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Earle v. Cobb12/16/2004
. LaFrange v. United Serv. Auto. Assn, 700 S.W.2d 411, 414 (1985). Canady further noted that in a UIM case, the tort defendant generally has counsel provided by the liability insurer, so there is no need for the UIM carrier to participate, whereas in a UM case, the tortfeasor often does not have private counsel, so the UM carrier has no choice but to actively participate to protect its interests. See Canadv, 475 S.E.2d at 112 n.8. All of these points contradict the majority opinion's reasoning in the case sub judice.
Lima v. Chambers, 657 P.2d 279 (Utah 1982), was similar to Canadv in that a UM carrier had unsuccessfully sought to intervene and defend in its own name a tort action brought by its insured against an uninsured motorist. The plaintiff did not sue the UM carrier and had obtained an uncounselled affidavit from the defendant in which he admitted liability. The plaintiff had used this affidavit to obtain a summary judgment on the issue of liability. The UM carrier sought to intervene to defend against the issue of damages, arguing that the defendant was unrepresented and unlikely to provide an adequate defense to the issue. The plaintiff asserted that its relationship to the UM carrier was contractual, i.e., the UM carrier was obligated to pay any judgment obtained against the uninsured motorist, but had no right to participate in the plaintiff's tort action. Id. at 280. Relying on Utah's equivalent of CR 24.01, Lima held that the UM carrier could intervene as a matter of right, overruling two prior cases holding otherwise. Id. at 284. Those prior cases had held that a UM carrier could not be a party to a tort action against an uninsured motorist because of the prejudice resulting from the interjection of insurance into the case. Kesler v. Tate, 502 P.2d 565, 566 (Utah 1972) (denying intervention) ; Christenson v. Peterson, 483 P.2d 447, 448 (Utah 1971) (denying joinder).
In Tucker v. McQuery, 736 N.E.2d 574 (Ohio Com. Pl. 1999), the tortfeasor was no longer a party to the action, so the UIM carrier was the only party in interest. Id. at 575 n.1.
In Lamz v. Geico General Insurance Co., 803 So.2d 593 (Fla. 2001), the Court noted that "Geico [the UIM carrier] participated at trial as a party defendant, represented by its own attorney," id. at 594, and held that the "jury should be made aware of the precise identity of an uninsured or underinsured insurance carrier if it is a party at trial." Id. at 595 (emphasis added). Thus, Lamz, like King v. State Farm, was factually akin to Wheeler v. Creekmore, but bore no factual resemblance to the case sub iudice.
Medina v. Peralta, 724 So. 2d 1188 (Fla. 1999), indeed held that the UM/UIM carrier must be joined as a party and identified specifically to the jury by its status as a UM or UIM carrier. Id. at 1190. However, that case turned on the fact that under Florida law, a UM/UIM carrier is a "necessary party" to the action. Id. (citing Government Employees Ins. Co. v. Krawzak, 675 So. 2d 115, 118 n.3 (Fla. 1996), which held that a 1992 amendment of Fla. Stat. Ann. ยง 627.727(6) required that an action for UIM coverage be brought solely against the UIM insurer). Under Kentucky law, a UIM carrier is a real party in interest to an action against an underinsured motorist but is not a "necessary party" to such an action. See CR 19.01. While an action must be prosecuted by a real party in interest, CR 17.01, no provision requires that an action be prosecuted against or defended by a real party in interest - especially where that interest is identical at trial to that of another real party in interest who is providing an adequate defense. I would note in passing that the Court in Medina v. Peralta did not address what, if any, pre
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