Parrish v. Grain Dealers Mutual Insurance

369 S.E.2d 644, 90 N.C. App. 646, 1988 N.C. App. LEXIS 594

Opinions

PHILLIPS, Judge.

The facts in this case are not materially different from those recorded in Silvers v. Horace Mann Insurance Company, 90 N.C. App. 1, 367 S.E. 2d 372 (1988), where this same panel held that the summary judgment dismissing the plaintiffs claim for under-insurance benefits was erroneous. For the reasons stated therein we hold that plaintiff’s underinsurance coverage claim is not barred because she is no longer legally entitled to recover damages of the tort feasor and is barred by the settlement made without defendant’s consent only to the extent, if any, that defendant’s subrogation rights were prejudiced. Thus, the order of summary judgment dismissing plaintiff’s claim is vacated and the case is remanded to the Superior Court for trial consistent with the provisions of the foregoing opinion. Defendant, of course, is not bound by any acknowledgment that the tort feasor may have made and in the trial, unless defendant agrees otherwise, plaintiff will have the burden of proving, along with the other matters alleged in the complaint, that the tort feasor was legally liable for her damages before the settlement was made.

Vacated and remanded.

Judges Becton and Greene concur.