Michael F. Schmidt Wins Underinsured Heart Attack Death Case And Saves Client $250,000
Jimmy Kasmikha, as Personal Representative of the Estate of Selma Kasmikha, Deceased v Integon National Insurance Company, Oakland County Circuit Court, plaintiff filed a claim for underinsured motorist benefits seeking the underinsured motorist limits of $250,000 as a result of an auto accident with an alleged underinsured motorist which allegedly resulted in a heart attack and death of Selma Kasmikha. The plaintiff initially sued the underinsured motorist, who settled for the policy limits of $100,000. The plaintiff then filed the underinsured motorist claim against Integon. We filed a motion for summary disposition arguing that the underinsured motorist claim was barred by the release entered in the underlying action which released the underlying tortfeasor and “all other persons, firms, corporations, liable or who might be claimed to be liable. . .” The plaintiff responded that Integon had approved the underlying settlement, and that the parties to the underlying case did not intend to release the underinsured motorist claim. The plaintiff and the insurer of the underlying defendant submitted a reformed release indicating that their intent was specifically not to release the underinsured motorist claim. In addition, the plaintiff filed a cross-motion for summary disposition arguing that there was no issue of fact, and that the underinsured motorist was responsible for the accident and the experts had established that the decedent’s heart attack was a result of the auto accident. We responded that there were issues of fact regarding who caused the accident and whether the heart attack was a result of the auto accident, but more importantly, that Integon was a third party beneficiary of the underlying release and that Integon’s rights became vested as soon as the release was executed and thereafter the plaintiff and the underinsured motorist and his insurer had no right to make any modification of the release to the detriment of Integon. The trial court agreed with all of our arguments and granted summary disposition in favor of Integon.