*1 OF APPEALS COURT 646 v. Mutual Ins. Co. Parrish Grain Dealers one knowing as have been described terms “wanton and willful” indifferently but acting of his actions consequences probable Co., 238 v. N.C. Railroad Wagoner actions. to the outcome his 701, 705-06 77 S.E. conduct amounted that defendants’ We find no evidence is no that defendant There evidence or negligence. willful wanton There was evi- plaintiff. to hurt or intended Reid Wilson desired rotten where the hand- knew the wood was defendant dence that this condition step. Knowledge to the bottom rail was attached It been unreasonable for not rise to recklessness. have people or warn repair either fail handrail ordinary negli- is a its condition. Reasonableness standard poor 187, 193, 154 S.E. 2d 312 Stallings, v. 270 N.C. Watson gence. (1967). negligence, Finding no evidence willful wanton summary for de- correctly granted the trial court hold court’s order is The trial fendants.
Affirmed. Eagles Smith concur.
Judges DEALERS MUTUAL INSURANCE COMPANY PARRISH DONNA B. GRAIN
No. 8710SC422 (Filed 1988) July 5 injured party’s §69— settlement with underinsurance Insurance automobile claim — not barred tort feasor —claim longer no claim was barred because she was Plaintiffs damages of the tort and was barred legally to recover feasor extent, only if to the without defendant insurer’s consent made settlement any, subrogation rights prejudiced. that defendant’s concurring. Judge Greene 2 Judge. entered Hight, Orders by plaintiff APPEAL Court, County. Heard Superior April
April Wake 1987. Appeals October in the Court N.C.App.] COURT OF APPEALS y. Grain Dealers Mutual Ins. *2 Plaintiff, who seriously injured by was settled with an and motorist, brought this action for underinsured underinsurance the of the provisions liability policy benefits under insurance for car defendant issued the she was in. denied riding Defendant affidavits, coverage and in which following hearing policy other by and documents submitted order of parties, an summary judgment entered dismissing plaintiffs pur- was to of of suant Rule Procedure. Rules Civil .the The to presented following materials the court established the un- contradicted facts: 17 August
On while a passenger vehicle covered $100,000 by which policy, liability defendant’s had limits of per for person each accident and coverage tied to limits, plaintiff those seriously injured when a vehi- speeding operated cle L. on Reginald Ligón the wrong side of the road her attorney’s struck vehicle. After her investigation indicated on, had no Ligón personal assets that on could be levied August against claim him was settled his auto car- rier, American Mutual Fire Insurance for Company, policy his $25,000 limits of per person each accident. thereto Incident on plaintiff signed styled a release a standard form insurance Claims,” which “Release All provi- contained following sions: That the Undersigned, being age, lawful the sole $25,000.00 release,
consideration of . . . . . . hereby . . . and forever acquit discharge Reginald Ligón ... and any whatsoever, and all . . . claims undersigned which the now or has ... which may hereafter accrue on account . . . . the accident . . which occurred on or day about the 17 or August Raleigh at near NC. Before the settlement there was no contact between plaintiff defendant, on day but the same settlement was made collision, attorney wrote defendant and informed it of the plain- $25,000 settlement, tiffs injuries, and of her claim against coverage underinsured motorist of its to responding letter coverage defendant denied for the reasons later stated its answer. involved,
The policy conditions, to subject its limits and other requires to pay “all sums is legally OF APPEALS COURT Ins. v. Grain Mutual Dealers recover as from the owner or driver” of other damages liability or
vehicle after all bonds “have been applicable policies it un- judgment or states that payments”; exhausted [a]ny “does not . . . claim settled without apply derinsurance policy consent.” The further that: provides our any If we to recover we payment, we make are entitled what Any from other for whom make paid parties. person recovery rights must his or her transfer us do any everything This must party. person other necessary to these and must do nothing secure them. jeopardize would *3 may brought be us until has legal against
No there with all the terms of this compliance policy. been full Johnny plaintiff appellant. Gaskins S.
Patterson, Cranfill, Dilthey, Clay, by & Hartzog, Sumner Holland, appellee. Patricia L.
PHILLIPS, Judge. materially in case are not different from those
The facts
this
Company,
Horace Mann Insurance
in
v.
90 N.C.
recorded
Silvers
(1988),
where this same
that
panel
Vacated and remanded.
Judges and Greene concur. Becton
Judge concurring. GREENE
I disagree majority’s with the holding that the facts of this materially case are not different from the in Silvers facts Co., (1988). Horace Mann Ins. 90 N.C. App. S.E. First, Silvers, I note that unlike present in the case release given to the underinsured tortfeasor contained no However, reservation of a of action right insurer. as insurer does not raise on the lack of appeal a reservation as a action, bar the insured’s issue whether such a reserva- tion was required need not be addressed.
Second, Silvers, unlike case Grain present Dealers had right subrogated be to the insured’s right action once it Milwaukee made to the insured. See Ins. Co. v. McLean Co., 721, 726, Trucking 256 N.C. 125 S.E. 2d Silvers, specifically insurer waived right this to be case, subrogated present In the the insured destroyed Grain right subrogated by Dealers’ to be settling with executing the tortfeasor and a release.
However, I
agree
majority
do
with that the insurer’s loss
*4
its
not
right
subrogated
of
be
itself bar the insured’s
instances,
many
for
pursuit
claim
underinsurance benefits.
of a
subrogation
claim
an underinsured
tortfeasor
is futile
Widiss,
of the
status of the tortfeasor. 2 A.
Un-
because
financial
(2d
and
Insurance
Underinsured Motorist
Sec. 43.5 at 122
1987). A
illusory
subrogation
ed.
and
“loss”
technical
should not result
forfeiture
underinsurance benefits. See
(Fla.
Earnest,
230,
Fidelity Ins. Co.
Southeastern
395 So. 2d
231
1981); see
Dist.
also Prudential
and Cas. Ins.
Property
3d
Ct. App.
(E.D.
1984).
v. Nayerahamadi,
593 F.
216
Pa.
Supp.
Therefore,
inquiry
whether
becomes
destruction
prejudiced
the insurer’s
to be
the insurer to the
right
subrogated
on
may
complete
it
avoid
partial
extent
in ac-
Insurance
should be construed
contract
expectations
with
with the reasonable
cord
their
and
purposes
Co.,
Co. v. Tate
Great American Ins.
Const.
303
parties.
See
APPEALS
650
COURT OF
Union National Bank v. Richards
First
769,
2d
The Great American
S.E.
a policy
requiring
breach of
provision
held that an insured’s
Court
obligations
not relieve the insurer of its
notice of an accident did
provision operated
violation of
notice
policy
under the
unless
Id. at
279 S.E.
at 771.
materially
the insurer.
prejudice
in
Supreme
opinion
with the
Court’s
Accordingly,
keeping
in
American,
and
burden
place
I would remand this case
Great
materially prejudiced
been
it has
prove
on the insurer
398, 279 S.E. 2d at
See id. at
subrogation rights.
the loss of its
in
factors that
be considered
decid-
775.
the relevant
Among
materially
has
are the
prejudiced
the insurer
been
ing whether
tortfeasor,
under-
assets
the underinsured
potential
future,
present
obtain assets
and the
insured tortfeasor
earning capacity
Compare
the tortfeasor.
Southeast-
future
(insurer
2d at 330-31
re-
Fidelity,
prejudiced
ern
So.
judgment
where she was completely
proof)
lease of tortfeasor
(Fla.
Accident Ins. Co. v.