Nationwide Mutual Insurance v. Webb

Eldridge, J., delivered the opinion of the Court. The Maryland Legislature has mandated that every motor vehicle liability insurance policy issued, sold or delivered in this State after July 1, 1975, shall contain coverage in certain minimum amounts "for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained in an accident arising out of the ownership, maintenance, or use of such uninsured vehicle.” 1 Maryland Code (1957,1979 Repl. Vol.), Art. 48A, § 541 (c). That subsection, known as the uninsured motorist law, goes on to provide, inter alia, that any provision in an uninsured motorist endorsement which requires the submission to binding arbitration of any dispute between the insured and insurer is prohibited and shall be of no legal effect. 2 ⁷²⁵ We granted petitions for writs of certiorari in these two cases, and ordered that the cases be consolidated, because both petitions seemed to encompass the same important legal issue arising under the uninsured motorist statute.

That issue concerned the enforceability, in light of the statute and the surrounding circumstances, of a "consent to sue” clause in an uninsured motorist endorsement. The clause provided that no judgment against any person alleged to be legally responsible for the insured’s injuries will be conclusive, as between the insured and the insurer, on the issues of the liability of that person to the insured or the amount of damages which the insured is entitled to recover, "unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the [insurance] Company.” Although both cases had appeared to present this issue, it is now clear that only one of them, Maryland Automobile Insurance Fund v. Franz, actually involves the question. Consequently, we shall deal with the cases separately in this opinion. I. Maryland Automobile Insurance Fund v. Franz On January 1, 1976, the Maryland Automobile Insurance Fund (MAIF) issued, upon payment of the requisite premium, an automobile liability insurance policy to Anthony J. Franz, providing insurance coverage, including an ⁷²⁶ uninsured motorist endorsement, on Mr. Franz’s taxicab from January 1, 1976, until January 1, 1977. 3 Under one of the "coverage” sections of the endorsement, it was provided that no default judgment against anyone "alleged to be legally responsible” for the insured’s damage "shall be conclusive, as between the insured and the company,” as to liability or damages "unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the Company.” The same coverage section provided that the insured’s legal entitlement to recover against the uninsured motorist and the amount of that recovery, in the absence of an agreement between the insurer and insured, was to be determined by arbitration. 4 ⁷²⁷ In addition, there was an exclusion in the uninsured motorist endorsement if the insured or his representative "without written consent of the company, made any settlement with any person or organization who may be legally liable” for the insured’s bodily injury or property damage.

Finally, the endorsement in the MAIF policy contained a detailed arbitration clause. 5 On January 17, 1976, the insured, Mr. Franz, while operating his taxicab, was injured in a collision in Baltimore City between his vehicle and an automobile owned and operated by John Henry Adams. The insurance policy on Adams’s automobile had been cancelled the day before because of nonpayment of premium, and thus Adams was an uninsured motorist. It is undisputed that Franz timely notified MAIF of the accident, made a claim under the uninsured motorist endorsement of his policy, submitted proof of his injuries, and demanded payment from MAIF. The insurer refused to pay Franz’s claim without giving any reason for its refusal. ⁷²⁸ After MAIF’s rejection of his claim, Franz, in September 1976, filed in the District Court of Maryland, sitting in Baltimore City, a tort action against the uninsured motorist Adams, seeking recovery of his damages resulting from the accident.

Also in September, Franz, by his attorney, sent MAIF a letter notifying the insurer of the suit, enclosing copies of the "suit papers,” and requesting that MAIF appear in the matter. MAIF replied by a letter dated September 28, 1976, informing Franz’s attorney that it would not participate in the case. Franz’s attorney, on December 2,1976, and again on January 3, 1977, wrote to MAIF and informed the insurer that the tort suit was scheduled for trial on January 25, 1977, that, if MAIF did not intervene and enter a defense, Franz would seek a default judgment against Adams (who, apparently, had made it known that he would not defend), and that Franz would take steps to enforce the judgment against MAIF under the uninsured motorist endorsement of the policy. At the trial of the tort suit on January 25, 1977, MAIF did not appear and a default judgment was entered in favor of Franz and against Adams for $3,182.84 plus court costs.

