*1 Appellant “kidnap” and “abduct”. words objected alleged misstate- to each of the

ments, resulting in a the first occasion with ruling being successful mak-

favorable rephrase argument.

ing prosecution objection as the was overruled

The second

wording a fair comment on the was said to be

evidence. objections rulings

After were made on granted, appellant requested relief we stated in West v.

no further relief. As

Commonwealth, Ky., 780 S.W.2d “duty make party is under a to the court the action he desires

‘known objection the action of take or his

court to comply this court....’ Failure to unpreserved.” an error See

rule renders request In of a RCr 9.22. the absence

also relief, it must be assumed

for further grant- with the relief

appellant was satisfied

ed, complain. cannot now be heard to and he reasons, foregoing

For the Circuit Court

and sentence of the Jefferson

is affirmed. COOPER, J., concur, except

All only. in result

concurs INSURANCE

NATIONWIDE MUTUAL

COMPANY, Appellant, FARM AUTOMOBILE STATE Bartenstein, & Pe- H. MacKenzie Edward COMPANY, INSURANCE Louisville, den, P.S.C., Appellant. Appellee. Karem, McGlincy, Sitlinger, P. Edmund No. 96-SC-558-DG. Louisville, Karem, Steiner, Ap- Theiler & Kentucky. Supreme Court pellee. May 1998. STUMBO, Justice. Rehearing Sept. Denied is an presents an issue ease This an under- requiring of the doctrine

