I respectfully dissent from the majority opinion, which substantially changes the law of uninsured motorist litigation. The majority holds that one sentence in a subrogation letter raised a fact issue that the insurer consented in advance to be bound by a default judgment. I disagree.
Azima was injured by an uninsured motorist. Her own carrier, State Farm, paid her certain monies and then notified her in writing that it would be seeking a subrogation recovery. State Farm's letter to Azima then said that if she wanted compensation for damages not covered by her policy with State Farm she would have to seek payment from the tortfeasor or his insurance company.
Azima sued the tortfeasor and took a $1,000,000 default judgment against him. She then sued State Farm and contended that it had consented to her suit against the tortfeasor; it therefore was bound by the default judgment and owed its $100,000 uninsured motorist policy limits. The trial court disagreed and tried the case as an ordinary uninsured motorist case: It submitted the tortfeasor's negligence and proximate cause in one question, and Azima's damages in a second question. The jury found negligence and proximate cause, and damages of $7000. The court rendered judgment for Azima against State Farm for that amount.1
I disagree with the majority's holding that the sentence in the subrogation letter — which *Page 904 said only that Azima could seek payment for uninsured damages from the tortfeasor — raises a fact issue of written consent. The "no evidence" and "more than a scintilla" cases do not mean that written language may be taken out of context to raise a fact issue. On the contrary, we must read the policy language to determine what kind of evidence will prove consent. My disagreement with the majority is not over the no-evidence standard. We disagree about a question of substantive law: what must Azima show in order to raise an issue of State Farm's consent. As I read the insurance policy, it requires evidence that State Farm consented to let Azima sue the tortfeasor and bind it with the judgment. The record shows only that State Farm advised Azima that if she wanted to recover any damages that her State Farm policy did not insure, she would have to seek recovery from the tortfeasor.
Thus, under the insurance policy, it is not enough to show that State Farm consented for Azima to seek additional damages from the tortfeasor. The policy requires proof that State Farm consented to be bound by Azima's judgment against the tortfeasor.
The written-consent provision in the policy shows that the insurer was not to be bound by a judgment unless it had consented to the suit: "Any judgment for damages arising out of a suit brought without our written consent is notbinding on us." (emphasis added). The subrogation letter from State Farm to Azima says:
The above captioned file has been referred to the Subrogation Department to pursue collection of your deductible plus the monies State Farm paid for repairs, rental and/or uninsured motorist claims. Please understand, if you have any out of pocket expenses, that are not covered by your policy, you will have to contact the other party or their insurance carrier and make a claim for reimbursement. (emphasis added)
In this letter, the insurer is saying: Your policy did not cover all types of damages; if you want compensation for such uninsured items of damages, you will have to seek recovery from the tortfeasor or his insurer.
The emphasized sentence makes clear that State Farm was not consenting to a suit against an uninsured motorist in thesense that it was agreeing to be bound by the judgment up toits policy limits. The sentence in the subrogation letter is not evidence of consent to let the policyholder sue the uninsured motorist, take a judgment, and then bind the insurer with that judgment.
The record shows a fair trial of an ordinary uninsured motorist case in which the jury simply awarded the plaintiff less than she desired. I would affirm the judgment awarding Azima $7000 from State Farm.