Progressive Direct Insurance v. Jungkans , 972 N.E.2d 807 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Progressive Direct Insurance Co. v. Jungkans, 2012 IL App (2d) 110939
Appellate Court PROGRESSIVE DIRECT INSURANCE COMPANY, Plaintiff-
Caption Appellee, v. KYLE JUNGKANS, Defendant-Appellant.
District & No. Second District
Docket No. 2-11-0939
Filed June 27, 2012
Held An insurance company was not entitled to a declaration that its insured
(Note: This syllabus violated their policy’s cooperation clause when the insured settled with
constitutes no part of the driver of the vehicle that injured him, for the limits of the driver’s
the opinion of the court policy, without notice to the insurer, where the driver was judgment proof
but has been prepared and the insurer was not prejudiced by the settlement.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Kendall County, No. 10-MR-7; the
Review Hon. Timothy J. McCann, Judge, presiding.
Judgment Judgment for plaintiff reversed; judgment for defendant entered.
Counsel on Michael W. Rathsack, of Law Offices of Michael W. Rathsack, of
Appeal Chicago, and Kathleen T. Zellner and Douglas H. Johnson, both of
Kathleen T. Zellner & Associates, P.C., of Downers Grove, for appellant.
Bill Porter and Reagan F. Goins, both of Chilton, Yambert & Porter, LLP,
of Geneva, for appellee.
Panel JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Zenoff and Birkett concurred in the judgment and opinion.
OPINION
¶1 Defendant, Kyle Jungkans, was injured while he was riding in a car driven by Billy
Watts. He settled with Watts and Watts’ insurer, State Farm Insurance Companies (State
Farm), for State Farm’s policy limit, then sought underinsured motorist (UIM) coverage
under his policy with plaintiff, Progressive Direct Insurance Company. Plaintiff denied
coverage, on the basis that defendant’s failure to notify it in advance of the settlement
violated the policy’s cooperation clause. Plaintiff filed an action for a declaratory judgment
(735 ILCS 5/2-701 (West 2010)). The trial court granted plaintiff summary judgment (735
ILCS 5/2-1005(c) (West 2010)). Defendant appeals. We reverse the judgment and enter
judgment for defendant.
¶2 Defendant’s policy with plaintiff included UIM coverage, with limits of $250,000 per
person and $500,000 per occurrence. On September 24, 1999, defendant was seriously
injured while riding in a car driven by Watts. Jennifer Walker owned the car, and her policy
with State Farm had limits of $100,000 per person and $300,000 per occurrence. Defendant
sued Watts for negligence. On November 6, 2009, he settled with Watts for the policy limit
of $100,000. Defendant and Watts signed a release discharging Watts and Walker from
future liability for the accident. Defendant did not notify plaintiff of the release until
November 30, 2009.
¶3 Defendant then sought UIM coverage from plaintiff. Plaintiff denied the coverage,
asserting that, by releasing Watts, defendant had violated the policy’s cooperation clause and
had cut off plaintiff’s right of subrogation against Watts and State Farm. Plaintiff filed a
complaint for a declaratory judgment to this effect, attaching a copy of the policy. The two
pertinent policy provisions follow. The first is the cooperation clause:
“NOTICE AND CONSENT REQUIREMENTS
An insured person must notify us in writing at least 30 days before entering into any
settlement with the owner or operator of an uninsured motor vehicle or an
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underinsured motor vehicle, or any liability insurer. In order to preserve our right of
subrogation, we may elect to pay any sum offered in settlement by, or on behalf of, the
owner or operator of an uninsured motor vehicle or an underinsured motor vehicle.
If we do this, the insured person agrees to assign to us all their rights against the owner
or operator of the uninsured motor vehicle or underinsured motor vehicle, to the
extent of our payment.
Any judgment or settlement for damages against an owner or operator of an
uninsured motor vehicle or an underinsured motor vehicle that arises out of a lawsuit
brought without our written consent is not binding on us.” (Emphases in original.)
The second pertinent provision reads:
“OUR RIGHTS TO RECOVER PAYMENT
We are entitled to the rights of recovery that the insured person to whom payment
was made has against another, to the extent of our payment. That insured person may be
required to sign documents related to the recovery and must do whatever else we require
to help us exercise those recovery rights, and do nothing after an accident or loss to
prejudice those rights.
