Lumbermens Mutual Casualty Co. v. Mercurio

4 Citing cases

  1. Elrod v. General Cas. Co. of Wisconsin

    1997 S.D. 90 (S.D. 1997)   Cited 18 times
    In Elrod, we re-affirmed two general principles, stating: "[t]here is no pro-rata coverage on non-owned vehicles otherwise insured."

    [¶ 14.] The Appeals Court of Massachusetts held that a valid underinsured clause existed under a similar set of circumstances.Lumbermens Mut. Cas. Co. v. Mercurio, 27 Mass. App. Ct. 111, 535 N.E.2d 234, 237 (1989). In Mercurio, the passenger of an automobile which was involved in an accident settled with the insurer of the owner/operator of the automobile, Liberty Mutual Casualty Company (Liberty).

  2. Sorenson v. Farmers Insurance Exchange

    279 Mont. 291 (Mont. 1996)   Cited 20 times
    Explaining that "[t]he purpose of underinsured motorist insurance is to provide a source of indemnification for accident victims when the tortfeasor does not provide adequate indemnification" and noting that "[d]enying accident victims indemnification based upon their action which can have no effect on the insurer's ability to subrogate will not further the purpose of underinsured motorist coverage."

    Even where a right to subrogation exists, many courts have recognized that if the insurer is unable to demonstrate prejudice to itself as a result of an unapproved settlement, the insured is not barred from collecting on the insurance policy. See, e.g., Thompson v. American States Ins. Co. (M.D. Ala. 1988), 687 F. Supp. 559; Rafferty v.Progressive American Ins. Co. (Fla.Dist.Ct.App. 1990), 558 So.2d 432; Mulholland v. State Farm Mut. Auto. Ins. Co. (Ill.App. Ct. 1988), 527 N.E.2d 29; Kapadia v. Preferred Risk Mut. Ins. Co. (Iowa 1988), 418 N.W.2d 848; Lumbermens Mut. Cas. Co. v. Mercurio (Mass.App.Ct. 1989), 535 N.E.2d 234; Tegtmeyer v. Snellen (Mo.Ct.App. 1990), 791 S.W.2d 737; Branch v. Travelers Indem. Co. (N.C.Ct.App. 1988), 367 S.E.2d 369, aff'd 378 S.E.2d 748 (1989); Federated Service Ins. Co. v. Granados (Or. 1995), 889 P.2d 1312; Prudential Property Cas. Ins. Co. v. Nayerahamadi (E.D. Pa. 1984), 593 F. Supp. 216; Thiringer v. American Motors Ins. Co. (Wash. 1978), 588 P.2d 191. In his concurrence to Nimmick, Justice Leaphart urged that Montana adopt such a "no prejudice" rule.

  3. Nash v. Metropolitan Property Liability Ins. Co.

    571 N.E.2d 1 (Mass. 1991)   Cited 4 times

    " Liberty Mut. Ins. Co. v. Lund, supra at 1007-1008. The fact that Mather had optional bodily injury coverage and the insured in the Lund case did not is a distinction that does not aid Nash. Also, Nash is not helped by the fact that Lumbermens Mut. Casualty Co. v. Mercurio, 27 Mass. App. Ct. 111 (1989), was decided on the assumption that a passenger in a single vehicle accident could recover under the insured tortfeasor's underinsured coverage. The issue was not decided in that case.

  4. Commercial Union Ins. Co. v. Burns

    572 N.E.2d 16 (Mass. App. Ct. 1991)   Cited 2 times

    More particularly, the MacInnis case did not deal with fixing the actual damages, which is the issue at the heart of this case. The judge found that CU had valuable subrogation rights which it surrendered when it approved the settlement, i.e., CU had changed position. By treating the settlement in this case as fixing the damages, CU, conformably with MacInnis at 222-223, avoids prejudice from its change of position. Cf. Lumbermens Mut. Cas. Co. v. Mercurio, 27 Mass. App. Ct. 111, 115 (1989). For the reasons stated, the trial judge correctly ruled that the agreement for judgment established the Burnses' damages.