extension carrier, in order motorist insurance insured right, to substi- payment for that tute its *2 See, Co., Ky., it settling the where carrier for tortfeasor. Co., Ky., Allstate Ins. 853 S.W.2d 895 is noted v.. that: (1993). Here, the motorist car- underinsured right subrogation cannot be absolute [T]he (UIM), rier Mutual Insurance Nationwide it inimical to because in some instances (hereinafter “Nationwide”), Company substi- right the of the UIM insured to settle $50,000 amount tuted its for the same offered his insurer for the tortfeasor and by in settlement the State because, policy This is so be- the limits. (here- Company Farm Automobile Insurance policy making payment of the fore such Farm”). the inafter “State case was routinely limits the tortfeasor’s will $26,- jury, only submitted it awarded eases, demand, present done the as was $26,638, damages. Of this Nationwide fu- full and indemnification release statutorily in basic was liable for the the ture claims (BRB) reparation under the Motor benefits Indeed the carrier’s UIM carrier. (MVRA). Reparations Act See KRS Vehicle obligation defend in to its own insured to 304.39-040(1). 304.39-020(2); KRS Nation- good requires it a faith that extract such $50,000, sought to the wide recover entire release than leave own insured rather its Farm, substitution, of its from amount unprotected.... only was the but instead allowed amount jury the awarded in excess of Nation- accomplish is to its liability $16,683. wide’s BRB The — by the purpose remedial as intended Appeals accepted affirmed and we discretion- MVRA, sub- the UIM carrier’s contractual ary review. rogation must not the UIM right obstruct The Appeals Court of framed the policy lim- right insured’s to settle question presented as follows: “Who bears releasing subrogation. its even if it means overpayment plain the risk of between the Here, right of the was insured to settle tiffs underinsured earner motorist and the indeed, with, facilitated interfered was earlier, the plain tortfeasor’s when payment of the substitution tiffs underinsured motorist carrier has sub matter UIM carrier. It was when the payment proposed stituted of a settlement to to trial that the actual of the went amount subrogation rights its and a due the was deter- plaintiff awards less than amount of “overpayment” mined discovered. proposed settlement?” affirming judg- reaching In its decision argues Nationwide been has unfair- court, Appeals ment of the trial Court of ly penalized making the substitution as system up by noted set the Coots preserve subrogation rights, its accomplishes purposes decision remedial case, it had no at all in this because plaintiff can receive of MVRA that fact that could not be determined until the the amount of the tortfeasor’s litigation complete. Nation- from carrier or from the either argument It was wide’s is two-fold: not Na- having judg- UIM carrier without obtain $50,000; claim at tionwide valued this ment. has an incentive to The tortfeasor rather, it was State Farm who made that settle, obtain a release from that he determination, forcing thus Nationwide to liability, further and the tortfeasor’s preserve the funds to its contractual advance protects earner itself from bad faith action subrogation. right deny To Nationwide making The the offer for limits. recovery advanced is proceed against plaintiff can then exercising punish right Nationwide its carrier and the UIM can deny pursuant right To contract. right subrogation. seek when no substitution is deny made is also to In it is the carrier that holding that litigate whether benefits are due at all. overpaying plain- should bear the risk tiff, doing so the Court of stated that requiring The basis substitution encourages in- explained carrier to make an Coots Allstate Ins. as to that assessment when the time to formed decision whether bound rights simply illusory. assert arrives. We are valuable Since appraisal policy argu- payable only believe that this UIM benefits are when by the ments behind the decision rendered liability exceeds the tortfeasor’s *3 logical. and lower court is both accurate policy carrier must the UIM deter- plaintiff’s mine the value of the claim and the contends, without citation to potential value of the claim when any authority, that because Sate Farm evalu- liability policy carrier has offered the policy limits ated the claim and offered determine, The carrier must limits. UIM settlement, Farm should be the one to payment, strength before it of substitutes argument pay the settlement amount. This claim, plaintiffs plain- the extent of the superficial appeal, has some but does not damages being and the likelihood of tiffs take factors into account the non-finaneial reimbursed the tortfeasor for UIM bene- liability that a carrier must consider arriv- appropriate fits. It is that these matters be figure. ing at a settlement While the UIM fully it examined the UIM carrier before primarily on the actual carrier can focus settlement, and it interferes with a should do injured party, suffered so when finds those insured, and whether is after all UIM’s truly to be valuable. upon, coverage likely to be called its own is liability keep must in mind its Ap- correctly As noted the Court of obligation vigorously defend the tortfeasor peals, of a substitution the UIM the potential per- exposing its client to without truly amount offered in settlement does not liability. Factors such as whether the sonal in a settlement. The tortfeasor re- result hable, the likely tortfeasor is to be found position potential mains in a of ability testify wheth- of the tortfeasor to and exceed the amount of should good make witness as er he or she will his limits. Further should the tortfea- sympathy opposed to the trial, settle, going sor refuse to instead jury, in a and the extent of the could evoke could absolve him or her of personal property and other obli- adjudge the to be less than the gations be at risk if a trial which could Thus, limits. if the carrier can substi- UIM ensues, liability carri- pertinent are all risk, payment without then the tort- tute Thus, to settle. er’s decision whether may position if he does feasor be a better to make an offer carrier’s decision make a offer at all to the not settlement depend solely on the economic fac- does not plaintiff. risk of a bad decision on With the provable damages. tor of carrier, carrier is forced make an decision and a realistic informed consider While the UIM carrier will also Further, pro- assessment of the offer. evaluating same factors in the settlement finality plaintiff and the motes between the carrier, it has the cushion offer when the UIM carrier decides that pay- if of it decides to substitute Finally, subrogation right has no value. ment, certainty knowing as well as Appeals placing concluded that Court award that there will have to be substantial also the risk of loss on the UIM carrier Again, at each its own is risk. before simplified cover- the determination independent respon- carrier has an insurance decided, age. the issue of is Once sibility duty insured. The to its own remaining amount of only question is the evaluating by each in factors considered expense damages. the time and Hence similar, figure may be but the subsequent proceedings will also be re- coverage is differ- function of the insurance duced. and what be a reasonable settlement ent for the for one carrier will be unreasonable analyzed, it is clear that other. carri Appeals decided that the UIM Court argued that there is a destiny: if it Nationwide has also its own er must determine due-process rights under both violation of its substitute based on chooses to Kentucky and States Constitu- it is United risk evaluation of the injured tions, coverage primarily liable for the access to the as well as its to free injured party’s party’s damages, guaranteed 14 of the Ken- courts Section payable only if tucky We those dam- Constitution. decline address however, issues, ages since it the limits of the tortfeasor’s these Constitutional exceed they properly pre- appears that were not the trial or the served either court Court 304.39-320(2) enacted, originally As KRS thus, and, preserved are following provision: contained the our review. compa- His insurance [the insured’s] opinion, For the set forth in this reasons ny subrogated any amount it so shall be hereby