However, we may not assert rights of recovery against the owner or operator of an
uninsured motor vehicle or an underinsured motor vehicle, if the person seeking
coverage under Part III–Uninsured/Underinsured Motorist Coverage provides us with
written notice at least 30 days prior to entering into a settlement that an offer of
settlement has been made by, or on behalf of, the owner or operator of an uninsured
motor vehicle or an underinsured motor vehicle, and if we do not elect to pay to, or
on behalf of, that person an amount equal to the amount offered in full settlement by, or
on behalf of, the owner or operator of the uninsured motor vehicle or underinsured
motor vehicle.
When an insured person has been paid by us and also recovers from another, the
amount recovered will be held by the insured person in trust for us and reimbursed to us
to the extent of our payment. If we are not reimbursed, we may pursue recovery of that
amount directly against that insured person.
If an insured person recovers from another without our written consent, the insured
person’s right to payment under any affected coverage will no longer exist.
***
These provisions will be applied in accordance with state law.” (Emphases in original.)
¶4 Plaintiff’s complaint contended that, by releasing Watts without first timely notifying
plaintiff, defendant violated the cooperation clause and destroyed plaintiff’s right of
subrogation, and that, as a result, defendant had forfeited any UIM payments.
¶5 Defendant moved to dismiss the complaint (see 735 ILCS 5/2-619(a)(9) (West 2010)).
As pertinent here, he argued that, even if he had violated the cooperation clause, plaintiff still
could not recover. That was because, since the time of the accident, Watts had no significant
assets, so that plaintiff had suffered no substantial prejudice from losing its subrogation right.
¶6 Defendant’s motion attached several documents. The first, a letter dated January 22,
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2010, from Edward R. Kirby & Associates, Inc. (Kirby), a private investigator, to defendant’s
attorney, Kathleen T. Zellner & Associates, P.C. (Zellner), stated that Kirby’s “limited
investigation” had shown that Watts’ only “readily identifiable” assets were three 1995 motor
vehicles. Moreover, there was an unsatisfied 2005 judgment against him for $5,249; two
paternity suits had been filed against him; and, on January 8, 2010, he had been sentenced
to four years in prison for aggravated driving under the influence of alcohol, apparently based
on the accident that had injured defendant. The letter concluded, “Given that [Watts] is
currently incarcerated and we find no immediate assets, we are discontinuing any further
investigation at this time.”
¶7 Defendant’s motion attached another letter from Kirby to Zellner, dated February 18,
2010, stating that a “limited investigation” had revealed that Walker had no “assets of note”
other than two vehicles, including the car involved in the accident. Finally, the motion
attached a letter dated January 14, 2010, from Asia Bell, a claims representative for State
Farm, to Zellner. It stated:
“Per our conversation *** today ***, Billy Watts has no other insurance with State
Farm and per our policyholder Ms. Walker neither one of them [has] any assets. State
Farm has reimbursed [plaintiff] the $5,000 in [sic] which they paid for medical
payments.”
¶8 After the trial court denied defendant’s motion to dismiss, he filed an answer that
included several “affirmative defenses,” including that plaintiff had not been prejudiced by
his settlement with Watts and that the settlement had not extinguished its subrogation right.
¶9 The parties filed cross-motions for summary judgment. Plaintiff’s motion argued that,
because defendant had violated the cooperation clause, he could not recover UIM benefits.
Plaintiff asserted that, under Home Insurance Co. v. Hertz Corp., 71 Ill. 2d 210, 215 (1978),
because the unlimited release did not specifically designate an amount to cover plaintiff’s
subrogation interest, plaintiff could not bring an action against Watts unless, before the
release was executed, Watts or State Farm had known of plaintiff’s interest. However, there
was no evidence that either one had known. Addressing defendant’s no-prejudice argument,
plaintiff contended that a judgment against Watts would not have been limited to Watts’
assets at the time of Kirby’s investigation. Further, it was not for defendant to say whether
plaintiff would pursue a subrogation action.
