dissenting.
I must respectfully dissent. Plain and unambiguous language must be given its apparent and obvious meaning. Matter of Grissom (1992), Ind., 587 N.E.2d 114, 116. This is true even if one might suspect or hope that the legislature would amend the statute upon recognizing the effect of the language chosen.
I agree with much of what the majority says regarding the shortcomings of the results of reading the statute as I am convineed it must be read. However, I cannot agree with the majority's revision of the statute. Ind.Code § 34-4-41-8 states that this statute applies:
"to an insurer claiming subrogation or reimbursement rights to the proceeds of a settlement or judgment resulting from a legal proceeding commenced by an insured against a third party legally responsible for personal injury for which payment is made by the insurer."
iIC. § 34-4-41-8. The phrase "resulting from a legal proceeding" clearly limits the phrase "proceeds of a settlement or judgment." Ind.Code § 34-4-41-8. In addition, the word "commenced" is a term of art and implies that a party has initiated a suit in court. In fact, Black's Law Dictionary states that a "civil action in most jurisdictions is commenced by filing a complaint with the court." Black's Law Dictionary 268 (6th ed. *2981991). Thus,, the legislature's use of the word "commenced" suggests that it intended to limit the statute to those proceedings which have been filed in court.
Furthermore, Black's Law Dictionary defines "legal proceedings" as "all proceedings authorized or sanctioned by law, and brought or instituted in a court or legal tribunal, for acquiring of a right or the enforcement of a remedy." Black's Law Dictionary 896 (6th ed. 1991) (emphasis added). This definition demonstrates that "settlement negotiations" are not ordinarily considered to be "legal proceedings."
The majority relies on the Alternative Dispute Resolution Rules to buttress its argument that "legal proceedings" include "settlement negotiations." The preamble of the Alternative Dispute Resolution Rules states:
"These rules are adopted in order to bring some uniformity into alternative dispute resolution with the view that the interests of the parties can be preserved in settings other than the traditional judicial resolution method."
A.D.R. pmbl. Rule 1.1 goes on to state: "Alternative dispute resolution methods which are recognized include settlement negotiations...." A.D.R. 1. The majority relies on this Rule to support its claim that "settlement negotiations" are included in the general description of "legal proceedings", but it fails to consider the limiting language in Rule 1.2. This Rule states: "Alternate dispute resolution methods which are governed by these rules are (1) Mediation, (2) Arbitration, (8) Mini-hearings, (4) Summary Jury Trials, and (5) Private Judges." AD.R. 1.2. Clearly, settlement negotiations are not governed by the Alternative Dispute Resolution Rules. Thus, I do not think the general reference to "settlement negotiations" in Rule 1.1 may be used to transform them into "legal proceedings."
Cook v. Humana Health Care Plan, Inc. (1994), Ind.App., 686 N.E.2d 166, quoted by the majority in this case, involved a legal proceeding arising out of a worker's compensation claim. The issue that prompted the language quoted by the majority was whether the term "a third party legally responsible for personal injury" in 1.C. § 84-4-41-8 was limited to tort-feasors or included an employer liable under worker's compensation and the employer's insurer. The conclusion that the term included a liable employer did no damage to the plain language of the statute and gave effect to the expressed intent of the legislature. Consequently, the reference to unjust enrichment quoted by the majority lends no weight to its construction of this statute.
Further, the legislature may well have believed that the cost of an attorney should not be thrust upon the subrogated insurer without its consent where commencement of a legal proceeding would be unnecessary because of settlement and the insured could take into account the subrogation interest of the insurer as an economic factor in the settlement amount that would be acceptable.
In short, the statute clearly does not apply to this case where no legal proceeding had been commenced at the time the settlement was made. The trial court was correct to grant the summary judgment to Allstate, and we should affirm.