*1
EXCHANGE, Plaintiff
FARMERS INSURANCE
and Re-
CHRISTENSON,
J.
MARK ALLEN
v.
spondent,
Roland
M.
Christenson,
Defendants
Christenson
and Karense
Appellants.
No. 83-177.
Submitted March
1984.
July
1984.
Decided
Lloyd E. argued, Hartford Billings for defendants and appellants. Firm;
Crowley Law Ronald argued, Lodders Billings, for plaintiff respondent. and
MR. JUSTICE HARRISON Opinion delivered the Court.
This is appeal an from an order a denying motion to va- cate a default judgment stay and of execution. The defend- ants sought to vacate a judgment by default claiming judgment to be void. The District Court of the Thirteenth District, Judicial Yellowstone, County and for the de- nied the defendants’ motion.
On June defendant Mark A. appar- Christenson ently caused an by improperly accident operating a motor vehicle. vehicle, Kristine N. Hinckley, passenger a in the sustained injuries as a result of the accident. Both Christen- son and Hinckley were minors at the time of the accident. Christenson had no insurance on the vehicle when the acci- dent occurred. (Farmers)
Farmers Insurance Exchange Hinckley insured paid $7,000 and on arising her claim out she injuries sustained in the accident. paid Farmers this under an unin- provision sured motorist Hinckley policy. insurance As required in policy, Hinckleys per- their assigned of a injury part sonal action to Farmers as clause. February 10, 1982,
On Farmers filed an action $7,000 on parents paid personal Christenson his proper injury claim. The Christensons received service complaint to an- and summons. The Christensons failed On defend this action. swer or take action to 1982, April judgment filed a motion for default July 29, said motion. granted and on the court January 11, 1983, filed motion to On the Christensons They stay the execution. judgment vacate the default an Farmers was judgment asserted was void because Hinckleys improper party in the action. The lacked subro- ability assign personal action via the injury their case, hearing clause on their gation Following to Farmers. occurred properly the court found that properly. default entered Appellants on appeal: raise two issues ac- subrogate Can insured *3 following to an the company tion insurance arising policy protection against a claims out of motorist? im- if Was the void Farmers was default
proper party to the action? erred determin-
Appellants contend the District Court interest respondent subrogation ing that received a valid party Hinckley. They injured Kristine that an contend claim to an insurance subrogate personal injury cannot Therefore, insur- company. subrogation Such invalid. in interest the suit company ance is not a real cannot sue tortfeasor. (Mont. v. Reitler on Allstate heavily
Appellants rely 1981), 667, St.Rep. 821, proposition that 628 38 for the P.2d to an injury claims subrogate personal the insured cannot woman, Welton, who Reitler company. insurance involved accident caused suffered an an automobile injury $2,000 her medi- from Allstate for Reitler. Welton received expenses, cal but that amount failed to cover the total expenses. (Farm-
She then settled with company Reitler’s insurance ers Insurance Exchange) signed of claims release them. Allstate then claimed a $2,000 and tried to recover paid it to Welton from Reitler. This Court held that clauses on medi- invalid, cal policies insurance are say and went on to insured could subrogate their personal injury claim to company. insurance Cody Cogswell v.
Appellants also cite 100 Mont. 496, 50 P.2d support their personal injury claim that claims cannot be assigned. That case involved a writ of at- personal tachment on a injury judg- cause of action before a ment was rendered. This Court personal held that suits were not subject to writs of attachment.
Respondent distinguishes Reitler it involved medi- cal coverage and not uninsured motorist coverage. It dismisses the broad against assignment statements injury claims as dicta. Reitler, Morrison,
Justice carefully author of limited the holding to payments subrogation medical clauses:
“We hold that medical payment subrogation clauses are so, invalid. In doing we are join- mindful this Court ing a minority of jurisdictions However, holding. so public policy considerations militate in re- favor of such a sult.” 628 P.2d St.Rep. at at 824.