¶ 10 Defendant’s motion for summary judgment conceded that he had violated the cooperation
clause. However, he contended that the Hertz rule favored him because, before the release
was signed, Walker (whom defendant characterized as a tortfeasor) and State Farm had
indeed known of plaintiff’s subrogation interest. Defendant relied on affidavits by Walker
and Bell. Walker’s affidavit stated that, as of November 6, 2009, she knew that plaintiff had
the right to sue her. Bell’s affidavit stated as follows. She had processed the settlement of the
claim between defendant and Watts. State Farm reimbursed plaintiff “for the $5000.00 in
[sic] which they [sic] paid for medical payments for [defendant].” Bell “had knowledge of
[plaintiff’s] subrogation rights with regard to [defendant’s] claim prior to the release being
executed on November 6, 2009.”
¶ 11 In response to defendant’s motion for summary judgment, plaintiff asserted in part that,
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under Farmers Automobile Insurance Ass’n v. Suligoy, 180 Ill. App. 3d 896, 898 (1989), the
“knowledge issue” was an affirmative defense that defendant had failed to raise in his answer
and thus had forfeited. Also, plaintiff asserted, Bell’s affidavit was insufficient to prove that
she had known, pre-release, of plaintiff’s specific right of subrogation against Watts.
Defendant replied that Bell’s affidavit implied that she had known of the specific right
involved in this case, and he added that he had raised the “knowledge issue” in his
affirmative defenses.
¶ 12 The trial court granted summary judgment to plaintiff (and thus denied summary
judgment to defendant), explaining first that Walker’s affidavit was irrelevant because she
was neither the tortfeasor nor the tortfeasor’s insurer. Further, the court noted, the release did
cut off plaintiff’s right of subrogation against Watts. There was no assurance that Watts
would have been judgment-proof–he could have come into a large sum of money, however
unlikely the possibility–and, even had he been judgment-proof, plaintiff would have had the
right to file an action against him anyway. Defendant timely appealed.
¶ 13 On appeal, defendant advances two arguments for why the trial court erred in granting
plaintiff summary judgment and denying him summary judgment. First, plaintiff’s right of
subrogation survived defendant’s settlement with Watts, because State Farm knew of
plaintiff’s subrogation right before the settlement. Second, plaintiff may not escape its
obligations by relying on his violation of the cooperation clause, because plaintiff failed to
establish that it was substantially prejudiced or even to raise a genuine factual issue on this
score. Plaintiff responds first that (a) defendant waived or forfeited the “knowledge” defense,
because he did not plead it as an affirmative defense; and (b) defendant failed to raise a
genuine issue on the matter of foreknowledge, much less to establish as a matter of law that
State Farm knew in advance of plaintiff’s subrogation right. Plaintiff responds second that
it proved that defendant’s failure to notify it timely of the settlement did cause it prejudice.
For the following reasons, we agree with defendant.
¶ 14 Summary judgment is proper when the pleadings, depositions, and other matters on file,
when viewed in the light most favorable to the nonmovant, show that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a matter of law. 735
ILCS 5/2-1005(c) (West 2010); Shannon v. Boise Cascade Corp., 208 Ill. 2d 517, 523-24
(2004). Our review is de novo. Morris v. Margulis, 197 Ill. 2d 28, 35 (2001).
¶ 15 We turn first to the “knowledge” issue. Relying on Suligoy, plaintiff contends that
defendant forfeited this defense because he failed to plead it in his answer. Suligoy does state
that knowledge is an affirmative defense that must be pleaded. Suligoy, 180 Ill. App. 3d at
898. However, we agree with defendant that this holding–which Suligoy assumed rather than
supported with case law or reasoning–contradicts the established rule that an insurer who
invokes a cooperation clause must affirmatively show that it was prejudiced by the insured’s
failure to notify it in advance of his settlement with the tortfeasor. See M.F.A. Mutual
Insurance Co. v. Cheek, 66 Ill. 2d 492, 499-500 (1977); Marsh v. Prestige Insurance Group,
58 Ill. App. 3d 894, 896 (1978).
¶ 16 Thus, in Richter v. Standard Mutual Insurance Co., 279 Ill. App. 3d 501 (1996), the
insurer contended that it need not provide coverage, because the insured had settled with the
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tortfeasor without first obtaining the insurer’s consent. Disagreeing, the appellate court held
that, once the insured had brought his accident within the terms of the policy, the insurer had
the burden to prove that the cooperation clause applied and barred recovery. Id. at 508-09.
Here, plaintiff has never denied that defendant’s UIM claim is within the scope of the policy;
it has instead relied on the cooperation clause, and the related subrogation-rights provision,
to defeat an otherwise valid claim. Therefore, per Richter, we conclude that defendant did
not need to raise the “knowledge” issue as an affirmative defense in his answer.
