Full title: Economy Premier Assurance Company, Appellant, v. Nancy Hansen, Respondent…
Court: Minnesota Court of Appeals
Date published: Aug 15, 2011
Facts
On August 6, 2005, respondent Nancy Hansen sustained injuries in a motor-vehicle accident while riding as a passenger in respondent Marsha Sawyer’s vehicle. The Sawyer vehicle was insured by appellant Economy Premier Assurance Company (Economy) with underinsured motorist (UIM) coverage in the amount of $100,000. Sawyer’s vehicle was struck from behind by a vehicle driven by respondent Alex Davis and owned by respondent Christopher Davis. On February 8, 2008, Hansen commenced a tort action against Alex and Christopher Davis.
On May 27, Hansen’s attorney sent a letter advising Economy of the tort action, the December 15 trial date, and the Davises’ $50,000 liability insurance limit—the letter enclosed copies of the complaint and answer.
The economy did not attempt to intervene in the tort action.
Before trial, Hansen and the Davises decided to resolve the tort action through binding arbitration. Hansen notified Economy of this decision by letter on November 13.
On December 9, Economy filed a notice of intervention and complaint in intervention. Hansen objected. The district court denied Economy’s request to intervene, determining that its interests were “adequately protected by existing parties.” The parties arbitrated the tort claim on September 2, 2009, resulting in an award in Hansen’s favor of $172,079.86.
Issue
Whether the binding arbitration proceeding served as a settlement or the conclusion of the tort action.
Decision
In contending that Hansen’s notice did not comply with Malmin, Economy emphasizes the lack of a written arbitration agreement, which would have conclusively established whether the arbitration would function as a settlement or a conclusion of the tort action. The economy also cites the district court’s denial of its intervention request which left its rights inadequately protected. We address each argument in turn.
Hansen’s initial letter notified Economy that she had filed an action for personal injuries related to the accident and advised Economy of its “right to intervene and participate in” the case. The letter also informed Economy of the trial date, the amount of liability insurance available to the Davises, and Hansen’s position that Economy would “be bound by the verdict” under Malmin. Economy does not dispute that it received this letter and that it did not attempt to intervene. Economy’s arguments that the two notices were insufficient because there was no written arbitration agreement is unavailing. As the district court noted, the existence of a written arbitration agreement is “not relevant” to the notice issue. Malmin requires written notice after the commencement of the tort action to permit the UIM carrier to evaluate its potential exposure and the merits of seeking to intervene. Id. Malmin does not require an insured who decides to arbitrate her tort claim to prepare a written arbitration agreement.
The district court’s denial of Economy’s request to intervene also does not undermine the adequacy of the Malmin notice. Malmin does not require that an insurer’s motion to intervene be granted; Malmin protects an insurer’s right to “attempt to intervene.” See Malmin, 552 N.W.2d at 728 n.4. Whether a party may intervene depends upon the principles outlined in Minn. R. Civ. P. 24.01 (allowing intervention “unless existing parties adequately represent the applicant’s interest”). See Erickson v. Bennett, 409 N.W.2d 884, 887-88 (Minn. App. 1987). Malmin did not change the law on intervention. Accordingly, a UIM carrier does not have an absolute right to intervene in a tort action. While Economy maintains that its rights were not adequately protected, the district court determined otherwise and the denial of Economy’s request to intervene is not before us on appeal. On this record, we conclude Hansen’s Malmin notice was adequate as a matter of law, and the district court properly granted summary judgment in favor of Hansen.
Affirmed.