This is say not to approve we wording of the clause in this contract opinion which in our could be abused company. insurance The clause reads:
“Subrogation. In any payment pol- event of under this icy, company to all the insured’s shall subrogated *4 against therefore, any person organiza- or tion, and the insured shall execute and deliver instruments and papers and necessary do whatever else is to secure such rights. The insured shall do nothing prejudice after loss to added.) such rights.” (Emphasis that possible could In under this clause it be opinion our an amount excess could collect company the insurance permit- not be insured. That will paid out to the what to be permitted company can ted. The insurance to insured. paid for the amount out subrogated sub- the need for equity dictates Respondent asserts & Tel. States Tel. Skauge v. Mountain rogation. It cites support this claim. P.2d to 172 Mont. a claim for Skauge, subrogation of permitted Court this from defend- property that resulted damages the may occur after subrogation negligence. ant’s We said his entire loss. made whole for insured has been subrogation policy requires public Respondent argues of claims subrogation precluded If Court this case. motorist motorists, uninsured then the against uninsured receives plaintiff insured benefit. Once the probably would accident, likely it is less compensation for the the insurance motorist. against pursue litigation he will unin- Therefore, the chances subrogation enhances promote wrongdoing, pay will for his sured motorist carry insurance. policy requiring motorists public is one of above, issue here controlling As noted can carrier uninsured motorist policy. hold that an We insured settles insured, and when make party, a third his claim or obtains a paid to the amount collect back subrogate carrier can re- carrier can Further, motorist the uninsured the insured. in- name instituted quire the action be effectuate in order to motorist the uninsured sured motorist carrier. the uninsured interest of jeopardize or impair, must not diminish But said action of the sub- in excess any damages ability sured’s to recover occurs, the unin- then If rogation amount. faith, must, seek for in good sured motorist carrier punitive) special damages (general, insured other in his have received may that he carrier.
255 argued While it is issue on this Court’s hinges that Reitler, we interpretation where denied payment coverage, public policy medical we believe that de- that our in to medical holding mands that case is limited payment coverage. Cody, supra, Reitler in
Appellants’
reliance on
also cited
proposition
long opposed assign-
for the
that Montana has
Cody
claims,
personal
ment of
is unfounded.
never
only
dealt with the issue of
That case
involved
assignment.
issue
attachment.
“In
argument
question,
their briefs and
on this
counsel for
both sides have
space
devoted considerable time and
to the
question of
such
assignable,
whether
a cause of action is
person
whether it survives the
in
death
whom it re-
case,
poses. As we view the
relevancy
these matters have no
presented
real issue
question
here. The
to be
determined is whether
inju-
a cause of action for
ries is subject
to attachment
judgment
before
is rendered
Mont,
thereon.” 100
at
In the second appellants claim that because subro- occur, gation cannot respondent party then cannot be a real 17(a), in They M.R.Civ.P., interest. cite “[e]very Rule prosecuted action shall be party the name of the real interest . . .” The lack of a real renders interest the judgment always A judgment subject void. void is 60(b)(4), provided collateral attack as M.R.Civ.P. Rule Due proper, to the fact we we find the will not treat the second issue due to mootness. properly
The District Court found such valid. judgment We hereby affirm.
MR. CHIEF JUSTICE HASWELL and MR. JUSTICE GULBRANDSON concur.
MR. later. opinion JUSTICE SHEA dissents and will file MORRISON, specially MR. JUSTICE concurring: concur the result but for a different reason. Exchange This action was initiated Christenson, Roland complaint against Mark Allen filing re- seeking to Karense M. Christenson J. Christenson and $7,000. The record reflects in the sum of damages cover they upon defendants proper service was had July on A was entered appear. judgment default failed to judgment motion to vacate 1982. Defendant’s Defend- days later. January some filed until be set cannot acknowledge judgment the default ants other than upon grounds aside void. *6 sought by Farmers damages argue
Christensons assignment unlawful Exchange resulted from an assignor. to Farmers belonging of a claim Dis- and the in the District Court argument urged This was District Court Christensons. The trict Court ruled legal argument. its on the merits ruling based on a valid Farmers’ claim rested District Court held that interest. merits. not have reached the The District Court should en- judgment simply arguing is no basis for There clearly had 29,1982 District Court July void. The tered was matter of the action jurisdiction subject of both the then a jurisdiction parties personally. When a court if court’s ac- collaterally judgment can attacked Fed- power.” 7 Moore’s “plain usurpation tion involves a Practice, eral Section 60.25[2]. Court the District judgment
Here it clear that motion to set collaterally Christenson’s cannot be attacked. This Court cannot timely. aside the is not default Farmers’ validity of involving reach the merits interests.