Shortly thereafter, Franz notified MAIF of the judgment and requested payment, but the insurer refused. Franz then instituted the present contract action against MAIF in the Superior Court for Baltimore City, claiming damages of $3,196.84 (consisting of the $3,182.84 tort judgment plus $14.00 court costs in the tort action). Franz filed a motion for summary judgment, taking the position that MAIF, having had notice and an opportunity to intervene in the tort action but having refused to intervene, was liable as a matter of law for the amount of the tort judgment against Adams. Franz contended that the clause in the uninsured motorist endorsement, requiring MAIF’s consent for the prosecution of the tort suit in order for the insurer to be bound by the default judgment, was unenforceable under the uninsured motorist law.

MAIF opposed the motion for summary judgment on the ground that it had not consented to the prosecution of the tort suit against Adams and that, therefore, it was not bound ⁷²⁹ by the default judgment under the terms of the endorsement. MAIF’s position was that Franz was required to relitigate, in the contract action, the issues of Adams’s tort liability and the amount of damages. MAIF’s answer did not suggest that it had any contract defenses apart from the issues resolved in the tort suit; instead, the insurer relied entirely upon its asserted right under the policy to have the Superior Court, in the contract action, "adjudicate the legal liability of the uninsured motorist, John Henry Adams, to the Plaintiff, Anthony J. Franz ....” The Superior Court, agreeing with MAIF’s position, denied the motion for summary judgment and ordered that the case be tried. At the subsequent non-jury trial, MAIF defended on the ground that Franz’s contributory negligence had been the proximate cause of the collision between his taxicab and Adams’s uninsured automobile.

At the conclusion of the trial testimony, the court found that Franz was not contributorily negligent and awarded him judgment in the amount of $3,000.00 plus costs. MAIF appealed to the Court of Special Appeals, contending that the trial court’s findings were clearly erroneous and that Franz was guilty of contributory negligence. Franz took a cross-appeal, insisting that the issues in the earlier tort case should not have been re-litigated in the contract action, that under the circumstances MAIF was bound by the judgment in the tort suit, and that, therefore, he was entitled to a judgment for $3,196.84 instead of the $3,000.00 awarded. The Court of Special Appeals, agreeing with Franz, modified the judgment of the Superior Court of Baltimore City by raising the award to the same figure as the judgment in the tort case, and, as modified, affirmed.

The intermediate appellate court, in an opinion by Judge Lowe, held that the clause in the uninsured motorist endorsement, requiring the insurer’s consent to prosecute a tort suit against the uninsured motorist in order for that judgment to be binding, was void under the statute and that an insurer, having notice of the tort action and an opportunity to intervene, was ⁷³⁰ bound by the determinations in that tort action regarding the liability of the uninsured motorist to the insured and the amount of damages, 44 Md.App. 547 , 409 A.2d 1127 (1980). This Court then granted MAIF’s petition for a writ of certiorari, 287 Md. 754 . This Court has consistently rejected attempts by insurers, as well as insureds and the insurance commissioner, to circumvent the plain language of the required coverage provisions of the statutes dealing with automobile insurance. Yarmuth v. Gov’t Employees Ins.

Co., 286 Md. 256 , 407 A.2d 315 (1979); Reese v. State Farm Mut. Auto. Ins., 285 Md. 548 , 403 A.2d 1229 (1979); State Farm Mut. v. Ins. Comm’r, 283 Md. 663, 670-674 , 392 A.2d 1114 (1978); Government Employees Ins. v. Harvey, 278 Md. 548 , 366 A.2d 13 (1976); Travelers Ins.

