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Fickbohm v. St. Paul Insurance Company12/23/2002
inimums for uninsured motorist coverage).
We are similarly unpersuaded by Plaintiffs' contention that the offset should not be permitted because subrogation would have required St. Paul to pay its proportionate share of attorney fees and costs and thus it would have received less than the full $5000 it received via the offset if the tortfeasor was fully insured. This argument is based on a faulty premise-that what an insured should obtain from an insurer is controlled by what the insurer would obtain in subrogation. In contrast, the correct analysis is as follows: Plaintiffs were insured, and they received their full measure of damages from St. Paul (and the tortfeasor's insurance in the case of Fickbohm). That is what they paid for and that is what they received. They have no right to anything else, regardless of what might have been the case if St. Paul would have had to exercise subrogation rights. Plaintiffs' rights to insurance recovery are independent of what the insurance company is entitled to recover in other proceedings and in other contexts.
C. Fickbohm Waiver Issue
Fickbohm raises one additional argument, arguing that St. Paul waived its right to offset medpay against UIM when it, by letter, waived its right of subrogation against the tortfeasor. We believe this waiver letter only applies to St. Paul's right of subrogation against the tortfeasor and should not be read to encompass a waiver of the contractual offset provision between the medpay and UIM coverage. The same issue was resolved in Safeco Insurance Co. v. Woodley, 8 P.3d 304 (Wash. Ct. App. 2000). There the court found that the waiver letter simply confirmed the insurance company's intent to waive its PIP subrogation lien as a result of the tortfeasors' payment of their full liability limits, but did not address the insurance company's right to reduce the UIM award. The court did not think the letter constituted evidence that Safeco intended to waive its right to take the UIM offsets, but instead found the letter to be "consistent with Safeco's attempt to recover the PIP payments through a UIM offset, rather than from the liability settlement." Id. at 308-309.
D. St. Paul's Responsibility for Attorney's Fees and Costs Plaintiffs argue that they should be entitled to attorney fees and costs if they prevail. However, since we have ruled against them, their claim fails.
CONCLUSION
Summary judgment in favor of St. Paul in each case is affirmed.
IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
LYNN PICKARD, Judge
RODERICK T. KENNEDY, Judge
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