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Son v. Allstate Insurance Co.

September 16, 1996

NAN KYU SON AND YONG HUN SON, WIFE AND HUSBAND, APPELLANTS,
v.
ALLSTATE INSURANCE COMPANY, A FOREIGN CORPORATION, RESPONDENT.



Appeal from Superior Court of Snohomish County. Docket No: 92-2-01946-7. Date filed: 10/06/94.

Authored by C. Kenneth Grosse. Concurring: Ann L. Ellington, H. Joseph Coleman. WE Concur

The opinion of the court was delivered by: Grosse

GROSSE, J. -- Nan Kyu Son claims the trial court erred by offsetting from her underinsured motorist (UIM) jury award, personal injury protection (PIP) payments and a liability insurance settlement paid by Allstate Insurance Company (Allstate). We affirm. The trial court did not err in determining the PIP issue outside the presence of the jury; Son waived any claim that Allstate did not prove its PIP claim because she failed to pursue the issue below; and she may not argue that the trial court erred in offsetting the settlement award amount since she did not contest this offset below.

On August 30, 1990, Steve Coury rear-ended Nan Kyu Son. Allstate insured both Coury and Son. Coury settled with Son to the limits of his Allstate liability insurance policy, $25,000. Seeking her uncompensated damages, Son and her husband filed a complaint for UIM damages in April 1992. Allstate counterclaimed for its subrogation interest in the $25,000 insurance settlement as a result of its payment of $14,993.98 in PIP benefits. In her answer to the counterclaim, Son admitted that she settled with Coury for the full amount of his liability insurance policy. Son also admitted to receiving "some" PIP benefits but disputed Allstate's claim on the grounds that Son had not been fully compensated and that the settlement with Coury included Allstate agreeing to waive its subrogation interest.

Son stated:

Plaintiff admits that Allstate Insurance Company did pay some personal injury protection benefits however, Plaintiffs specifically deny that Allstate Insurance Company has a subrogated interest with respect to the payments because Plaintiffs have not been fully compensated for their losses.

Before trial Son moved to exclude evidence of her insurance coverage and to exclude coverage of settlement issues. Under the parties' pre-trial stipulation, Allstate admitted liability for the purposes of the UIM claim.

Whether Son had sustained injury from the car accident and the amount of her damages were the only issues argued before the jury.

The court instructed the jury to decide Son's general damages, including: medical care, wage loss, pain and suffering, and to consider Son's husband's loss of consortium claim. Son proposed to instruct the jury to deduct "$25,000.00 from the non-economic loss" and "$14,993.98 from the economic loss." But the court did not instruct the jury about the PIP or the settlement payments. Neither Son nor Allstate took exception to the court's instructions.

The jury awarded Son $35,580.50 and awarded her husband nothing.

On October 6, 1994, the trial court held a post-verdict hearing. Not objecting to the settlement award's deduction, Son's counsel offered a proposed order that would award Son "$35,580.50 minus $25,000 paid by the insurance carrier for the tortfeasor." Son objected to the deduction of the PIP benefits on the ground that Allstate did not prove its case, arguing Allstate should have presented evidence to the jury to support the PIP counterclaim. Allstate's counsel offered to produce canceled checks proving the PIP payments.

Ruling in favor of Allstate, the trial court reasoned that "under circumstances such as this, the law requires subrogation and reimbursement." Regarding the payment issue, the trial court stated that based on a Discussion in chambers, the trial had proceeded on the basis that "those matters would be taken up . . . after the verdict." The trial court ruled that Son was the prevailing party entitled to costs, but that Allstate was entitled to an offset. Entering judgment based on the jury's award, the court further stated:

THE COURT FINDS THAT:

Prior to this trial, the Plaintiffs had received the sum of $25,000.00 as a liability settlement from the tortfeasor and an additional $14,993.98 ...


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