I vote to affirm. WEBER, concurring: specially MR. JUSTICE opinion majority I concur the result reached special concurrence foregoing the reasons set forth affirm. I therefore vote to Justice Morrison. dissenting:
MR. SHEEHY, JUSTICE I dissent. Sibyl
The ancients tell us that Aeneas descended with the melancholy regions shown, of the dead. He was near place per- oblivion, the river of of torment for one who making say thing today law, verts the it one and another tomorrow. implying
I am this decision the members of majority go my jurisdic- will to Hades. That is not in implying tion. am the members of the past should look over their shoulders to the and their ear- pronouncements. lier May
On we stated it was invalid Montana to assign personal injury claim a tortfeasor to a sub- rogee. Today, permit assignment. in 1984, we such today approving assignment,
The Court in the name subrogation, personal injury of a claim so the insurer can supports sue as the real in interest. No statute Court’s action.
The facts of the case must first be understood. On June years operating Mark Christenson, Allen old, 1968 Ford motor vehicle owned Eric T. Christenson. passenger Mark’s in the automobile was Kristine N. Hinck- ley, a minor at the time. The automobile overturned on a county *7 County road in Yellowstone and Kristine suffered personal injuries.
Mark Allen Christenson, driver, the was the minor son of parents, Roland J. and Karense M. Christenson. Mark’s compliance agreed law, with Montana had to assume liability get Mark’s so that he could a driver’s license. parents undoubtedly These realize, did not am sure parents that most they realize, Montana, do not that in when liability assume for the issuance of a li- driver’s full person, they legal cense to a minor are on the hook for ab- liability person driving solute without limit if the minor is injures an someone, uninsured vehicle which or if their own policy liability of insurance does not follow the minor when he drives a non-owned automobile. case, owned driving
In the minor was an automobile this Christenson, brother, by his by Eric T. a owned (we no this parents. quite possible have record on It policy liability of insur- point) parents here had a ance, provide coverage, him which Mark and would follow by driving was was owned the automobile Mark unless household, not insured under of the same but was member situation, policy of parents’ parents’ policy. minor driver. coverage insurance does not follow the situation, result to the unfortunate the net Because of this parents they proba- will of Mark Allen Christenson required by bly upon pay now be called always at parents were majority of this Court. While the Kristine, injured through driving Mark’s risk to if she were vehicle, never risk to her parents were at of Court. majority opinion insurer until collision, Hinckley At the time of the Kristine N. probably through a by Exchange, Farmers Insurance sured par- her policy liability insurance owned automobile ents, Hinckley. D. of insurance Dan K. and Rae Ex- Hinckleys Insurance with the Farmers owned re- as is provided coverage uninsured motorists change Exchange, without quired Montana. Farmers Insurance suit, parents with the agreement entered into a settlement $7,000. It should be Hinckley for the sum Kristine accident occurs to remembered that when an automobile applies, the insur- which an uninsured motorist insured, adversary its own company ance becomes an as its in- taking part the uninsured motorist negotiating sured settlement. as the father and February Hinckley,
On Dan K. D. Hinckley of Kristine and Rae conservator of the estate with Farm- mother, agreement as her entered into release $7,000, which release ers the sum Exchange following language. contains the individually, as undersigned,
“NOW THEREFORE' *8 father Hinkley of Kristine and as conservator [sic] in person, estate con- Hinkley protected of Kristine N. [sic] Thousand Dollars sideration of the of Seven ($7,000.00) him, hereby received does forever release and Insur- discharge Exchange Farmers Insurance and Farmers Group, employees, ance and from agents, its all every claims and causes of actions of kind and character arising Hinkley out of the to Kristine on or injuries [sic] about June parties expressly agree, 1981. The Hinckley, event K. Hinkley that Kristine or Dan as [sic] her guardian, successfully pursue any against claim automobile, Christenson, driver of the Mark Allen Farmers Insurance enti- Exchange subrogated shall become to and made, indemnity namely tled to for the Seven ($7,000.00).” Thousand Dollars please
Note language that in the release instrument action, does not constitute a transfer of the cause of but provision indemnity instead is a conditional for in event presses either Kristine or her guardian against a claim the uninsured motorist. No mention is made in the release itself, acting a suit for company, against insurance parents of Mark Allen Christenson.
