NO. 27429 Thursday, January 14, 2009 – 10:15 a.m.

CIVIL NO. 01-1-0508 LIBERTY MUTUAL INSURANCE CO., Plaintiff-Appellant/Cross-Appellee, vs. SENTINEL INSURANCE CO., LTD.,and HARTFORD INSURANCE GROUP,Defendant-Appellee/Cross-Appellee, and ZASHELL LABRADOR and PEMCO MUTUAL INSURANCE CO., Defendant-Counter-Claimant-Appellee/Cross-Appellant, and ELISA TOLFREE, JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10, ROE “NON-PROFIT” CORPORATIONS 1-10, and ROE ENTITIES 1-10, Defendants.

Attorney(s) for Plaintiff-Appellant/Cross-Appellee
Thomas Tsuchiyama (Sumida & Tsuchiyama)

Attorney(s) for Defendant-Counter-Claimant-Appellee/Cross-Appellant
Phillip L. Carey

COURT: Recktenwald, CJ; Watanabe and Foley, JJ..

[ Listen to the entire audio recording in mp3 format ]

Brief description:

Plaintiff-Appellant/Cross-Appellee Liberty Mutual Insurance Company (Liberty Mutual) appeals and Defendant-Counterclaimant/
Appellee/Cross-Appellant Zashell Labrador (Labrador) cross-appeals from a certified final judgment that determined that Liberty Mutual was obligated to pay $50,000 in underinsured motorist (UIM) benefits for injuries that Labrador sustained as a passenger in a car driven by Defendant Elise Tolfree (Tolfree). Tolfree alleged that the accident occurred when she veered off the road to avoid hitting an uninsured, unidentified truck (phantom truck).

Tolfree’s car was insured under two motor vehicle policies: one providing $100,000 in liability coverage and $100,000 in uninsured motorist (UM) coverage, and the other providing $100,000 in liability coverage and $50,000 in UM coverage. Labrador was insured by her father’s policy with Liberty Mutual, which provided stacked UM coverage totaling $140,000 and stacked UIM coverage totaling $140,000.

An arbitration panel determined that Labrador’s damages amounted to $250,000 and that Tolfree was sixty percent ($150,000) at fault and the phantom truck driver was forty percent ($100,000) at fault. Labrador reached settlements with Tolfree’s insurers for liability and uninsured motorist (UM) benefits and then sought UM and UIM benefits from Liberty Mutual.

Liberty Mutual contends that the circuit court erred when it (1) held that Labrador could bring a UIM claim against Liberty Mutual based on Tolfree’s joint and several liability for all of Labrador’s damages; (2) failed to credit Liberty Mutual with the amounts that Labrador received in UM benefits from Tolfree’s insurers in determining that Labrador was underinsured; and (3) awarded attorney’s fees to Labrador.

Labrador argues in her cross-appeal that the circuit court erred by failing to (1) award her prejudgment interest; and (2) invalidate, as against public policy, the competing “other insurance” clauses included in the overlapping policies of Liberty Mutual and Tolfree’s two insurers, which limited the respective insurers’ liability to pay UM or UIM benefits.