Appeal from Superior Court of Spokane County. Docket No: 92-2-05580-0. Date filed: 07/07/95. Judge signing: Hon. Kathleen O'Connor.
Authored by Ray E. Munson.* Concurring: Dennis J. Sweeney, Philip J. Thompson.
The opinion of the court was delivered by: Munson
MUNSON, J.* Suellen Bierce and her husband accepted an offer of judgment for all their claims, including damages for which Bierces' insurer, Safeco, had made personal injury protection (PIP) payments. We are asked to decide whether Safeco is entitled to reimbursement out of the settlement fund without evidence or a finding that the Bierces had been fully compensated. An insurer's subrogation rights are not extinguished by a settlement and release between its insured and a tortfeasor. The insurer may seek reimbursement from its insured only if the insured has been fully compensated. Leader Nat'l Ins. Co. v. Torres, 113 Wash. 2d 366, 373, 779 P.2d 722 (1989).
Ms. Bierce was injured in a car accident in July 1990. Ms. Bierce was insured by Safeco. The driver of the other vehicle, Charles Grubbs, was insured by Liberty Northwest. Safeco paid Ms. Bierce about $14,200 under the PIP provisions of her policy. Liberty paid Ms. Bierce an additional $15,071 for lost wages, property damage, and some medical expenses. In October 1991, Safeco wrote letters to Ms. Bierce's attorney and to Liberty, advising them of its subrogation interest and intent to seek reimbursement of the PIP advances. Liberty declined to pay Safeco and the dispute between the insurers was scheduled for arbitration in the summer of 1995.
In December 1992, Ms. Bierce commenced a lawsuit against Mr. Grubbs, seeking damages for medical expenses as well as lost wages, pain and suffering. The matter was set for trial in October 1994. Shortly before trial, Liberty made a $70,000 offer of judgment "on all claims." *fn1 On October 7, Safeco's own attorney wrote a letter to Mr. Grubbs' attorney reiterating Safeco's position that it was entitled to pursue its subrogation interest through arbitration regardless of whether the offer of judgment was construed to include the subrogation claim. The Bierces' attorney prepared an "Affidavit and Acceptance of Offer of Judgment" purporting to accept the offer but reserve Safeco's right to pursue its subrogation claim. The Grubbses' attorney responded with a letter indicating the intent of the offer of judgment was to include the $15,071 already advanced by Liberty, $14,200 to reimburse Safeco, and the balance as additional damages to the Bierces.
The Bierces moved for an order requiring the Grubbses to pay the balance of the $70,000 offer, excepting only the $15,071 previously advanced by Liberty, directly to the Bierces. The trial court ruled the offer of judgment was intended to satisfy all claims, including Safeco's subrogation claim, and that Safeco was entitled to recover only after proving the Bierces have been fully compensated. The parties were unable to agree on an order to implement the court's ruling.
In June 1995, the Grubbses filed a complaint joining Safeco as a third party defendant, alleging the offer of settlement included Safeco's subrogation claim and seeking a release of that claim as part of the judgment. Safeco moved for a stay asserting its contractual right to arbitrate the subrogation claim with Liberty. Following a hearing in July 1995, the court entered an order requiring the payment to Safeco of its subrogation claim in the amount of $14,166.80 and payment of the balance of the $70,000 judgment, minus Liberty's $15,071, to the Bierces, and dismissing the case. The Bierces appealed.
The Bierces contend Safeco should be permitted to pursue its subrogation claim against the tortfeasor and is not entitled to any of the funds paid by the Grubbses or Liberty pursuant to the offer of judgment.
When a tortfeasor is aware of an insurer's subrogated interest, the insurer does not consent to the settlement, and the settlement does not exhaust the tortfeasor's assets, the release between the insured and the tortfeasor does not extinguish the insurer's subrogation rights. Leader, 113 Wash. 2d 366, 779 P.2d 722. The insurer may proceed against its insured, but because its subrogation rights have not been prejudiced by the settlement, its right of reimbursement arises only after the insured has been fully compensated. Leader, 113 Wash. 2d at 373. But if the insurer pursues a subrogation action against the tortfeasor, compensation received by the insured is not affected: "The settlement between the insured and the tortfeasor was a compromise and represents what the case was worth to the insured without having to endure a trial." Leader, 113 Wash. 2d at 373.
Under Leader, Safeco could proceed against the Bierces for reimbursement only after showing they had been fully compensated; Safeco should be allowed to pursue its subrogation action against the Grubbses.
The Grubbses argue Leader is inapplicable because payment in the present case is not pursuant to a settlement. The evident purpose of both Leader and the offer of judgment rule, CR 68, is to promote settlements and avoid litigation. Viking Ins. Co. v. Nelson, 81 Wash. App. 539, 544, 914 P.2d 1215 (1996); Dussault v. Seattle Pub. Schs., 69 Wash. App. 728, 732, 850 P.2d 581 (1993), review denied, 123 Wash. 2d 1004, 868 P.2d 872 (1994). It is eminently reasonable to apply the rule in Leader to a settlement procured by a CR 68 offer of judgment.
The Grubbses also argue Leader is inapplicable because, unlike the insured in Leader, the Bierces sought compensation from the Grubbses for expenses for which their insurer had already paid. Leader recognizes the possibility that the subrogation action against the tortfeasor may result in duplicate recovery, but this risk is justified by the desirability of fully compensating injured parties. Leader, 113 Wash. 2d at 373; Viking, 81 Wash. App. at 544.
Safeco has never sought reimbursement from the Bierces, and there has been no evidentiary finding that the Bierces were fully compensated by payment of the judgment. The trial court erred in requiring the Bierces to reimburse Safeco out of the settlement funds.
The Bierces contend Safeco should be required to pay its pro rata share of their attorney fees if it is reimbursed out of the settlement fund. The issue was not raised in the ...