This Hinckleys signed the first release that Farmers Insurance later in Exchange, but will discuss opinion. this dissenting
Farmers Exchange, following Insurance instead of the lan- guage release, above, Hinckley of its Kristine allowing guardian pursue or her personal injury claim parents, Mark and his file its action its chose instead to $7,000 directly own name it the District Court for the paid on Kristine’s Some judgment. claim. It took a default entered, fi- nine months after the judgment default responsibility Highway nancial of the Montana Pa- division trol Mark suspended the driver’s license of the father of trig- Christenson. It incident was this unlooked-for gered parents the motion of the of Mark to set aside default obtained them favor of Exchange ground assignment on the claim personal injury is invalid Montana. assignment claim on tort based *9 invalid, per- That
Montana is indeed
or was until now.
a
injury
sonal
claim could not be
was established
assigned
Co.
Caledonia
v.
Railroad
Insurance Co. Northern Pacific
46,
Judge Holloway noted
32 Mont.
“Montana has case). jury (citing policy an insurance claims Whether provides subrogation provides for in this or case] [as proceeds of insured’s third the carrier has a lien on the an part party recovery, assigning has effect of policy right recovery against party of the a third insured’s assignment hold such invalid.” tortfeasor. We an (Material added.) in brackets above, agreement
As I release does pointed have out permit Exchange sue its own Farmers Insurance tortfeasor, agreement against name since the release its indemnity company one for between insurance indepen- Exchange If insured. Farmers Insurance insur- from its right subrogation dent at all it must come fol- includes the policy Hinckleys ance issued to which lowing clause: pol- this
“Subrogation. any payment under the event to all the insured’s icy, company subrogated be shall or therefor, against any person organiza- right recovery instruments tion, and deliver and the insured shall execute necessary to secure else is papers and do whatever [sic] after loss nothing insured shall do rights. such prejudice rights.” such Exchange the clause on
This is which real interest claims the to sue as the recovery, and right of the tortfeasor for the insured’s from whom persons organizations all obtained, parents of the might including personal driver. That constitutes a transfer gen- appears Hinckley. claim of Kristine The clause not on the provisions policy, eral of the insurance gen- recognize that a sured motorist endorsement itself. in an insurance necessary eral clause is prop- company because has a is no erty damage payments it make. There might for which quarrel the clause how- Applying Montana about that. paid ever to for under the endorse- injury claims *10 ment was of the invalid at the time of the issuance position because of long standing this Court’s injury subrogated. claims not or It is this assigned could be upon Exchange right clause of ac- which Farmers Insurance tion must stand or fall. permitting
The injudicious members are (1) following grounds: Farmers’ action here on at least the (2) it; The statutory authority permit The Court to has no subrogation proper Court fails distinguish to between (3) suits assignment; Farmers’ action is not a bar to further (4) tortfeasor; Hinckleys against fully not surer’s action is the insured is improper when (5) re- compensated; accompanying There will be no mo- premiums pay duction in the Montanans for uninsured torist coverage. Statutory Authority Lack of subroga-
In statutory authority permitting absence scru- we should coverage tion of uninsured motorist claims such ple adopted have permit subrogation. Other states rising other analysis An of cases permitting legislation. permissive statutes, states, a number inci- under reveals require legisla- questions relating subrogation that dental Waiting legislative in the field tion to for direction solve. undoubtedly help to some needless would close the avenues opened up by majority. litigation in our state examining In states within the Pacific the statutes of other (Section Digest system, Ariz. 20.259.01 we find Arizona 10-4-609), Stat.), (Colo. Hawaii Rev. Stat. Section Colorado UC) (Section (Section HRS), 41-12-21.1 431-448 and Utah (Section provisions nearly 33-33-201, have the same as ours MCA). statutes. hint of is found those No following provi- adopted legislature
The California (Section 580.2(7)(g)): sion
“Subrogation. paying under an unin- The insurer a claim coverage, be entitled to sured motorist indorsement or shall subrogated rights to whom such of the insured causing injury paid against any person such claim was payment . .” death that the was made. extent provides subroga- provision Note that the California against tion motorist but not the uninsured “any person causing This means that such or death.” respond joint in sub- can be made to and several tortfeasors rogation under the who has made a to an insurer coverage. motorist subrogating insurer California, however, of the right of the in to collect from others is sublimated to injured jured party Thus, if the to be made whole. fully compensated limits of the coverage, an action and has uninsured motorist making joint tortfeasors, under insurer other has no the uninsured motorist *11 injured party from the other made whole until the has been Companies tortfeasors. United Pacific-Reliance Cal.Rptr. (1983), Kelly Cal.App.3d 323; Se 72, 189 v. 140 (1973), curity Hand Insurance Co. v. National majority opinion CalApp.3d Cal-Rptr. The 439. 227. 107 protecting provision ignores this this restrictive case insureds. au- grant of here, the deciding general
