Branch v. Travelers Indemnity Company , 324 N.C. 430 ( 1989 )

378 S.E.2d 748 (1989) 324 N.C. 430

David E. BRANCH, Administrator of the Estate of Cheryl Lynn Branch
v.
The TRAVELERS INDEMNITY COMPANY and Unigard Mutual Insurance Company.

No. 457PA88.

Supreme Court of North Carolina.

May 4, 1989.

Tucker, Hicks, Hodge and Cranford, P.A. by John E. Hodge, Jr., Charlotte, for plaintiff-appellee.

Wade and Carmichael by J.J. Wade, Jr., Charlotte, for defendant-appellant.

FRYE, Justice.

The issues in this case are virtually identical to those in Silvers v. Horace Mann Insurance Company, 324 N.C. 289, 378 S.E.2d 21 (1989), and Parrish v. Grain Dealers Mutual Insurance Company, 324 N.C. 323, 378 S.E.2d 419 (1989). Factually, this case differs only in that a settlement was reached without a lawsuit after a failed attempt to procure the consent of the underinsured motorist coverage carrier to the settlement. These differences are not material to our disposition of this appeal.

For the reasons fully and aptly stated in Silvers and Parrish, we hold that plaintiff's entry into a settlement with the tortfeasor without defendant's consent does not bar his 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.

WEBB, Justice, dissenting.

I dissent for the reasons stated in my dissent in Silvers v. Horace Mann Insurance Company, 324 N.C. 289, 378 S.E.2d 21 (1989).

MEYER, J., joins in this dissenting opinion.