Washington Case Laws on Subrogations The Washington State Supreme Court specifically holds in Liberty Mutual v. Tripp, 144 Wn.2d 1, 22, 25 P.3d 997 (2001), that there is no presumption of full compensation simply because a plaintiff settles for less than policy limit. The issue of full compensation is a factual question that may be determined by the jury.
There, Liberty mutual relied on Allstate Insurance co. v. Batacan, 89 Wash.App. 260, 266, 948 P.2d 1316 (1997), for the proposition that the insured settles is impliedly fully compensated. The court in Tripp overruled Batacan. See, Allstate Insurance co. v. Batacan, 139 Wash.2d 443, 986 P.2d 823 (1999).
Truong v. Allstate (2001).
In Truong, the court sided with Allstate ruling that accepting less than the policy limit of $25,000 not because Truong was not made whole but because Truong failed to meet his burden of rebutting the evidence set forth by Allstate that was fact-specific to prove Truong was not made whole. There, Truong relied on two paragraphs of expert opinion by an attorney, which the court found entirely conclusory and unsupported with facts. Thus, both 1st party and 3rd party in that agreed on 50% property damage liability and the adjuster thought he was paying out at 50% liability.
Elovich v. Nationwide Ins. Co., 104 Wn.2d 543, 556, 707 P.2d 1319 (1985), our Washington State Supreme Court cited for the proposition that the insurer "is entitled to recover only if the released entities' negligence exceeded the settlement figure as a percentage of the plaintiffs total injuries." The Elovich court explained:
In other words, to establish prejudice [the insurer] must show (1) the percentage of negligence of [each of three tortfeasors]; (2) the total losses the plaintiff suffered; (3) that the settlement as a percentage of plaintiff's total injuries was less than the percentage of the settling entities' comparative negligence. Only if the latter percentage exceeds the former will [the insurer's] subrogation rights have been prejudiced. Otherwise the rule from Thringer v. American Motors Ins. Co., 91 Wn.2d at 222, applies: the insurance company's subrogation rights arise only after the plaintiffs have received full compensation for their injuries. The Defense case other than Truong v. Allstate Some insurances will relied on Hall v. Encompass ins. co. which relied upon Peterson v. Safeco ins. Wash. Ct. App (1999), which, in turn, relied on a decision of the Court of Appeals in Allstate Ins. co. v. Batacan (1997) to argue that settlements for less than the tortfeasor's liability limits raise a presumption that the insured have been made whole. However, the Washington Supreme Court in Liberty Mutual v. Tripp, 144 Wn.2d 1, 22, 25 P.3d 997 (2001), had put this issue to rest by overruled Batacan. Further, there is no other precedent cases for a position that settlement for less than the tortfeasor's liability limits magically give raises to a presumption of full compensation.