In the we are case this Court by majority of thority the for as joint result into the insurer account does take such decide should the legislature tortfeasors. submit issue. In coin: joint
Here tortfeasor is the other side 48.22.040(3), R.C.W., provides: Washington, Section the “In insured under payment event of the con- required subject to the terms and chapter this payments such coverage, making ditions the insurer of such shall, thereof, proceeds of entitled to the to the extent the any resulting settlement or exercise any rights recovery person of such insured against for organization legal responsible bodily injury the made,. which .” such . Mead Guaranty Company Hawaiian Insurance and v. Court Washington Appellate 538 P.2d the the provided subrogation
held the statute motorist, no uninsured causing damage, and person the the right recovery The Wash- parties. existed other states, ington Mississippi, Michi- decision recites four Missouri, gan, majority held Georgia have likewise. permit company against suit the insurance case parents the of the uninsured driver. theory that one upon equitable is founded
Subrogation pays legal who another stand obligation should payee shoes of from the one to recover equitable makes payment. who should have made That sense. limit The five states which others, motorist, and subrogation against no recognize theory on which is founded recovery against grant should not be extended to being parties condition of participated who have not deficiently Again majority uninsured. considered in this with decision case implications of its motorist. respect the uninsured parties, to third other than *12 ORS, Section 743.795 the state of to Oregon careful insured, of action in keep right company, not the payment event of under an uninsured motorist cover- age. Its statute sets out clauses to be included in the 11(a) of motor including vehicle insurance “the insurer shall be entitled to the extent proceeds of such any settlement or judgment may that result from the exer- any cise of rights recovery person against any of such un- 11(b) insured provides motorist ...” Clause that “such person shall hold trust for the of the insurer all benefit rights of recovery may which he have the uninsured person 11(c) . . .” Clause allows to be made from joint 11(e) provides tortfeasors. Clause the insured shall bring action against parties the uninsured motorist or other if the requested insured is to do so the insurer.
Clearly Oregon still observes the common law sanction against assignment claims. (Kan.Stat.Ann. 40-287),
The statutes of Kansas Idaho § (Idaho (Wash.Rev.Code 41-2505), Washington Code 48- § § 22-030), 31-10-104) (Wyo.Stat. point to Wyoming an- § interesting other result. In those states where the statutes nearly same, are provided making it is the insurer “shall, on coverage, the uninsured motorist extent, proceeds be entitled to the settlement or judgment resulting any right from the exercise of of recov- ery” against responsible party. goes Each of those statutes provide on to right the insurer shall have a direct action if required the insurer is to make an uninsured payment by insolvency motorist virtue of the of the motor- may ist. It deduced the terms of these statutes insured, sue to reim- subject remains making payment bursement of the insurer after settlement, the insurer is but a direct of action to given his responsible where the motorist is insolvent insolvent estate.
From the the issue is not foregoing, it can be seen that authority, simply statutory the Court without allow should payments motorist subrogation of uninsured problems related insurer. The by direct action therefore case single court by a to be answered complex are too legislature. decided should be subject and the whole subroga- between distinguish The failed assignment. tion can is whether Farmers issue in this case gist of the *13 his uninsured motorist against a direct action the
bring Co. v. Allstate Insurance guarantors. This Court noted Reitler, in a transfer which results supra, subrogation that a insurer, assign- is in effect an to the the cause action subrogation. ment and not is, clearly in mind. There kept
The distinction should be not be able to re- course, Farmers should why no reason under payment its settlement cover to the extent it made clause, if is that the uninsured motorist the release by Certainly the insureds. is what made I contemplated. Hinckleys which Farmers took from the clause if held that agree would to reim- policy merely right on an asserted automobile bursement, agree I indemnity, but cannot contribution or the cause of action. the insurer became the owner of Insurance Co. Bureau Mutual Rinehart v. Farm Idaho, (Idaho 1343, 1974), 115, was careful 96 524 P.2d Idaho note distinction. simply seeking
