McKinney v. Morrow

196 S.E.2d 585 (1973)

18 N.C. App. 282

Walter Elbert McKINNEY v. John P. MORROW.

No. 7329DC311.

Court of Appeals of North Carolina.

May 23, 1973.

Certiorari Denied July 12, 1973.

*586 Hamrick & Hamrick by J. Nat Hamrick, Rutherfordton, for plaintiff appellant.

Morris, Golding, Blue & Phillips by James F. Blue, III, Asheville, for defendant appellee.

Certiorari Denied by Supreme Court July 12, 1973.

CAMPBELL, Judge.

G.S. § 20-279.21(f)(3) provides that every motor vehicle liability insurance policy shall include the right of the insurance *587 carrier to settle in good faith any claim covered by the policy. The insurance carrier has the right to settle claims even if that provision is not written into the policy.

By a compromise settlement between parties to an automobile collision each party effectively "buys his peace" respecting any liability created by the collision. The settlement constitutes an acknowledgment, as between the parties, of the liability of the payor and the nonliability, or at least a waiver of the liability, of the payee. Snyder v. Oil Co., 235 N.C. 119, 68 S.E.2d 805 (1952).

"[W]here an insurance carrier makes a settlement in good faith, such settlement is binding on the insured as between him and the insurer, but . . . such settlement is not binding as between the insured and a third party where the settlement was made without the knowledge or consent of the insured or over his protest, unless the insured in the meantime has ratified such settlement." Lampley v. Bell, 250 N.C. 713, 714, 110 S.E.2d 316, 317 (1959). Such consent or ratification constitutes an admission of his liability by the insured. Snyder v. Oil Co., supra.

In the situation where plaintiff and defendant were involved in an automobile collision, and plaintiff's insurance carrier pays for and obtains a release from liability from the defendant, and the plaintiff later sues defendant for damages, the defendant responding against the plaintiff by counterclaim for his own damages, the following results are possible:

(1) The plaintiff may plead the release to bar defendant's counterclaim, but such pleading constitutes a ratification of the compromise settlement which in turn bars the plaintiff's own claim.

(2) If the plaintiff does not plead the release, but moves to strike the counterclaim based on the release, such motion to strike is also a ratification of the compromise settlement.

(3) Whether the plaintiff does or does not ratify the compromise settlement, his insurance carrier is not liable to the defendant or the plaintiff for any judgment which the defendant might obtain in the counterclaim against the plaintiff. If the plaintiff does not ratify the settlement he preserves his right of action against the defendant, but he also assumes the risk of having to pay a judgment obtained against him in the defendant's counterclaim without benefit of the liability insurance.

(4) If the defendant does obtain a judgment against the plaintiff, the amount of liability must be diminished by the amount previously paid to the defendant by plaintiff's insurance carrier. Bradford v. Kelly, 260 N.C. 382, 132 S.E.2d 886 (1963).

In the instant case plaintiff contends that this rule of law forces him to give up protection of his liability insurance policy which the State has forced him to buy. However, a similar contention was argued and rejected in Keith v. Glenn, 262 N.C. 284, 136 S.E.2d 665 (1964).

"The Motor Vehicle Financial Responsibility Act obliges a motorist either to post security or to carry liability insurance, not accident insurance to indemnify all persons who might be injured by the insured's car. Keith v. Glenn, 262 N.C. 284, 286, 136 S.E.2d 665, 667. When the Legislature passed the act it was not in the legislative contemplation that each driver in a two-car collision would recover from the other's insurance carrier." Moore v. Young, 263 N.C. 483, 485, 139 S.E.2d 704, 706 (1965).

Affirmed.

PARKER and HEDRICK, JJ., concur.