaintiffs UIM participate tort insurer). Ken Relying action. Id. at on the UIM Under Utah’s 24.01, law, equivalent tucky carrier is a real of CR Lima held that the UM carrier could intervene as a matter of to an action an underin- avoid the separation or is to “necessary bifurcation sured motorist but is not interjection party” to such an action. See CR 19.01. associated with the prejudice prosecuted by Bailey, Ky., 299 Gray While action must be v. of insurance. interest, 17.01, provi in real CR also Fid. & Cas. S.W.2d 126 See prosecuted requires Mills, sion that an action be N.Y. v. 319 F.2d 68 Co. of by a in against or real 42(b)); Tilley, (interpreting Fed.R.Civ.P. defended is especially where that interest (same). If that at 815-16 F.Supp.2d 40 interest — trial to that of another real identical at issue, I conclude that were the would providing in who is an ade did not abuse his discre- Judge Jernigan I in quate passing defense. would note negligence the and dam- bifurcating tion that the in Medina v. Peralta did Court issues from the insurance issue ages what, any, prejudice might not address purposes of trial. identifying flow to the tort defendant from Jones, However, Ky., 864 Wittmer plaintiffs as such at trial. UIM insurer (1993), it we held that was S.W.2d 885 summarize, To no case cited the ma- to a direct reversible error not bifurcate jority majority’s opinion supports the con- company action an insurance a plaintiff clusion that has a to inform underlying negligence claim: from in a the tort UIM case joinder to impediment we see no While defendant policy is covered action, single in a at trial of the claims All precedents insurance. of our own hold underlying negligence claim should and, otherwise for Medina v. Peral- except adjudicated. Only should first be then ta, language which turned on the of a local the direct action the insurer be statute, no case is found where a court has presented. Liability insurance should held that a potentially UIM carrier that is interjected needlessly not be into the partici- liable for an excess verdict must case. Here failure trial aof pate in the trial and to must be identified but for prejudicial to bifurcate was error jury. prejudice the fact that no actual result- going If this ed. we were to reverse IV. BIFURCATION NOT ONLY for a new we would order case PERMITTED, BUT bifurcation. REQUIRED. added).3 (emphasis Wittmer Id. at 891

Generally, whether to bifurcate issues a direct action an insurer was purposes of trial is within the sound (“If claiming a violation of the Unfair Claims discretion of the trial court. CR 42.02 Act. 304.12- Settlement Practices KRS separate the court determines that trials judice is a direct action 230. The case sub will be furtherance of convenience or on a obli- against an insurer contractual will prejudice, avoid or will be conducive tort defen- gation. economy, it shall order a expedition bifurcation, the dant is the same. Absent separate separate trial of ... issue issues.”) added.). ... will informed that the tort defen- (Emphasis or That be especially purpose true when the of dant is insured support holding, trial court elected "[t]he of this Justice Leibson which he noted that trial,” at 847 and dissenting opinion Federal 711 S.W.2d cited his own bifurcate the Hornback, way procedure proper Kemper Ky., was the "[a] Insurance Co. v. bifurcated (1986), incorporated by try present case.” Id. at 849. Coinci ref S.W.2d opinion Curry dentally, the author of this erence in v. Fireman’s Fund Insurance (1989), judge Kemper. trial in Federal prejudice flowing insurance. The

that knowledge exemplified when

jury inquired judge of the trial whether

the verdict would paid insurance or Cobb, obviously Ms. indicating that the

amount of the depend upon verdict would

who required pay would be it. Jones, Judge

Under Wittmer v. Jerni

gan required to bifurcate the contrac

tual issue from underlying negligence 42.02,

case. did Under CR he least doing

abuse his discretion in If so.

Indiana had right partici asserted its

pate Earle’s claim in defend name, required

its own he would have been right against balance that jury’s

to Cobb from the knowledge that

she was covered Here, only person

insurance. assert

ing right to prejudice poison Remarkably, verdict is Earle. the ma

jority of this Court has concluded she

has to do so. absolute I

Accordingly, dissent.

JOHNSTONE, J., joins dissenting this

opinion. Lemke, Louisville,

Michael C. Counsel Appellant. for Stumbo, Gregory Attorney D. General of Kentucky, Assistant Young, Special Teresa General, Louisville, Attorney Counsel WEAVER, Appellant, Jason Appellee. JOHNSTONE, Justice. Kentucky, COMMONWEALTH of Appellee. appeal This is an from a decision of the Appeals determining Court of that the tri- No. 2003-SC-0353-DG. dismissing al court erred second-de- Supreme Kentucky. Court gree escape charge. Discretionary review granted. For the reasons set forth Feb. below, we affirm. The, uncontested. facts this matter are Following Appellant’s indictment as-

Case Details

Case Name: Earle v. Cobb

Court Name: Kentucky Supreme Court

Date Published: Dec 16, 2004

Citation: 156 S.W.3d 257

Docket Number: 2000-SC-0818-DG

Court Abbreviation: Ky.