332 N.C. 135 | N.C. | 1992
The defendant contends that the dismissal with prejudice of Mrs. Sargeant’s Watauga County case against the defendant extinguished as a matter of law all claims against the defendant arising from the 21 March 1988 accident, whether such claims were asserted on behalf of Mrs. Sargeant or her subrogee, State Farm. The defendant argues that Mrs. Sargeant and State Farm were entitled to bring only one civil action against the defendant for Sargeant’s injuries. By participating in the dismissal with prejudice of Sargeant’s claim, State Farm had its subrogation rights extinguished. The defendant contends that State Farm has no right and no claim beyond that possessed by Mrs. Sargeant. We disagree.
N.C.G.S. § 20-279.21(b)(4) provides in pertinent part:
An underinsured motorist insurer may at its option, upon a claim pursuant to underinsured motorist coverage, pay moneys without there having first been an exhaustion of the liability insurance policy covering the ownership, use, and maintenance of the underinsured highway vehicle. In the event of such payment, the underinsured motorist insurer shall be either: (a) entitled to receive by assignment from the claimant any right or (b) subrogated to the claimant’s right regarding any claim the claimant has or had against the owner, operator, or maintainer of the underinsured highway vehicle, .... No insurer shall exercise any right of subrogation . . . where the insurer has been provided with written notice in advance of a settlement between its insured and the underinsured motorist and the insurer fails to advance a payment to the insured in an amount equal to the tentative settlement within 30 days following receipt of such notice. Further, the insurer shall have the right, at its election, to pursue its claim by assignment or subrogation in the name of the claimant, and the insurer shall not be denominated as a party in its own name except upon its own election.
Here, State Farm preserved its subrogation rights against the defendant by pursuing this claim in the manner as set forth in N.C.G.S. § 20-279.21(b)(4). On 24 April 1989, State Farm advanced $50,000, the amount of Nationwide’s liability limits, to Mrs. Sargeant to protect its subrogation interests. On 6 November 1989, it advanced an additional $50,000 to settle the underinsured motorist
By complying with the express terms of the statute, State Farm had the absolute right to pursue “any claim” against the defendant that Mrs. Sargeant “has or had.” It was not necessary for State Farm to prosecute the Watauga County action in Mrs. Sargeant’s name, nor was it necessary that that action remain pending for State Farm to pursue a recovery. It is clear under N.C.G.S. § 20-279.21(b)(4) that once the advancement is made and the underinsured claim is settled prior to exhaustion of the primary policy limits, the underinsured motorist carrier is pursuing “its claim” and not that of the insured. The underinsured motorist carrier is not required to be designated as a party plaintiff “except upon its own election.” State Farm has elected to pursue its claim in its own name as provided by the statute.
In conjunction with the settlement of the underinsured motorist claim, State Farm obtained a release from Mrs. Sargeant discharging State Farm from any claims Mrs. Sargeant had against State Farm. This release discharged State Farm only, not Nationwide. The release also acknowledged State Farm’s subrogation rights and assigned to it (to the extent of its payment) all of Sargeant’s claims against Blackwelder’s estate. Sargeant further agreed that any claims of State Farm pertaining to the accident could be presented in her name or in State Farm’s name. Thus, State Farm had the absolute statutory right to pursue a claim against the defendant in the amount of $50,000, the amount of its underinsured payment. As both defendant and Nationwide had knowledge of State Farm’s subrogation rights, they could not defeat State Farm’s rights by any subsequent release from Mrs. Sargeant.
Mrs. Sargeant’s dismissal did not terminate State Farm’s subrogated claim because the claim against the defendant had already passed to State Farm by operation of law. The right to recover from the defendant was and is still vested in State Farm and by statute, State Farm may pursue “its claim” in its own name “at its election.” Mrs. Sargeant could not dismiss, release, or waive State Farm’s right to recover as she does not possess such right.
The defendant relies on several cases which it says establish the proposition that subrogation is based on equitable principles and a subrogee stands in the shoes of the subrogor. See Insurance Co. v. Faulkner, 259 N.C. 317, 130 S.E.2d 645 (1963); Montsinger
The defendant also contends that the claim against him is barred under N.C.G.S. § 28A-19-3(b) which provides in part:
All claims against a decedent’s estate which arise at or after the death of the decedent, . . . are forever barred against the estate, . . . unless presented to the personal representative ... as follows:
(2) With respect to any claim other than a claim based on a contract with the personal representative or collector, within six months after the date on which the claim arises.
In this case the testate lived for twenty-four hours after the accident from which the claim arose. The claim arose before the death of Mr. Blackwelder and the claim is not barred by this section.
Having followed the statutory procedures in N.C.G.S. § 20-279.21(b)(4), State Farm is entitled to pursue its claim against the defendant.
Affirmed.