Parenthetically, we note that defendant arguably did so, as his answer alleged that plaintiff’s
subrogation right was not extinguished by his settlement with Watts.
¶ 17 We turn to the merits of defendant’s first argument on appeal. Defendant notes the
holding of Home Insurance Co, 71 Ill. 2d at 215:
“[A]n unlimited release executed by an insured-subrogor for consideration not
specifically including an amount designated as covering the insurer’s subrogation interest
does not bar a subsequent subrogation action by an insurer-subrogee against the
tortfeasor, if the tortfeasor or his insurance carrier had knowledge of the insurer-
subrogee’s interest prior to the release.” (Emphasis added.)
¶ 18 Defendant observes that the use of “or” instead of “and” demonstrates that prior
knowledge by either the tortfeasor or his insurer will preserve the subrogation right of the
victim’s insurer. See also Richter, 279 Ill. App. 3d at 507-08 (accident victim’s insurer did
not lose subrogation right by settlement that was obtained without insurer’s consent, because
tortfeasor’s insurer knew in advance of settlement that insurer had that right). He maintains
that Bell’s affidavit established that in advance of the settlement State Farm knew of
plaintiff’s right to be subrogated to defendant against Watts. Plaintiff responds that Bell’s
affidavit was insufficient because it stated no facts to show that Bell knew that plaintiff
intended “to pursue its subrogation interest against Mr. Watts for any monies paid to
[d]efendant under the [UIM] policy.” Defendant replies that there was no requirement that
State Farm know what plaintiff intended to do at some later point.
¶ 19 We agree with defendant that there is no genuine dispute that State Farm knew in
advance of the settlement that plaintiff had a subrogation right against Watts and that this
was sufficient to defeat the invocation of the cooperation clause. Bell said plainly that she
knew in advance of plaintiff’s subrogation right. Although this statement was a conclusion,
it hardly required elaboration; Bell would have known whether she had been aware of
plaintiff’s subrogation right, a routine fact of insurance litigation. Under the case law, that
was sufficient. Thus, there is no genuine issue of fact as to whether plaintiff retained its
subrogation right, especially as, per Richter, it was ultimately plaintiff’s burden to prove that
defendant’s settlement cut off that right.
¶ 20 Further, even were we to hold that there was a genuine issue of material fact on the issue
of knowledge, the judgment still cannot stand, because plaintiff failed to raise a factual issue
on whether it was prejudiced by defendant’s noncompliance with the cooperation clause.
¶ 21 As plaintiff concedes, it may not enforce the cooperation clause unless it proves that
defendant’s failure to notify it timely of the settlement substantially prejudiced it. Cheek, 66
Ill. 2d at 499-500; Marsh, 58 Ill. App. 3d at 897. Plaintiff contends that it suffered prejudice
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because its subrogation right was abrogated by the settlement. Defendant responds that the
mere loss of the subrogation right does not satisfy the prejudice requirement and that,
because all the evidence showed that Watts was judgment-proof, there was, as a matter of
law, no prejudice. For the following reasons, we agree with defendant both that a judgment-
proof tortfeasor defeats a claim of prejudice and that Watts fit this description.
¶ 22 Apparently, only one Illinois opinion addresses whether a judgment-proof tortfeasor
negates an insurer’s claim of substantial prejudice from its insured’s violation of a
cooperation clause. The import of that opinion is unclear, however. In Mulholland v. State
Farm Mutual Automobile Insurance Co., 171 Ill. App. 3d 600 (1988), cited by neither party,
the plaintiff settled against Rudy, one of the alleged tortfeasors in the accident that injured
three people whose estates the plaintiff represented. Rudy paid the limit of her policy with
Allstate. The plaintiff did not timely notify State Farm of the settlement but sought UIM
benefits from State Farm. In response, State Farm invoked a cooperation clause, which
disallowed UIM benefits to an insured who settled a lawsuit without consent and thereby
“hurt[ ]” State Farm’s right to recover from the tortfeasor. The trial court held that the clause
did not apply. It explained that State Farm had not been “hurt” by a settlement because
nothing in the record showed that Rudy, who had been 16 years old at the time, had had any
assets other than the Allstate policy. Id. at 605.