we affirm the decision of an pays, upon payment shall have *4 Appeals. assignment against judgment of the the the of the party other to extent JOHNSTONE, LAMBERT, pays. WINTERSHEIMER, JJ., concur. in That was 1990. 1990 sentence deleted COOPER, J., separate opinion, by dissents 103, However, in Ky.Acts, it was held ch. STEPHENS, C.J., GRAVES, in which Co., Ky., Ins. 853 Coots v. Allstate S.W.2d J., join. (1993) 895, 901 that the UIM carrier retained subrogation its and common law contractual COOPER, Justice, dissenting. indemnity the against claim tortfeasor for self-insurer, qualified as a every not exposed had it to negligence whose Kentucky of owner a motor vehicle in by damages its insured. See sustained required provide tort to insurance Co., Pittsburgh Fuel Brown Co. v. 311 Hotel coverage for that vehicle minimum lim with (1949). 396, 165, 168 Ky. 224 S.W.2d .39-110(1). its established KRS 304 KRS 304.39-080(5). 304.39-010(1); that KRS Under Coots also held was liability coverage provisions judgment against required of the not to a own obtain policy, agrees pay, up er’s to to in to a claim order coverage pur coverage policy. maximum limits of of his own chased, any damages negotiate another He a limits caused to be could settlement negligence any abrogating cause of of with the owner the tortfeasor without operating coverage, long one with UIM so as he notified the insured vehicle permission. Additionally, “pro- owner’s an of his to do so and owner UIM carrier intent Kentucky may purchase protect of a motor in an to opportunity vehicle vided the carrier (UIM) 900, coverage rights.” motorist its Id. at overrul- underinsured agrees pay, up ing Kentucky Kempf, the insurer to Central Ins. Co. v. which to (1991). course, coverage purchased, Ky.App., maximum limits of the S.W.2d 829 Of 813 incurred the owner as a the carrier’s needed no right in- negligence operator protection. of “The common law of result vehicle, demnity jural right prior to the that such a which existed another extent dam our ages adoption maximum limits of Constitution and exceed the abolished_” Kentucky not be Util. Co. v. provided the other vehicle. R.E.C.C., 304.39-320(2). County Ky., 438 Conceptually, the Jackson S.W.2d KRS (1968). 788, impaired. it be right pur to 790 Nor can statute affords an insured the Wilson, 260, 261 liability coverage Ky., 972 S.W.2d the ve Williams v. chase additional (1998). Nevertheless, it was held in prospective hicle of a underinsured tortfea Ass’n, jural protect right LaFrange Auto. order its sor. v. United Serv. (1985). indemnity, the UIM carrier must substitute Ky., 700 414 KRS S.W.2d 304.39-320(2) money for amount offered specifically provides that UIM its own the tortfeasor’s coverage applies to the extent “the settlement to insured Thus, had if the tortfeasor the owner of the insurer. recovered liability coverage liability policy lim- one million dollars other vehicle exceeds $50,000 Thus, injured party had of UIM cover- its thereon.” tortfeasor’s 60

