 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Connelly v. McVeigh1/7/2005
es that it has reached a verdict. Moreover, the September 29, 2003 Law Division order, which allowed Allstate to withdraw its previously deposited $100,000, met the procedural safeguards of the court rule.
We also find no support for NJM's contention that a constructive trust should have been imposed on the $100,000 it was required to pay to plaintiff, because"plaintiff was unjustly enriched thereby." NJM got exactly what it bargained for in its Agreement with Connelly: preservation of its subrogation claim against McVeigh, in exchange for guaranteeing Connelly the settlement he was forced to turn down. Connelly did not get a windfall; he would have accepted and received $100,000 from Allstate and been free of the risks of trial against McVeigh but for NJM's refusal to consent to the settlement offer.
NJM admits that"because [McVeigh] had substantial assets and income, NJM objected to the plaintiff, its insured, accepting the offer and giving a release." But NJM argues that"plaintiff and his attorneys opted to pursue the case to conclusion by trial in accordance with Zirger [v. Gen. Accident Ins. Co., 144 N.J. 327 (1996)], while at the same time insisting on plaintiff's right to'prepayment' of $100,000 pursuant to Longworth." Elsewhere in its brief NJM admits that Connelly sought less than his $300,000 UIM policy limit to resolve his damages claim. There is no dispute that plaintiff's settlement demand was never more than $200,000 and was reduced further during the course of the trial. Logically, then, there was no advantage and no motivation for plaintiff to reject the Allstate settlement offer in favor of a trial against both McVeigh and NJM. The only rational basis for a plaintiff in Connelly's position to reject the offered policy limit is if his anticipated damages exceed his available UIM coverage. To the contrary, plaintiff here was forced to try his case against McVeigh only because NJM refused to consent to the Allstate settlement offer.
Longworth established procedures to address the interrelationship between conflicting provisions contained in typical underinsured motorist policies, specifically, the exhaustion, consent-to-settle, and subrogation clauses. Longworth, supra, 223 N.J. Super. at 176. After detailing the history of statutory underinsured insurance protection, this court noted the impediment to settlement of the underlying negligence action arising from the conflict between the duty of a tortfeasor's liability insurer to obtain a general release as a condition for settlement, and the injured party's duty to preserve its own UIM carrier's subrogation rights where a general release would impair those rights. Id. at 190. See generally Craig & Pomeroy, New Jersey Auto Insurance Law, ยง28:3 (2005).
In Vassas, supra, the Supreme Court held that the insured was barred from pursuing UIM coverage because it had failed to protect its UIM carrier's subrogation rights by settling its claim against the tortfeasor without notice to the UIM carrier. Nonetheless, the Court took the opportunity to"essentially" adopt the Longworth procedures. 139 N.J. at 171.
Under Longworth and Vassas, an injured party who anticipates that his damages may exceed the tortfeasor's coverage, and who also anticipates a claim against its own UIM carrier, has a duty to notify that carrier of the happening of the accident and his injuries, of any claim against an alleged tortfeasor, of the nature and extent of the tortfeasor's insurance coverage, and of the progress of any proceeding against the tortfeasor. If a settlement offer is received on behalf of the tortfeasor, the injured party must notify his UIM carrier and obtain its consent before accepting a settlement that
Page 1 2 3 4 5 6 New Jersey Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|