¶ 23 The appellate court affirmed. The court agreed with the trial court that State Farm could
not have been “hurt” by the plaintiff’s settlement with a tortfeasor who had had no significant
assets other than the insurance policy that had supplied all the money for the settlement. Id.
This holding would appear to have been dispositive by itself; it meant that the cooperation
clause did not apply. Nonetheless, the court went on to consider State Farm’s argument that
it had been “hurt” by the loss of its subrogation rights, regardless of their value or lack of it.
The court did not decide whether the mere loss of subrogation rights established harm.
Instead it ruled that State Farm’s subrogation rights had not been cut off, because Allstate
had known before the settlement was reached of State Farm’s subrogation rights. Id. at 607.
¶ 24 Mulholland’s import is unclear. Read in isolation, the first holding that we have
summarized would seem to establish that showing “substantial prejudice” requires proving
more than the loss of subrogation rights; it requires proving further that those rights were
actually worth something other than the ability to litigate. Although the holding turned on
the meaning of the word “hurt” in the cooperation clause, we see no difference between
saying that an insurer is “hurt” by noncooperation and saying that the insurer is “prejudiced”
by it. Thus, for practical purposes, the Mulholland court held that a judgment-proof
tortfeasor, such as Rudy, defeats an insurer’s claim that it was substantially prejudiced by the
insured’s violation of a cooperation clause. Nonetheless, the court went on to consider
separately State Farm’s argument that it had been “hurt” merely by the loss of its subrogation
rights, even though the court had just stated that those rights were worthless.1 Thus,
1
As Marsh noted, the “apparent purpose” of a cooperation clause is to protect the insurance
company’s subrogation rights. Marsh, 58 Ill. App. 3d at 897; accord State Farm Mutual Automobile
Insurance Co. v. Fennema, 2005-NMSC-010, ¶ 9, 137 N.M. 275, 110 P.3d 491. Thus, it is curious
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Mulholland does not appear to be internally consistent. As Illinois case law is unclear, we
turn to foreign jurisdictions, where the law is both clear and consistent.
¶ 25 Numerous jurisdictions have held that an insurer may not rely on a technical violation
of a cooperation clause to deny coverage if the tortfeasor with whom the insured settled was
judgment-proof.2 See Muth v. AIU Insurance Co., 982 So. 2d 749, 752 (Fla. Dist. Ct. App.
2008); Bantz v. Bongard, 864 P.2d 618, 623-24 (Idaho 1993); Kapadia v. Preferred Risk
Mutual Insurance Co., 418 N.W.2d 848, 852 (Iowa 1988); Greenvall v. Maine Mutual Fire
Insurance Co., 1998 ME 204, ¶¶ 11, 12, 715 A.2d 949; MacInnis v. Aetna Life & Casualty
Co., 526 N.E.2d 1255, 1259-60 (Mass. 1988); Sorensen v. Farmers Insurance Exchange, 927
P.2d 1002, 1005 (Mont. 1996); Thrower v. Anson, 752 N.W.2d 555, 563 (Neb. 2008)
(interpreting statute requiring insurer to prove that it was “adversely affected” by settlement);
Fennema, 2005-NMSC-010, ¶¶ 11, 12, 137 N.M. 275, 110 P.3d 491; Hasper v. Center
Mutual Insurance Co., 2006 ND 220, ¶ 18, 723 N.W.2d 409; Federated Service Insurance
Co. v. Granados, 889 P.2d 1312, 1315-16 (Or. App. 1995); Hernandez v. Gulf Group Lloyds,
875 S.W.2d 691, 694 (Tex. 1994); State Farm Mutual Automobile Insurance Co. v. Green,
2003 UT 48, ¶¶ 31-34, 89 P.3d 97; Thiringer v. American Motors Insurance Co., 588 P.2d
191, 193 (Wash. 1978). The reason for this rule is straightforward: the mere right to sue the
tortfeasor is of no value if there is no reasonable likelihood of obtaining a judgment that is
worth the cost of litigation. As one court said in applying the prejudice rule to reject an
insurer’s reliance on a cooperation clause where the tortfeasor was judgment-proof:
“A judgment against [the tortfeasor] would not have been worth the paper it was printed
on and no reasonable person would have expended the costs, let alone the attorney’s fees,
it would have required to get it. When [the insurer] lost the opportunity to secure the
judgment, it lost nothing. Under our law, a technical and illusory ‘loss’ of this kind
cannot result in the forfeiture of insurance coverage.” Southeastern Fidelity Insurance
Co. v. Earnest, 395 So. 2d 230, 231 (Fla. Dist. Ct. App. 1981).