age, willing pay place. By making and if the carrier for the tortfea- the first settlement, settlement, liabiHty sor offered its limits the offer of required pay eHminating would be one UIM carrier obtained the additional benefit of money in premised million dollars of own substitu- any possible upon claim “bad settlement, proposed tion for a which it did faith.” See State Farm Mut. Auto. Ins. Co. owe, jural Reeder, right (1988); Ky., order S.W.2d Man subsequently Grundy, Ky., the event was chester Ins. & Indem. Co. v. denied, pay cert. U.S. requirement would seem to substan- Such 97 S.Ct. 50 L.Ed.2d 82 Al tially impair jural right of though the' UIM carrier’s procedure the Coots leaves the tort- indemnity. unprotected against potential liability feasor for the carrier’s claim for course, about Of Coots was not concerned indemnity, position that is the same he would jural rights It UIM carriers. Coots, assuming have been in without designing procedure concerned UIM carrier declined to waive its injured party in tort could which an action And, course, indemnity. the tortfeasor is receive the amount offered no worse off than he would have been if the liability insurer and still retain *5 plaintiff purchased coverage. had not (The claim his UIM his own insurer. event, In that the tortfeasor would have been necessarily carrier’s settlement offer personaHy plaintiff any judg- liable upon receipt would be conditioned of a re- of his ment excess of the limits indemnity agreement lease and in favor of its Clothier, supra, Even Schmidt v. Coots, insured, supra, at 901. the tortfeasor.. precedent relied on Coots the- However, agreement execution of such an that, procedure, as be- substitution holds require injured party indemnify would to tween the carrier and the underinsured the tortfeasor amounts which the tortfeasor, equities in favor of balance subsequently might pay have to to at 262-63. the UIM carrier. 338 N.W.2d indemnify effectively thus abrogating the UIM claim. The substitution always The law this Commonwealth has procedure pocket allows the to involuntarily party pays the been that a who executing a re- settlement offer without of action to debt of another has a cause agreement.) lease and How- indemnification payment E.g., recover that from the debtor. ever, contemplate did Coots (3 Keith, Armstrong’s Ky. 26 Adm’r v. J.J. ultimately recoup the substitut- carrier would Marsh.) (1830). pays such a 153 One payment. ed security protect debt in order to his own could substitute its [T]he underinsurer voluntarily. legal does not act Cf. payment equal to the insured an amount Kentucky, Corp. C.I.T. v. Studebaker Sales of to the tentative settlement. In this situa- 84, Ky. tion, payment would the underinsurer’s jural protect forced to the UIM insurer is protect its to the extent indemnity by advancing money to right of payment the insured would pay offer made the tortfea- a settlement receive the amount of the settlement of- insurer, such can sor’s fered cash. hardly voluntary. is it be viewed as Nor Clothier, 902, quoting, v. Id. at Schmidt arguable to settle for that State Farm’s offer (Minn.1983) (emphasis add- N.W.2d enforceable. The offer was was not ed). Thus, ultimately carrier would plaintiff clearly ac- never withdrawn and the (through his be indemnified the tortfeasor it; otherwise, been cepted there would have carrier) the extent of the substi- to mon- no need for to substitute its payment. logic support Both law tuted ey for ^resettlement. Whether denominated this result. assumpsit, an action as the ancient action money paid, impHed for restitution of or an

Logic requires that carrier enrichment, unjust ultimately premised upon pay the settlement for which its contract to primarily and which it was the UIM carrier is entitled from Hable

fil pay- liability carrier for its substituted GRAY, ment. Administratrix of Rebecca Lozano, Troy R. Estate Nevertheless, any au- citation to no Appellant, Coots, thority majority except swpra, the Nationwide, today this Court holds money pay forced to which was Kentucky, TRANS- COMMONWEALTH which not owe in order did CABINET, DEPART- PORTATION jural right indemnity, recoup that cannot HIGHWAYS; and Common- MENT OF jury payment simply because the determined Kentucky, Board wealth of Claims plaintiff that the was entitled less Appellees. willing pay Farm to settle than State No. 96-CA-1504-MR. her This result allows the case. shift the risk of a verdict Kentucky. Court of coverage to insured from its own Nov. the UTM carrier. the verdict exceeds its limits, insurer loses noth- Discretionary Review Denied ing willing pay it was in settle- than more 8, 1998. by Supreme April any possible avoids faith” ment and “bad claim. If the verdict is less than its pays only the ver- carrier, which

dict and the UIM otherwise nothing, pay

would owe between the verdict and the liabili-

difference

ty unjust offer. This carrier’s settlement inequitable

and never intended result was contrary

Coots and is to two centuries respect

Kentucky common law

issues of and restitution. reasons, respectfully

For these I dissent reverse remand case to would this Shelby Circuit Court with directions permitted

Nationwide be to file its amended

complaint and that it be awarded $60,000.00, Farm in the sum State $50,000.00

representing the reimbursement Farm’s substituted offer, $10,000.00 plus reimburse- reparation paid

ment for benefits basic 304.39-070(3);

insured. KRS Ohio Sec. Ins. Dmry, Ky.App., 582 S.W.2d 64

Co. C.J., J.,

STEPHENS, GRAVES, join dissenting opinion.

this