Does a Torfeasor's failure to cooperate allow UM carrier to step down to minimum limits? I’m thinking about getting a default against the Tortfeasor.
Answer: Be aware of Baldridge v. Kirkpatrick, 2003 OK CIV APP 9, 63 P.3d 568. After holding that failure of the insured to cooperate and give notice of a suit was not a defense, to the extent of compulsory insurance law minimum coverage, the court reversed a judgment for the plaintiff and said:
¶23 However, we do not agree Plaintiff is entitled to judgment at this point in the proceedings. GuideOne has been held liable by a judgment in which it had absolutely no opportunity to present a defense or even to decide whether to do so. "Due process commands that interested parties be afforded notice and an opportunity to be heard before the entry of a decision affecting their rights."Gonzalez by and through Gonzalez v. Combined Ins. Co. of Am.,2002 OK CIV APP 101, ¶ 19, 57 P.3d 109, 113-14. It would be fundamentally unfair to hold GuideOne responsible at this point when it received no notice or opportunity to defend until after the fact.
State Mut. Life Assur. Co. v. Hampton, 1985 OK 19, 696 P.2d 1027: In holding beneficiary being acquitted of killing insured did not require payment to beneficiary, under "slayer" statute (84 O.S. 231) but rather that a trial was required as to whether the beneficiary wrongfully killed the insured, the Supreme Court rejected an argument by the beneficiary (wife of deceased) that her acquittal in the criminal case resolved that she was entitled to recover. After noting the difference in the burden of proof in the criminal case (beyond a reasonable doubt) and a civil case (preponderance of the evidence), the Supreme Court said:
¶29 Moreover, special administrator and children, who are entitled to take under § 231 if wife is barred, were not parties to the criminal case. Due process standards would preclude their being bound by the result of proceedings in which they did not participate. See, Parklane Hosiery Co., Inc. v. Shore,439 U.S. 322, 326, n. 7, 99 S. Ct. 645, 649, n. 7, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation,402 U.S. 313, 329, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788 (1971); California-Western States Life Ins. Co. v. Sanford, 515 F. Supp. 524, 533 (E.D.La. 1981).
So, your UM carrier will have a right to present its defenses and a default judgment will not really help you all that much.
Posted on Mon, June 30, 2014
by Travis Law Office filed under