¶ 26 We agree that “[a]llowing an insurer to avoid coverage when it lost subrogation rights
which carried no reasonable possibility of collection beyond the tendered policy limits would
constitute a forfeiture and ‘would produce an undeserved windfall to the insurance
that the Mulholland court first held that the cooperation clause should be disregarded because the
worthlessness of State Farm’s subrogation rights meant that it had suffered no prejudice–yet then
considered State Farm’s argument that it had been prejudiced by the alleged loss of those rights.
2
This statement does not, of course, include jurisdictions that do not require a showing of
substantial prejudice. However, it does include one jurisdiction (New Mexico) that holds that the
breach of a cooperation clause creates a rebuttable presumption of prejudice (see Fennema, 2005-
NMSC-010, ¶¶ 11, 12, 137 N.M. 275, 110 P.3d 491), although of course there the burden of proof
is reversed. As Marsh makes clear, Illinois requires substantial prejudice and does not afford the
insurer a rebuttable presumption of prejudice based on the mere breach.
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company.’ ” Hasper, 2006 ND 220, ¶ 18, 723 N.W.2d 409 (quoting Bantz, 864 P.2d at 624).3
A cooperation clause exists to protect the insurance company’s substantial interests, not
merely to afford it the chance to litigate for the sheer joy of it. We also note that the
substantial-prejudice rule requires just that: substantial prejudice. Thus, the theoretical
possibility that the tortfeasor might win the lottery or inherit millions before the statute of
limitations runs (neither having happened here yet) does not create a reasonable possibility
that the insurer will obtain significant relief by pursuing an action against him. As one court
noted, allowing such farfetched theoretical possibilities to amount to substantial prejudice
would “completely negate” the prejudice requirement. Earnest, 395 So. 2d at 231.
¶ 27 Although the question of prejudice is ordinarily one of fact (see Marsh, 58 Ill. App. 3d
at 896; Hasper, 2006 ND 220, ¶ 19, 723 N.W.2d 409), a question of fact may become one
of law, amenable to disposition by summary judgment, if the undisputed facts allow only one
reasonable conclusion (see Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 171 (1981)).
That is the situation here. We hold that defendant was entitled to summary judgment because
he established as a matter of law that plaintiff cannot meet its burden to prove that it suffered
substantial prejudice from defendant’s settlement with Watts. Plaintiff adduced no evidence
that Watts had any assets of note.4 Defendant adduced unrebutted evidence that, from the
time of the accident through the close of Kirby’s investigation into Watts’ finances, Watts
had minimal assets, was subject to two unsatisfied judgments (with the possibility of more
judicially imposed financial obligations), and was serving a four-year prison term.5 Not only
do these facts defeat plaintiff’s motion for summary judgment, they establish that defendant
is entitled to judgment as a matter of law because plaintiff may not invoke its policy’s
cooperation clause in order to deny defendant UIM coverage. We reverse the judgment in
favor of plaintiff and enter judgment for defendant (see Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1,
1994)).
¶ 28 Judgment for plaintiff reversed; judgment for defendant entered.
3
We note that several courts have held that deciding whether an insurer was prejudiced by
the insured’s violation of a cooperation clause requires considering all of the relevant factors, such
as the amount of the tortfeasor’s assets, the likelihood of recovery via subrogation, the extent of the
insured’s damages, and the expenses and risks of litigating the insured’s cause of action. See
Kapadia, 418 N.W.2d at 852; Hasper, 2006 ND 220, ¶ 18, 723 N.W.2d 409; Green, 2003 UT 48,
¶ 33, 89 P.3d 97. This general statement is not inconsistent with the conclusion that, if the tortfeasor
is clearly judgment-proof, then the insurer cannot prove substantial prejudice.
4
We agree with the trial court that Walker’s financial situation was irrelevant because she
was neither the tortfeasor nor the insurer.
5
According to the Department of Corrections Web site, Watts was placed on mandatory
supervised release on September 29, 2011, and his anticipated discharge date is September 29, 2012.
www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx (last visited May 17, 2012).
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