David whichard

Lumbermens Mut. Casualty Co. In a motor vehicle liability suit, an insurer's duty to defend its insured arises from the language of the insurance contract. An insurer's duty to defend is separate from and broader than the insurer's duty to indemnify. New Hampshire's policy unambiguously states that their payment of the limit ends their duty to defend or settle.

The policy provides:. Highlighted within the policy, this conspicuous language clearly limits New Hampshire's contractual obligation to defend defendants in this action, upon the payment of the liability limits. See Gross v. Lloyds of London Ins. The insured could not reasonably have expected the insurer's duty to defend to continue after the payment of the liability policy limit. Because of the ambiguous use of the word "exhausted" in the policy, the court found that Lumbermen's had a duty to continue defending the insured until a settlement or judgment was reached despite having paid its policy limits.

The relevant Lumbermens policy language provided:. The New Hampshire policy clearly and specifically states that the duty to defend ends by the payment of the liability insurance limit. In Brown, the policy did not clearly state that the duty to defend may be satisfied by the payment of the policy limits.

Furthermore, N. The underinsured motorist statute fails to address the appropriate disposition of the funds paid in settlement by the primary liability insurer. For this reason, New Hampshire requests permission to pay its limits into court for disposition pursuant to court order or, in the alternative, permission to make payment jointly to plaintiff and Aetna for disposition as those parties may agree. Aetna contends that New Hampshire's primary policy limits should be paid directly to Aetna if the Court allows New Hampshire's application for release.

New Hampshire has settled its claim. The disposition of Aetna's settlement funds poses an interesting question which the North Carolina statute fails to address. In the absence of an underinsured motorist carrier, the settlement funds from the primary liability carrier would be paid to the claimant. However, in the underinsured motorist context, the operation of N.

So, Aetna has advanced to the plaintiff the settlement amount agreed upon by plaintiff and New Hampshire, which is equal to New Hampshire's limits. Prior to the entry of judgment, the trial judge shall credit the advance payment upon any judgment rendered in favor of the recipient of the advance payment. No claim for reimbursement may be made or allowed by the party making the advance payment against the recipient, except for fraud.

Aetna, as the underinsured motorist carrier, is entitled to a credit for the advance upon any judgment awarded to the plaintiff. Since Aetna, to the extent of its advance payment to plaintiff, is subrogated to plaintiff's claim against the underinsured motorist, N. There would be no prejudice to plaintiff by direct payment of the primary policy limits to the underinsured motorist carrier, because the underinsured motorist carrier, Aetna, would remain obligated to satisfy any judgment rendered in excess of the primary policy limits, up to the extent of the coverage afforded to plaintiff under the underinsurance provisions of the owner's policy.

In summary, the Court should enter an order discharging and releasing New Hampshire Insurance Company from all further liability and obligation to participate in the defense of this action upon payment of its primary policy limits to Aetna.

Furthermore, New Hampshire's retained defense counsel should be permitted to withdraw as counsel for the defendants. Whichard Gunn v. Whichard, F. October 31, Mickey A. Please verify your email address by opening the welcome email in your email inbox. Check your spam folder if you can't find it there. We have sent another confimation email. Instructions on setting a new password have been sent to your email address. Facebook Login Sign up the easy way. Setting Primary Image. John David Whichard Born: Oakdale Cemetery North Bonner Street.

Washington, Beaufort , North Carolina. DeeDee April 26, RickD April 4, Nearby Graves. Find more about John David We found more records about John David Whichard. Grave Site of John David edit. Cemetery Name.

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