The issues in this case are virtually identical to those in Silvers v. Horace Mann Ins. Co., 324 N.C. 289, 378 S.E. 2d 21 (1989), filed contemporaneously with this opinion. Factually, this case differs only in that the insurance policy at issue preserved, rather than waived, the right of subrogation. This difference is not material to our disposition of this appeal.
For the reasons fully and aptly stated in Silvers, we hold that plaintiffs entry into a settlement with the tort-feasor without defendant’s consent does not bar her claim for underinsured motorist benefits as a matter of law.
The decision of the Court of Appeals is affirmed. However, the case must be remanded to the Court of Appeals for further remand to the trial court to determine whether defendant was
Modified and Affirmed.