Co. v. Benton, 278 Md. 542 , 365 A.2d 1000 (1976); State Farm v. Md. Auto Ins. Fund, 277 Md. 602 , 356 A.2d 560 (1976); Maryland Auto. Ins. Fund v. Stith, 277 Md. 595 , 356 A.2d 272 (1976).

Furthermore, in Reese v. State Farm Mut. Auto. Ins., supra, 285 Md. at 553 , and in State Farm v. Md. Auto. Ins.

Fund, supra, 277 Md. at 605 , we held that conditions or limitations in an uninsured motorist endorsement, which provide less than the coverage required by the statute, are void. This uniformly recognized principle was well-stated by a Kansas Court as follows: "[A]ny provisions of the insurance policy which purport to condition, limit or dilute the unqualified uninsured motorist coverage mandated by the statute are void and unenforceable.” Barnett v. Crosby, 5 Kan.App.2d 98 , 612 P.2d 1250, 1252 (1980). In our view, the Court of Special Appeals correctly applied this principle in holding void the "consent to sue” clause relied upon by MAIF. Two types of "consent to sue” clauses have been included in uninsured motorist endorsements used throughout the country, and the typical endorsement usually contains one or the other of these clauses.

Under one type, coverage is completely lost if the insured prosecutes to judgment a tort action against the uninsured motorist without obtaining the ⁷³¹ consent of his insurance carrier. Under the other type, coverage is not lost if the insured prosecutes the tort suit without his insurer’s consent, but it is provided that the tort judgment shall not be conclusive or binding upon the insurer regarding the tort liability of the uninsured motorist and the amount of damages. The typical uninsured motorist endorsement also provides that the insured’s entitlement to recover under the endorsement, and the amount, should be settled by binding arbitration, upon the demand of either party, if the insured and insurer cannot agree. 6 It is often said that the purpose of the "consent to sue” clauses is to supplement the arbitration clause or to protect the insurer’s right to have its liability determined by binding arbitration, and that where statutes or public policy invalidate the binding arbitration provision, the "consent to sue” clauses fall with the arbitration clause. Vernon Fire and Casualty Ins.

Co. v. Matney, 170 Ind.App. 45 , 351 N.E.2d 60 (1976); Indiana Insurance Company v. Noble, 148 Ind.App. 297 , 265 N.E.2d 419, 429-432 (1970); Mizer v. State Automobile & Casualty Underwriters, 195 N.W.2d 367, 372-373 (Iowa, 1972); Bielski v. Wolverine Ins. Co., 379 Mich. 280, 288 , 150 N.W.2d 788 (1967); Kisling v. MFA Mutual Insurance Company, 399 S.W.2d 245 (Mo. App. 1966); State v. Craig, 364 S.W.2d 343 (Mo. App. 1963); Dominici v. State Farm Mutual Ins.

Co., 143 Mont. 406, 412-413 , 390 P.2d 806 (1964); Heisner v. Jones, 184 Neb. 602 , 169 N.W.2d 606 (1969) ; Allstate Insurance Co. v. Charmeski, 16 Wis.2d 325, 332 , 114 N.W.2d 489 (1962). See also Riley v. State Farm Mutual Automobile Insurance Co., 420 F.2d 1372 (6th Cir.), cert. denied, 399 U.S. 928 , 90 S.Ct. 2245 , 26 L.Ed.2d 795 (1970) ; Kirouac v. Healey, 104 N.H. 157 , 181 A.2d 634 (1962). More specifically, judicial opinions dealing with statutory schemes like Maryland’s have with virtual unanimity invalidated both types of "consent to sue” clauses in ⁷³² uninsured motorist endorsements. They have held that, if the insurer had notice of the tort suit and an opportunity to intervene but failed to seek intervention, then the insurer will be bound by the determination in the tort suit regarding the insured’s entitlement to damages from the uninsured motorist and the amount of those damages.

