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Abbott v. Blount County8/9/2005
party. Blount County asserts the Abbotts did not inform it of their cause of action or seek its consent to an out-of-court settlement. Additionally, Blount County directs our attention to correspondence from the Abbotts' legal counsel to the administrator of Blount County's benefit plan in which the Abbotts' counsel inquired whether Blount County would be willing to come to some agreement regarding the Abbotts' obligation to reimburse the benefit plan. There is no evidence in the record that the Abbotts provided Blount County with written notice of their cause of action or settlement negotiations before they agreed to the settlement, and the record does not demonstrate that Blount County had actual notice of either. Certainly, an assertion that an insurer should know, in light of the gravity of the injuries, that its injured insured may, at some time within the statutory period, commence a cause of action is not proof that the insurer waived its subrogation claim. Genuine issues of material fact exist regarding whether Blount County had notice, written or actual, of the Abbotts' cause of action and waived its subrogation rights.
Holding
Genuine issues of material fact exist in this case regarding whether Blount County had notice of the Abbotts' cause of action against the third-party tortfeasors and, if so, waived its claim to subrogation. Genuine issues of material fact also exist regarding whether Ms. Abbott was made whole by the total amount paid by Blount County and recovered in the settlement. Accordingly, we reverse the award of summary judgment to the Abbotts. We remand this case for further proceedings consistent with this opinion. Costs of this appeal are taxed to the Appellees, Shelby Abbott and Charles Abbott.
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