Daughtry v. Castleberry
Daughtry v. Castleberry
Opinion of the Court
The trial court ruled USAA waived its subrogation rights under N.C. Gen. Stat. § 20-279.21(b)(4) by failing to advance the $100,000 tendered by Nationwide within 30 days of USAA’s receipt of the 14 May 1992 letter from Bob Harrelson advising that Nationwide was tendering its policy limits. Plaintiffs argue USAA was not required to advance the $100,000 within 30 days of receipt of the written notice because: 1) written notice of the settlement must come from the insured, not the liability carrier; and 2) the 30 day time limit does not begin to run until the UIM insured reaches a final settlement with the underinsured motorist. We disagree and affirm the order of the trial court.
Plaintiffs first contend written notice of the settlement offer must be made by the UIM insured to the UIM carrier. The statute governing subrogation rights of UIM carriers requires, in part, that:
No insurer shall exercise any right of subrogation or any right to approve settlement with the original owner, operator, or maintainer of the underinsured highway vehicle under a policy providing coverage against an underinsured motorist where the insurer has been provided with written notice before a settlement between its insured and the underinsured motorist and the insurer fails to advance a payment to the insured in an amount equal to the tentative settlement within 30 days following receipt of that notice.
G.S. 20-279.21(b)(4) (emphasis added). Although the better practice would be for the insured to notify the UIM carrier when the insured has received an acceptable offer from the liability carrier, there is nothing in the statute which requires written notice to the UIM insurer be made directly by the insured. The statute simply requires
In this case, USAA received written notice that Nationwide had offered its liability limit to plaintiffs by way of the 14 May 1992 letter sent by Nationwide to USAA. USAA further acknowledged it had notice of Nationwide’s settlement offer in the 29 May 1992 letter from USAA to plaintiffs. Therefore, USAA received proper written notice of the settlement offer as required by G. S. 20-279.21(b)(4). This assignment of error is overruled.
Plaintiffs next contend the 30 day period did not begin to run because the 8 April 1992 offer of settlement, forwarded to USAA on 14 May, “was merely a preliminary negotiation or offer” and “not an actual settlement between the plaintiffs and Nationwide.” Plaintiffs argue that a UIM carrier “cannot know when payment must be advanced to its insured until it knows when its insured has agreed to or accepted the terms of the offer.” Because the 8 April offer contained different structured settlement options and was conditioned upon the plaintiffs signing a release, and USAA had no notice of plaintiffs’ acceptance of the offer, plaintiffs contend the 14 May letter from Nationwide did not trigger the 30 day period. We again disagree.
The statute states that “where the insurer has been provided with written notice before a settlement” the insurer waives its subrogation rights unless it advances a payment to the insured “in an amount equal to the tentative settlement” within 30 days of receipt of the-written notice. G.S. 20-279.21(b)(4) (emphasis added). Further, in Gurganious v. Integon General Ins. Corp., 108 N.C. App. 163, 423 S.E.2d 317 (1992), disc. review denied, 333 N.C. 538, 429 S.E.2d 558 (1993), this Court held an insurer waived its right to subrogation where the insurer failed to advance the amount of the liability insurer’s settlement offer. This Court recognized that G.S. 20-279.21(b)(4) requires that a UIM insurer be notified “when a claim is filed against the primary tort-feasor, and also when a settlement
Plaintiffs in this case properly notified defendant of the claim as well as the settlement offer.
In accordance with the statute, when the primary liability insurance carrier offered the limits of its policy in settlement, [the UIM carrier] could have paid that amount to plaintiffs, thereby preserving its subrogation rights. However, [the UIM carrier] chose not to follow that course.
Id. at 166, 423 S.E.2d at 318-19 (emphasis added). Both the statute and case law require a UIM insurer be notified when a settlement offer is made, and when the primary liability insurance carrier has offered the limits of its policy in settlement, as was done in this case, the insurer must advance that amount to the insured within 30 days to protect its subrogation rights. Neither the statute nor case law require that the settlement be completed or that the UIM carrier must have notice of its insured’s acceptance of the offer. Therefore, this assignment of error is also overruled.
Here, the evidence shows USAA received written notice sometime between 14 May 1992 and 29 May 1992 that Nationwide had offered its $100,000 policy limit in settlement of plaintiffs’ claims. However, USAA waited until 29 July 1992 to advance the amount of Nationwide’s settlement offer to plaintiffs. Therefore, USAA waived its subrogation rights by not advancing the $100,000 to plaintiffs within 30 days of receipt of written notice of Nationwide’s settlement offer. After reviewing the record, we find no merit to plaintiffs’ remaining arguments. For the reasons stated, the order of the trial court is affirmed.
Affirmed.
Dissenting Opinion
dissenting.
I agree with the majority that the written notice required by N.C. Gen. Stat. § 20-279.21(b)(4) does not have to come from the plaintiffs and may properly come from the defendants’ liability carrier
In this case, notice was given to USAA by Nationwide on 14 May 1992 that Nationwide had offered to pay its policy limits to the plaintiffs in cash or pay in accordance with either of two different structured settlements. The offer to settle was further “based on the condition that Nationwide . . . receive a proper release.” The record does not reveal any written notice to USAA as to which proposal, if any, the plaintiffs agreed to accept. Accordingly, even assuming that one of the three proposals was acceptable to the plaintiffs and that there was no disagreement about the nature of the release required by Nationwide, USAA was not in a position to know what amount to advance to the plaintiffs to preserve its subrogation rights. Thus because the notice of 14 May 1992 only informed USAA that Nationwide had made an offer to the plaintiffs and did not reveal that a tentative settlement had been reached, it was not sufficient to begin the running of the section 20-279.21(b)(4) thirty-day time period. I therefore would hold that USAA is not barred from seeking subrogation against the tortfeasors and would reverse the order of the trial court.
This Court’s previous holding in Gurganious v. Integon General Ins. Corp., 108 N.C. App. 163, 423 S.E.2d 317 (1992), disc. rev. denied, 333 N.C. 538, 429 S.E.2d 558 (1993) does not require a different result. In that case the notice to the UIM carrier, which was given by the plaintiffs, indicates that the plaintiffs were agreeable to accepting a cash settlement offer from the liability carrier. Id. at 164-65, 423 S.E.2d at 318. Thus the UIM carrier had clear notice that there was an agreement between the liability carrier and plaintiffs and the precise terms of that agreement.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.