Furthermore, with regard to those judicial opinions which are not based upon uninsured motorist statutes similar to Maryland’s, the overwhelming majority of cases nevertheless have held that the "consent to sue” clauses are against public policy and that an insurer, with notice and an opportunity to intervene, will be bound by the resolution of the issues in the tort suit. Cases holding that the insurer is bound by the determinations in the tort suit, and that the "consent to sue” clause is unenforceable, include, e.g., Gulf American Fire & Casualty v. McNeal, 115 Ga.App. 286 , 154 S.E.2d 411, 417 (1967); Vernon Fire and Casualty Ins. Co. v. Matney, supra, 351 N.E.2d at 66 ; Indiana Ins. Co. v. Noble, supra, 265 N.E.2d at 432-436 ; Mizer v. State Automobile & Casualty Underwriters, supra; Clayton v. Alliance Mutual Casualty Company, 212 Kan. 640 , 512 P.2d 507 (1973); Winner v. Ratzlaff, 211 Kan. 59, 65 , 505 P.2d 606 (1973); Wells v. Hartford Accident and Indemnity Company, 459 S.W.2d 253, 259-260 (Mo. 1970); Kisling v. MFA Mutual Insurance Company, supra, 399 S.W.2d at 249 ; State v. Craig, supra, 364 S.W.2d at 346-348 ; Dominici v. State Farm Mutual Ins.

Co., supra, 143 Mont. at 411-414 ; Heisner v. Jones, supra, 184 Neb. at 608-612 ; State Farm Mutual Auto. Ins. Co. v. Christensen, 88 Nev. 160 , 494 P.2d 552 (1972); Allstate Ins. Co. v. Pietrosh, 85 Nev. 310 , 454 P.2d 106 (1969); Keel v. MFA Insurance Company, 553 P.2d 153 (Okl. 1976); Boughton v. Farmers Insurance Exchange, 354 P.2d 1085 (Okl. 1960); Childs v. Allstate Ins.

Co., 237 S.C. 455, 463 , 117 S.E.2d 867 (1961); Glover v. Tennessee Farmers Mut. Ins. Co., 225 Tenn. 306 , 468 S.W.2d 727, 730 (1971); Finney v. Farmers Ins. Co., 21 Wash.App. 601 , 586 P.2d 519, 529-531 (1978), aff’d, 92 Wash.2d 748 , 600 P.2d 1272 (1979).

See also Christiansen v. Farmers Ins. Exchange, 540 F.2d 472 , 475-476 (10th Cir. 1976); MFA Mutual Insurance Company ⁷³³ v. Lovins, 248 F.Supp. 108 (E. D. Ark. 1965); Levy v. American Automobile Insurance Co., 31 Ill.App.2d 157 , 175 N.E.2d 607 (1961); Barnhart v. Civil Service Employees Ins. Co., 16 Utah 2d 223 , 398 P.2d 873 (1965). 7 The language of the standard uninsured motorist statute, the purpose underlying required uninsured motorist coverage, and the desirability of avoiding a multiplicity of suits, all support the soundness of the decisions throughout the country holding that "consent to sue” clauses are invalid and that insurers are generally bound by tort judgments against the uninsured motorists. 8 In Reese v. State Farm Mut. Auto.

Ins., supra, 285 Md. at 554 , this Court pointed out that "[t]he provision of the ⁷³⁴ Maryland statute specifying the basic coverage of the uninsured motorist endorsement is standard language, similar to the language in statutes ... that have been considered by courts throughout the country.” This statute, in unambiguous language, provides that "every policy of motor vehicle liability insurance ... shall contain coverage ... for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle. ...” Art. 48A, § 541 (c) (emphasis added). If an insured has obtained a valid judgment in a tort suit against the uninsured motorist, he clearly "is entitled to recover” those damages from the uninsured motorist. To allow an insurer to pay something less than the damages which the insured is entitled to recover against the uninsured motorist because of a policy clause requiring the insurer’s consent to prosecute the tort suit against the uninsured, on its face cannot be squared with the statutorily mandated coverage. As the Indiana Court of Appeals observed with regard to language like that in the Maryland statute: "It is difficult to imagine that a judgment rendered by a court of competent jurisdiction would not legally entitle Matney [the insured] to recover the damages specified by that judgment.” Vernon Fire and Casualty Ins.