If to its release was according Farmers any judg recover here to the extent of its Hinckleys, in the name of the ments or settlement received recovery. its to such quarrel would have no with name, directly, its own When insists on the to sue it an as interest, becomes as a real its Cal.2d Manor v. Finsten 54 In signment. Fifield 1073, Supreme the California Cal.Rptr. 354 P.2d to refuse preserve Court was careful to the distinction assign authority for the statutory no subrogation where of action existed. ment of the cause against motorist is Farmers action by Hinckley’s. a bar to action further An the ab- refusing juncture, excellent reason for at action, by suit insurers permit sence of direct legislative cover- uninsured motorist payments who have made under action age is suits not bar further that such direct do or his injured parties same uninsured motorist Thus, split, goes which guarantors. the cause of action finality. jurisprudential all sense and grain ap- This illustration. Attached as case is an excellent in this pendix obtained copy the release clause, is noted that case. the second “whereas” it motorist Hinckleys to the included uninsured issued In view of those cover- payments coverages. and medical follow- it the release also includes the ages, is curious that ing paragraph: release, original parties agree
“In this regard, reci- so far as the September dated was incorrect provisions under concerning the insurance tations therein expressly $7,000 It is now which the was made. $7,000 paid pursuant that the sum of understood coverage.” uninsured motorist *14 $7,000 however, pay- that the goes say,
The release on to kind claim every final of payment ment is full and of Hinckleys, pre- by against Group Farmers the sumably including coverage medical benefits. (1) pay- release: possibilities respect exist with to the
Two motorist the uninsured exclusively ment was made under Hinckleys under no made to the coverage, and case, Hinckleys In such provision. the medical the unin- expenses against medical right have the to recover Thus, Farmers permitting guarantors; motorist or his sured Hin- and the motorist to recover the uninsured on consti- expenses payments ckleys to recover on the medical (2) Or, the medical action. splitting of the cause of tutes a single payment payments by subsumed Farmers were bene- medical $7,000. event, suing is In that of paid, which, fits payments coverage, under medical under Reitler, our holding in is in invalid Montana. course,
Of the may statute limitations now have run as far as Hinckley the suit the motorist is concerned, but at release taking the time the here in question, only elapsed. Again, months had this seven California, above, Court should consider the rule in quoted that right the insurer has no an in- where fully hope sured has not been compensated. would that we Skauge v. Mountain would adopted continue the rule States and (Mont. 1977), Tel. Tel. Co. 172 Mont. P.2d to the an effect when insured sus- insurer, tained a loss excess the reimbursement the insured is entitled to be made whole for his entire loss and cost of including attorneys fees before the insurer can assert its of legal subrogation insured or the tortfeasors. Action where improper insurer would
insured not fully compensated. is Skauge,
We above, have cited the California cases our case, indicating not is available surer compensated. When, unless the is fully insured as in case, this granted bring to an insured to direct action, there will be race to the courthouse between the insurer and the recovery. insured to achieve a first That the inevitable splitting result of a cause of action.
It Court, be a should matter of embarrassment to this involved, firm arguments law made this case, Court, adopted by exactly op- stance are Reitler, posite arguments adopted and stances Reitler, supra. same firm representing law then Farmers Insurance in this Exchange filed brief case urged upon which it expressly recog- this Court that we had nized rule against personal that causes of action are assignable. proposition cited in support It Cogswell Coty v. Toole 249; 100 Mont. 50 P.2d *15 v. Paumie Persian House (1935), 74, Dye 52 101 Mont. P.2d 268 375, 1035;
162; (1935), 106 Mont. Baker v. Tullock 77 P.2d Ry. Pac. Co. (1905), Caledonia Co. v. Northern 480, 46, 544; relating to 32 79 P. and 40 A.L.R.2d Mont. personal injury, and the Restate- assignability of claims for (Second) 547. ment of Contracts Section later, Now, the same law firm and the same years three stance, and in the company opposite insurance take an public reverse without policy, name of ask this Court to respect statutory authority position our with longstanding claims. Farmers non-assignability to the swallowed, public policy in argued majority in state is en- providing insurance on all motor vehicles actions bring insurers to direct allowing hanced to of us that motorists! It should be evident all motorists who are not to sue uninsured going Farmers is parents in case the judgment-proof. only It is because liability brought suit had been signed a form for Mark that companies eleemosynary not this case. Insurance are money after apt good stitutions. There are no more to chase any party. bad than other no accompanying premi- reduction There will be coverage.
ums Montanans
uninsured motorist
pay for
in this
subrogation granted by
Subroga-
company.
insurance
complete gravy
case is
to the
companies
deter-
tion is
a factor used
insurance
Arizona took note
mining
premiums charged.
the rate of
as-
between
refusing
this fact
to make
distinction
right of the
respect
with
signment
Insurance Co. v.
