Progressive American Insurance Co. v. Heimler
Progressive appealed a partial final judgment holding that its UM/UIM insured's unauthorized settlement with the tortfeasor's liability carrier, without the statutorily required notice and subrogation waiver under section 627.727(6)(a), did not prejudice Progressive because the tortfeasor was probably insolvent. The Fourth District affirmed, holding the unauthorized settlement creates a rebuttable presumption of prejudice that the insured may overcome, and clarifying that prejudice is measured by a counterfactual inquiry into whether a reasonably prudent insurer would have rejected the settlement and pursued the tortfeasor.
Key facts
- Progressive American Insurance Company appealed a trial court judgment finding that its insured's unauthorized settlement with a tortfeasor's liability carrier did not prejudice Progressive, despite the insured's failure to provide statutory notice and obtain a subrogation waiver under section 627.727(6)(a).
- The insured settled with the tortfeasor's carrier without Progressive's knowledge or consent, and Progressive argued it was prejudiced by this unauthorized settlement.
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Why it matters
This opinion harmonizes the competing 'probable insolvency' and 'is and will remain judgment proof' formulations across districts, holding they are not distinct standards, and supplies an affirmative analytical… — full analysis with a trial
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