Earle v. Cobb

156 S.W.3d 257, 2004 Ky. LEXIS 324, 2004 WL 2913181
CourtKentucky Supreme Court
DecidedDecember 16, 2004
Docket2000-SC-0818-DG
StatusPublished
Cited by26 cases

This text of 156 S.W.3d 257 (Earle v. Cobb) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Earle v. Cobb, 156 S.W.3d 257, 2004 Ky. LEXIS 324, 2004 WL 2913181 (Ky. 2004).

Opinions

Opinion of the Court by

Chief Justice LAMBERT.

The issue presented is whether an underinsured motorist (UIM) carrier must be identified at trial when it chooses to preserve its subrogation rights by means of the procedure set forth in Coots v. Allstate Ins. Co.1 (the “Coots procedure”). We conclude that the UIM carrier should be so identified as a party because it was named as a party by virtue of its contract and because it chose to retain its subrogation rights by substitution of its payment for that of the liability insurance carrier. As the trial court and the Court of Appeals held otherwise, and the case was tried without all real parties, we reverse and remand for a new trial.

On February 17, 1998, Appellant, Bonita Earle, and Appellee, Alice Cobb, were involved in an automobile accident in Muhlenberg County. As a result of the accident, Earle was injured. She sought recovery from Appellee Cobb and from her UIM carrier, Appellee Indiana Insurance Company (Indiana Insurance). Earle sought damages for medical expenses, lost wages, and pain and suffering. Indiana Insurance filed a cross-claim against Cobb for indemnity.

[259]*259Prior to trial, Cobb’s liability insurance carrier, Hartford Insurance Company, offered its policy limit of $25,000 to Earle as full settlement of her claims against Cobb. Earle was willing to accept this sum, but as was its right, the UIM carrier, Indiana Insurance, elected to preserve its subrogation right against Cobb by using the Coots procedure of substituting its payment for Hartford’s (liability carrier) proposed $25,000 settlement. Thus, Cobb was not released and she remained a party defendant.

For the purposes of trial, the court ordered Earle’s claims against Indiana Insurance for UIM benefits to be determined after the jury rendered a verdict. The trial court also held that the existence of the UIM coverage provided by Indiana Insurance could not be revealed to the jury. Thus, Indiana Insurance was not identified as a party, did not participate at trial, and agreed to be bound by the jury verdict. However, Indiana Insurance did defend by participating in pretrial motions and discovery. In short, the case was tried to the jury as Earle v. Cobb, and nothing more was revealed.

During its deliberations, the jury asked the trial judge the following question: “Is insurance involved or is it coming from Ms. Cobb?” The trial judge declined to answer the jurors’ question. Thereafter a verdict was returned and Earle was awarded $500.00 for pain and suffering, $500.00 for past medical bills, and $500.00 for lost wages. Judgment was entered thereon. Earle appealed and Cobb cross-appealed to the Court of Appeals. In its opinion, the Court of Appeals affirmed the trial court holding that the interest and participation of Indiana Insurance was properly withheld from the jury. Earle was granted discretionary review by this Court.

CR 17.01 provides, in part, “Every action shall be prosecuted in the name of the real party in interest.... Nothing herein, however, shall abrogate or take away an individual’s right to sue.”2 In the case at bar, Appellee Indiana Insurance was a party defendant in the trial court and was allowed to participate in all pretrial proceedings and discovery.3 At trial, however, it was not identified and the case was presented as if the only parties were the plaintiff, Earle, and the defendant, Cobb. Such a trial is fundamentally misleading to the jury and it deprives a plaintiff of the right to try her case against the party she chooses.4

For sound policy reasons, evidence of liability insurance to show culpability is excluded. However, where a direct contractual relationship exists between a plaintiff and a defendant insurance company no such policy is warranted. In Wheeler v. Creekmore,5 we explained this proposition as follows:

The insurance company was in fact a party and we think properly so, because it had a direct contractual obligation to Mrs. Wheeler. Since the company was a party and was actively represented by counsel we think the jury was entitled to [260]*260know that fact and to have the company’s counsel identified. Otherwise the jury would be left to speculate as to the interest represented by an attorney participating in the trial who had no apparent connection with any of the parties. It is our opinion that the considerations which have prompted the rule against mention of ordinary liability insurance in an automobile negligence case must yield in uninsured-motorist [UM] cases to the procedural desirability of letting the jury know who are the parties to the litigation where the uninsured motorist carrier elects to participate actively in the trial.6 (Citations omitted).

While Wheeler addressed UM coverage, we held in Coots v. Allstate Ins. Co. that UM and UIM coverage should be treated similarly as the purpose and intent of their coverages is similar.7

Kentucky is not alone in recognizing the right of a plaintiff to bring a contract claim against his or her UIM carrier and have that UIM carrier identified as such at trial.8 The reasoning employed in some jurisdictions for allowing identification of UIM or UM carriers to the jury is well articulated in King v. State Farm, Mut. Auto. Ins. Co.9:

In the instant matter, the defendant, a corporation, has no personal right of privacy. Further, the unsubstantiated belief by State Farm that its disclosure as the defendant would adversely affect the jury’s verdict furnishes insufficient justification for withholding from the jury, and from the general public, State Farm’s identity as the defendant at a public trial. The lack of per se prejudice to the UM/UIM carrier in being identified at a trial at which the insured’s damages, under the policy, are determined by rules applicable to tort cases is shown by the permissibility of joining, as defendants in an action brought by the insured, the tortfeasor and the UM/ UIM carrier. Indeed, State Farm’s position here is no different from that of any insurer that is sued directly for breach of its policy or from that of any apparently “deep pocket” corporation that is sued for breach of contract by its promisee. We hold that the circuit court abused its discretion in imposing this partial blackout on public information. (citations omitted).10

Prejudice to a UM/UIM carrier from being identified as a party has been considered insignificant, and in any event the contractual relationship and full disclosure must prevail.11 The Supreme Court of Florida [261]*261has recently held in Medina v. Peralta12 that a trial court’s failure to identify to the jury a properly joined UM7UIM motorist carrier to be per se reversible error.13

As in the foregoing cases, Earle brought a direct action against her UIM carrier and Cobb. The claim against Cobb was based on negligence and the claim against the UIM carrier was based on its contractual undertaking.

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Earle v. Cobb
156 S.W.3d 257 (Kentucky Supreme Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
156 S.W.3d 257, 2004 Ky. LEXIS 324, 2004 WL 2913181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/earle-v-cobb-ky-2004.