Co. v. Matney, supra, 351 N.E.2d at 66 . Or, as the Supreme Court of Oklahoma, after holding void the consent to sue clause, stated (Boughton v. Farmers Insurance Exchange, supra, 354 P.2d at 1090-1091 ): "Exchange [the insurer] agreed to pay all sums plaintiff was legally entitled to recover as damages. The judgment against the uninsured motorist determined that plaintiff was entitled to recover from an uninsured motorist and established the amount she was entitled to recover. Exchange cannot now say ... that it is entitled to relitigate these issues when it agreed to pay that which has already been determined.

We therefore conclude the question of damages and legal liability of the uninsured motorist may not be relitigated in the present action and that the judgment against the uninsured motorist is conclusive of the issues ⁷³⁵ therein determined, subject, however, to any defenses Exchange might have against it.” To the same effect, see, e.g., State Farm Mut. Auto. Ins. Co. v. Girtman, 113 Ga.App. 54 , 147 S.E.2d 364, 366 (1966); Heisner v. Jones, supra, 184 Neb. at 608 ; Glover v. Tennessee Farmers Mut.

Ins. Co., supra, 468 S.W.2d at 729 . Our recent opinion in the Reese case emphasized the nature of an action by an insured against his insurer under the statutorily required uninsured motorist endorsement ( 285 Md. at 552-553 ): "... this is neither a tort action nor an action by an asserted third party beneficiary of an insurance policy. Instead, this is a breach of contract action by the insured against his own insurer.

Under the statutorily required coverage, the defendant has directly promised to pay the insured plaintiff under certain conditions. Because it is a promise by the insurer to pay its own insured, rather than a promise to its insured to pay some third party, the uninsured motorist coverage is in insurance parlance "first party coverage” like collision, comprehensive, medical payments or personal injury protection, and not "third party coverage” such as personal injury or property damage liability insurance. A suit based upon the insured’s allegations that he is entitled to payment under one of the first party coverage clauses in the contract he entered into with his insurance carrier, and that the carrier has refused payment thereby breaching its promise, is clearly a contract action.” The Supreme Court of Montana pointed out in Dominici v. State Farm Mutual Ins. Co., supra, 143 Mont. at 411 , that " 'uninsured motorist insurance more closely resembles accident insurance restricted to a limited class of accident, than it does the type of insurance commonly regarded as indemnity insurance.’ ” Thus, under the statutorily required uninsured motorist coverage, the insured pays a premium in ⁷³⁶ return for the insurer’s promise to pay if certain conditions are met.

The statutory conditions do not require that the insured prove in an action against his insurer that the uninsured motorist was negligent, that the insured was free of negligence, and what the damages were. As pointed out in the Reese case, this is not a tort cause of action based on negligence. Instead, the condition is that the insured prove that he "is entitled to recover” damages in a specified amount from the uninsured motorist. If he already has a valid, final tort judgment against the uninsured motorist, he has met the statutory condition regardless of which party might be deemed to be negligent in a later contract action or what the "proper” damages might be ascertained to be in such contract action.

Like other statutorily required first party coverages, if the premium was paid and the statutory conditions were met, the insurer is liable. We stated in Reese that in light of the statutory language, the insured has different options for establishing that he "is entitled to recover” from the uninsured motorist. "He has the option of bringing a contract action against his insurer or a tort action against the uninsured motorist.” 285 Md. at 554 . Under MAIF’s argument in the instant case, however, the insured would have no real option.

