Insurance 69 — underinsured motorist coverage — settlement with tort-feasor without insurer's consent An insured plaintiffs entry into a settlement with a tort-feasor without the consent of plaintiffs underinsured motorist coverage carrier does not bar her claim for underinsured motorist benefits as a matter of law.
Justice WEBB dissenting.
Justice MEYER joins in this dissenting opinion.
MARTIN, Justice.
The issues in this case are virtually identical to those in Silvers v. Horace Mann Ins. Co., 324 N.C. 289, 378 S.E.2d 21 (1989), filed contemporaneously with this opinion. Factually, this case differs only in that the insurance policy at issue preserved, rather than waived, the right of subrogation. This difference is not material to our disposition of this appeal.
For the reasons fully and aptly stated in Silvers, we hold that plaintiff's entry into a settlement with the tort-feasor without defendant's consent does not bar her claim for underinsured motorist benefits as a matter of law.
The decision of the Court of Appeals is affirmed. However, the case must be remanded to the Court of Appeals for further remand to the trial court to determine whether defendant was prejudiced by plaintiff's failure to procure its consent to the settlement.
Modified and Affirmed.