Breitenbach v. Motor Club of America Insur. Co

In Breitenbach v. Motor Club of America Insur. Co., 295 N.J. Super. 328, 334, 685 A.2d 36 (App.Div.1996) the plaintiff gave her UIM insurer notice of intent to settle for the tortfeasor's policy limits and that unless the insurer objected within thirty (30) days, he would accept the settlement and submit the UIM claim to the insurer. Breitenbach, supra, 295 N.J. Super. at 330, 685 A.2d 36. Prior to the expiration of the thirty (30) day period, plaintiff completed the settlement with the tortfeasor. Thereafter, the insurer refused to pay UIM benefits. Ibid. In the subsequent action by the insured against the UIM insurer, the motion judge dismissed the complaint, finding that plaintiff's failure to wait thirty days before settling with the tortfeasor irreparably prejudiced the UIM insurer's subrogation rights. The Court reversed because we found no prejudice to the UIM insurer. The Court explained: While plaintiff settled with the tortfeasor within the thirty days, defendant never delivered a response within that period, either objecting to the settlement or offering to pay the settlement proceeds. Having not responded in writing within thirty days of receipt of plaintiff's notice, the carrier's right of subrogation cannot be deemed to have been compromised. Id. at 335, 685 A.2d 36.