If the "consent to sue” clause is valid, and if the insurer is not bound by the outcome in the tort case, the insurer can always require that the insured bring a contract action against the insurer in order to establish the tort liability of the uninsured motorist and the amount of tort damages. The insured would have no "option” to finally establish these tort issues in a tort suit against the uninsured motorist. The language of the statute mandating coverage for damages which the insured "is entitled to recover” from the uninsured motorist, as well as the language stating that compulsory arbitration clauses to determine such entitlement are "prohibited and shall be of no legal force,” lead to the conclusion that the "consent to sue” clause in the MAIF policy is void, and that MAIF is bound by the determinations in the tort suit regarding the uninsured motorist’s liability and damages. ⁷³⁷ This conclusion is confirmed by the purpose underlying statutorily mandated uninsured motorist coverage. The courts have repeatedly stated that the purpose of uninsured motorist statutes is "that each insured under such coverage have available the full statutory minimum to exactly the same extent as would have been available had the tortfeasor complied with the minimum requirements of the financial responsibility Law.” Webb v. State Farm Mutual Automobile Ins.

Co., 479 S.W.2d 148, 152 (Mo. App. 1972). Or, as stated by an Arizona court, the statutes reflect "a public policy that every insured is entitled to recover the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance in a solvent company.” Dairyland Insurance Company v. Lopez, 22 Ariz.App. 309 , 526 P.2d 1264, 1265 (1974). See, e.g., Simpson v. Farmers Ins.

Co., 225 Kan. 508 , 592 P.2d 445, 447-448 (1979); Burgo v. Illinois Farmers Insurance Company, 8 Ill.App.3d 259 , 290 N.E.2d 371, 373 (1972); Glover v. Tennessee Farmers Mutual Insurance Co., supra, 468 S.W.2d at 729 ; Hawaiian Ins. & Guar. v. Mead, 14 Wash.App. 43, 47 , 538 P.2d 865 (1975) (statute embodies " 'the public policy that a claimant shall have the same rights in an uninsured motorist situation as he would have against a responsible third party.’ ”). Moreover, it is settled that "the remedial nature” of the uninsured motorist statute "dictates a liberal construction in order to effectuate its purpose of assuring recovery for innocent victims of motor vehicle accidents.” State Farm v. Md. Auto. Ins. Fund, supra, 277 Md. at 605 .

Turning to the present case, MAIF’s position is flatly inconsistent with the purpose of placing the insured in the same position as he would have been if the tortfeasor had been insured, and inconsistent with the principle of liberal construction. If the tortfeasor Adams had been insured, the plaintiff Franz would have been able to recover the full tort judgment of $3,182.84 plus court costs. For MAIF to be able to disregard this judgment, even though it had notice of the tort suit and an opportunity to intervene, clearly defeats the ⁷³⁸ statutory purpose of placing Franz in the same posture as if Adams had been insured. Finally, as the courts have generally recognized, considerations of judicial economy and the desirability of reducing litigation expenses militate against MAIF’s position.

Because an insurer "may be bound” by the judgment in the tort case, it has a right to intervene in the tort suit under both Maryland Rule 208 a (applicable to circuit court actions) and Maryland District Rule 208 a (applicable to District Court actions). 9 The right of an insurer to intervene in the tort suit under circumstances like those in the present case, and to defend against the insured’s tort claim (regardless of whether the uninsured motorist is defending or not), is well recognized. See, e.g., State Farm Mutual Automobile Ins. Co. v. Glover, 113 Ga.App. 815 , 149 S.E.2d 852, 856 (1966); Vernon Fire and Casualty Ins. Co. v. Matney, supra, 351 N.E.2d at 64-65 ; Rawlins v. Stanley, 207 Kan. 564 , 486 P.2d 840, 842-844 (1971); Wells v. Hartford Accident and Indemnity Company, supra, 459 S.W.2d at 259-260 ; State v. Craig, supra, 364 S.W.2d at 346-349 ; Dominici v. State Farm Mutual Ins.

