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Laravie v. Battle Creek Mutual Insurance Co.8/23/2005
ber 10, 2001, letter can substitute in any way for the contractually required notice that Laravie has sued Banks to get at Battle Creek's underinsured motorist coverage.
With all due respect, I suggest that my colleagues do not appreciate that the $25,000 payment by American Family has little to do with what follows next with respect to Battle Creek's underinsured motorist coverage. I make this statement in the context that the December 10, 2001, letter relied upon by my colleagues mentions nothing about the condition which triggers § 44-6412(2): "If a tentative agreement to settle for liability limits has been reached with the owner or operator of an underinsured motor vehicle . . . ."
In any event, putting aside Laravie's counsel's failure to provide proper § 44-6412(2) notice, I turn to what occurs after Laravie collects Banks' policy limits from American Family. The next step is Laravie's attempt to tap her underinsured motorist coverage provided by her own insurer, Battle Creek. She must do this, absent settlement, by filing suit to prove that Banks was negligent and caused her damages in excess of the $25,000 she has already received from American Family. Obviously, Banks has "no dog in that fight," but Battle Creek certainly does, and my colleagues would make Banks' confession of judgment binding on Battle Creek, despite the clear failure of Laravie to comply with the policy prerequisites to access that coverage. Because Battle Creek is uniquely concerned with what happens after Banks settles with American Family, Battle Creek has provided itself with protective policy language--before Battle Creek has an obligation to pay, it must get reasonable notice of the pending suit and an opportunity to protect its interests in the Holt County lawsuit. And as a final catchall protective measure, Battle Creek's insured must "promptly end [Battle Creek] copies of the legal papers if a suit is brought." This was never done.
Finally, the most disturbing aspect of the majority's decision is that the judgment which will obligate Battle Creek to pay its $50,000 underinsured motorist coverage is not as a result of a trial on the merits of liability and damages but comes about by a confession of judgment from Banks and her counsel. Some might call this a "sweetheart deal" in light of the obvious failure to comply with the policy perquisites, remembering that in this action, Laravie seeks to bind Battle Creek to the confession of judgment when Battle Creek was totally unaware of what the two lawyers and the Holt County district court judge were doing in a lawsuit to which it was entitled notice, but did not receive. Obviously, an underinsured motorist insurer like Battle Creek wants to protect itself from a confession of judgment by a tort-feasor like Banks who has no real interest in the outcome of the action--and certainly not an interest similar to Battle Creek's. The policy provisions under discussion obviously are designed to provide such protection, and Laravie agreed to do such things in clear, plain English; however, the fact is that she and her lawyer did not do so. Battle Creek is entitled to have the straightforward language of its contracts enforced by the courts.
Much was made by the district court, by counsel at oral argument, and in the briefs regarding Battle Creek's failure to respond to the four communications from Laravie's counsel or to the settlement brochure. But, Battle Creek is entitled to stand quietly by and wait to see if Laravie decides that the American Family policy limits are inadequate and that she wishes to pursue the underinsured motorist coverage. Obviously, Battle Creek's silence is tantamount to a refusal of Laravie's demand for Battle Creek's po
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