(dissenting) :
Not being persuaded, by either the proposed opinion of Mr. Justice Littlejohn or the concurring opinion of Mr. Justice Brailsford, that the judgment below should be reversed, I most respectfully dissent.
The issues were presented to the court below for decision on a written stipulation of facts and the order appealed from indicates that additional facts, not contained in the written stipulation, were orally stipulated to upon the hearing. Total medical expenses advanced by Nationwide prior to the judgment amounted to $3,488.95. The extent of the medical bills would indicate that the injuries sustained by Mr. Harrington were quite serious and the jury verdict in the amount of $5,412.05 gives rise to the inference that the jury compromised the issue of liability by compensating Mr. Harrington only in part for his injuries and damage.
It would appear that when advance medical payments were being made to Harrington he was unaware of the medical payments coverage in Nationwide’s policy, provided for his benefit, let alone any of the policy provisions now relied upon by Nationwide.
Assuming, without necessarily conceding, the validity of the proviso to the effect that no payment would be made under the medical payments coverage in the absence of the written agreement therein referred to, such accorded Nationwide the option of two courses of action. It could have if it so desired, promptly advised Harrington that it was responsible for his medical expenses up to the sum of $1,000.-*27100, without regard to any tort liability on the part of Burch, and taken from Harrington the written agreement in accordance with the proviso. On the other hand, it could withhold such information from Harrington, take no written agreement from him and gamble upon being able to negotiate an advantageous settlement of all its liability under its policy, with Harrington being ignorant of the fact that Nationwide owed him $1,000.00 in any event. It is clearly inferable that it advisedly chose the latter course in this case as there is no other reasonable or logical explanation of the failure of Nationwide to take such written agreement.
Nationwide’s efforts to arrive at an adjustment favorable to it were, of course, unsuccessful and it now asks this Court to restore it to the same position it would have occupied had it laid all of its cards on top of the table in dealing with Harrington and taken the written agreement in accordance with the proviso. I agree that each case should be determined on the basis of the policy provisions and the facts and circumstances involved. As I see it Nationwide clearly waived the proviso, deliberately making its own bed in which we should leave it lying.
As to the basis of Mr. Justice Brailsford’s concurrence, I agree that strictly speaking this is not an action on the insurance contract, but I think the real issue is substantially the same, such issue being the extent of liability of Nationwide under its insurance contract and the facts and circumstances of this case. As pointed out by Justice Brailsford, the authorities do not appear to be in accord as to whether or not, and under what circumstances, an insurer is entitled to take credit against a tort judgment for money paid by it under a medical payments endorsement. To a large extent the various cases turn upon the facts and policy provisions involved in the individual cases. In Yarrington v. Thornburg (Del. Supr. 205 A. (2d) 1, 11 A. L. R. (3d) 1110, Annot. 1115), the judgment exceeded the liability *272limit of the policy and the offset allowed inured to the benefit of the insured who had paid the premium on the policy and not to the insurer who received the premium. I do not agree with the proposition that the same answer is required here, as though the verdict had exceeded the liability coverage, with the burden of a double payment in fact falling on the insured’s estate. In view of the jury verdict here, which I think obviously was a compromise one, it cannot be said with any degree of certainty that the denial of the offset would in fact result in Harrington receiving double payment. In any event it is my view that the weight of authority from other jurisdictions supports the disallowance of an offset under the facts and circumstances of this case. In addition to cases cited in the annotation following the Yarrington case, several other recent decisions are persuasive of the result which I would reach. See, Moorman v. Nationwide Mutual Insurance Company, 207 Va. 244, 148 S. E. (2d) 874; Blocker v. Sterling, 251 Md. 55, 246 A. (2d) 226; Beschnett v. Farmers Equitable Insurance Company, 275 Minn. 328, 146 N. W. (2d) 861.
Under the respective views of my colleagues, neither of them found it necessary to consider the subrogation provisions of the policy under which Nationwide also contends it should be entitled to an offset and I accordingly, for the present, intimate no opinion thereabout. Consideration of such will remain unnecessary in the event a majority of the court should conclude that the judgment below should be reversed upon either of the bases proposed in the respective opinions.
Lewis, J., concurs.