concurring.
I concur in the majority’s decision that the circuit court must be reversed. However, the majority’s statement that “the right to subrogation does not accrue until there has been a legal determination by a court that she has |17been made whole” may mislead. Based on this language, the reader would assume that every case involving subrogation must be tried. That is not so. The right to subrogation does not accrue unless the insured has been made whole, and a determination that the insured has been made whole may be reached by agreement between the parties, or, where the parties cannot reach an agreement, the issue may be litigated and decided by the court sitting as the finder of fact.
Riley has only added confusion to this case by repeatedly asserting that State Farm filed and asserted a lien when that is clearly not the case. State Farm did not file a lien, nor did it assert a lien.
State Farm asserted a claim under section 28-89-207 for reimbursement, stating in a letter that “[w]e understand that our right to recovery is contingent upon your client being made whole by the settlement you negotiate with the tortfeasor or their insurance carrier.” State Farm did state a belief that the amount recovered by Riley was “a sufficient amount to fully compensate Mrs. Riley for her injuries.” This was an opinion stated in an attempt to settle the issue of the amount of subrogation, as is made clear by the statement in that same letter that in an effort to settle the dispute, State Farm would reduce its subrogation claim from $5000 to $3000. In its answer, State Farm consistently stated that it believed that Riley was made whole by the settlement. State Farm did not assert that it had the authority to make a binding determination that Riley was made whole, as the majority states. State Farm stated in its answer that “neither Plaintiff nor Plaintiffs counsel may unilaterally decide that issue. 11sWhether or not an insured has been ‘wholly compensated’ is for the Court to decide sitting without a jury.” Such would be the case where the issue is litigated. However, the amount of subro-gation may also be reached by settlement by the parties.
State Farm put the parties on notice, including the tortfeasor’s insurance carrier, that there was an issue of subrogation in this ease that would have to be resolved before the case could be fully and finally settled. The circuit court erred in characterizing a claim for contingent subrogation reimbursement as an “unenforceable lien.”
It was in the best interests of Riley and State Farm that State Farm make its claim known as early as possible in the dispute between Riley and the alleged tortfeasor. Only when all the possible claims are identified may cases be effectively settled. Obviously, the existence of a contingent claim for reimbursement of the insurance payments would affect the parties’ decisions regarding the amount to be paid in settlement. Equally as obvious, it would come as an unpleasant surprise to an insured to receive a settlement payment only to then have the insurer assert a right to a portion of the settlement proceeds. Also, State Farm would need to make its claim as early as possible to foreclose against the insured asserting defenses such as waiver and laches. State Farm would not be wise to wait and suffer the consequences of an assertion that it had been sitting on or hiding its claim.
This case should be reversed to permit the parties to settle on the amount owed in subrogation or to litigate the issue. Riley has already initiated an action in which she asserts that she was not made whole, and she may wish to proceed with that action.
|1flThe same issues decided in this case are also at issue in the companion cases of Bradley v. State Farm Mutual Automobile Insurance Co., 2011 Ark. 257, 2011 WL 2412780 and Baxter v. State Farm Mutual Automobile Insurance Co., 2011 Ark. 260, 2011 WL 2412785 decided this same date. I concur in those cases on the same basis as in the present case. .
HENRY, J., joins in this concurrence.