It held in Allstate
insurer
recover.
Durke
Ariz.
P.2d
492:
576
to his
“Also,
to return
require
injured policy
holder
is to
paid premiums
for which he has
insurer the benefits
foresight.
terms
him
benefits of his thrift and
deny
allowing an insurance
public policy
justification
pay out
it contracted to
company
recoup the benefits
payments which are
receipt
premium
for the
exchange
actuarially
lowering
be the
adequate would
presumably
*16
premium
recoupment.
rates as the
a
This is
result
such
generally not the case:
“ ‘Subrogation
insurer,
plays
is a
it
no part
windfall
(or
one),
only
rate
minor
schedules
a
and no reduc-
tion is made in
.
insuring interest.
. where
Patterson,
obviously
will
something.’
be worth
Essen-
(2d
1957)
tials of Insurance Law at
au-
(citing
151-152
ed.
thority).”
Thus, although majority opened up to insurance companies a subrogation to sue its own name might wherever it recovery, make not unin- sureds, but parties, accompanying other no benefit will by accrue the form of premiums paid reduced to be Montanans their for uninsured coverage. motorist surers money will collect the for same amount us permit whether we subrogation. not rejoice
Insurers can Subrogation that. is not factored they premiums insurers when set the uninsured mo- torist coverages. spread The loss cost is among regard holders without to subrogation. Montanans won’t see drop coverage premiums motorist because They proliferation decision. will see a of lawsuits believes, insurers “enforcing public policy” as the gravy. collect that The term be principles “law” can defined as that group precedents which, may it fairly predicted, a court apply given will to a set of facts. is of the Predictability essence. A unpredictably court which from one end swings spectrum other, pausing at shades be- tween, is not It is no applying acting law. as more than ad hoc committee.
I would reverse and dismiss.
APPENDIX B EXHIBIT PLAINTIFF’S RELEASE WHEREAS, Hinckely re- Kristine on June [sic] riding in which she was injuries ceived when the automobile Al- operated by Mark passenger, which automobile as Christenson, junc- L745 near the County Road lan on [sic] road, control, left the out of Fly tion with Creek Road went by Mark Allan automobile driven and overturned. Said [sic] uninsured; and Christenson was
WHEREAS, Hinckley holds Dan K. undersigned *17 Exchange Insurance issued Farmers of insurance a medical coverage and uninsured motorist which includes payment provision; and
WHEREAS, Hinckley ap- K. was Dan undersigned Hinckley, and pointed of Kristine of the estate conservator of and as conservator capacity as father his individual daughter, minor Hinckley, of his the estate Kristine with Farmers full final settlement agreed upon now and Group; Insurance and Farmers Exchange Insurance individually, as NOW, THEREFORE, undersigned, of the estate Hinckley, and as conservator father of Kristine of person, consideration Hinckley, protected Kristine of Dollars Thousand and of Seven no/100 him, release hereby forever ($7,000.00), does received Exchange and Farmers Insurance discharge and Farmers of and employees, Group, agents, its Insurance every of kind of action any and all claims and causes Hinckley on Kristine injuries arising character out expressly agree, parties June 1981. The or about Hinckley, her K. as Hinckley or Dan that Kristine event driver successfully pursue claim guardian, Christenson, Farmers automobile, Allan Mark [sic] to and enti- subrogated shall Exchange Insurance become $7,000.00. namely made, indemnity for tled to release, parties In this regard, original agree September 16, 1981, dated so as reci- was incorrect far concerning tations provisions wherein the insurance under $7,000 expressly which the payment was made. is now It $7,000 understood sum of paid pursuant that the coverage. uninsured motorist
It is the every intent hereof that all kind and claims character against Group Insurance and Farmers hereby fully finally Exchange compro- mised and settled.
This is given pursuant release to an order of the District Court of the Thirteenth Judicial District of the State Montana, County and for the of Yellowstone. day
Dated 10th February, 1982.
Dated this day February, 1982. Hinckley Dan K.
/s/ Dan K. Hiinckley, father, individually as and as conser- vator of Hinckley, protected estate Kristine person. Rae D. Hinckley Johnson
/s/ Rae D. Hinckley, Hinckley, Johnson mother of Kristine protected person.