Co., supra, 143 Mont. at 411 ; Heisner v. Jones, supra, 184 Neb. at 609 ; Keel v. MFA Insurance Company, supra, 553 P.2d at 157-159 . If an insurer, with notice of the tort suit and an opportunity to intervene, declines to do so, and if the insurer is entitled to re-litigate the issues in a later contract action, there will be ⁷³⁹ two separate court actions devoted to resolving the identical issues of tort liability and damages. A second unnecessary lawsuit represents neither a proper utilization of judicial resources nor a sound use of premium dollars. As was pointed out in Indiana Insurance Company v. Noble, supra, 265 N.E.2d at 434 : "... there is no good reason to put the burden on the insured to relitigate the same issues in a second suit against the insurance company.

It is sound legal policy to avoid multiplicity of suits and resolve disputes in one case where possible.” See also State v. Craig, supra, 364 S.W.2d at 347 ; Heisner v. Jones, supra, 184 Neb. at 608-609 ; Keel v. MFA Insurance Company, supra, 553 P.2d at 158 . In defending the "consent to sue” clause, MAIF makes essentially three arguments: (1) the clause protects the insurance carrier from "collusive judgments” in the tort case; (2) requiring the insurer to intervene in the tort case may result in a conflict of interest; (3) the insurer may have policy defenses unrelated to the issues in the tort case, and these issues will in any event require a second lawsuit. Even if these arguments were highly persuasive, they would not justify our ignoring the plain language of the uninsured motorist statute. Moreover, we agree with the courts in our sister states that these arguments are not very persuasive.

(1) Since, under the uninsured motorist statute and our intervention rules, the insurance carrier has a right to intervene in the tort action and to assert against the plaintiff insured any defenses which it has relating to tort liability or damages, regardless of whether the uninsured motorist raises such defenses or defends at all, the occurrence of "collusive judgments” is unlikely. The insurer, in oral argument before us, pointed to the possibility that the insured and the uninsured motorist would settle the tort suit, thereby depriving the insurance company of the right to assert defenses. However, the insurer can easily protect itself from being bound by such settlement. The standard uninsured motorist endorsement, and the endorsement in ⁷⁴⁰ the instant case, requires the insurer’s consent to any settlement with the uninsured motorist.

Unlike "consent to sue” clauses, "consent to settle” clauses are generally upheld, at least to the extent that settlements, consent judgments, releases, covenants not to sue, etc. between insureds and the uninsured motorists are not binding upon insurers unless the insurers have given their consent. Dancy v. State Farm Mutual Automobile Insurance Co., 324 F.Supp. 964 (S.D. Ala. 1971); State Farm Fire and Casualty Company v. Rossini, 107 Ariz. 561 , 490 P.2d 567 (1971); McInnis v. State Farm Mutual Automobile Ins. Co., 208 So.2d 481 (Fla. App. 1968); Tuthill v. State Farm Insurance Company, 19 Ill.App.3d 491 , 311 N.E.2d 770 (1974); Benson v. Farmers Ins.

Co., Inc., 227 Kan. 833 , 610 P.2d 605 (1980); Gauthreaux v. Travelers Ins. Co., 348 So.2d 737, 739 (La. App. 1977); Aetna Cas. & Sur. Co. v. Poirier, 371 Mass. 257 , 356 N.E.2d 452 (1976); U.S. Fidelity & Guaranty Co. v. Hillman, 367 So.2d 914 (Miss. 1979); Kisling v. MFA Mutual Insurance Company, supra, 399 S.W.2d at 250-251 ; Worobec v. State Farm Mut.

Auto. Ins. Co., 200 Neb. 210 , 263 N.W.2d 95 (1978); Charest v. Union Mutual Ins. Co. of Providence, 113 N.H. 683 , 313 A.2d 407 (1973); Stanko v. Hartford Acc. & Indem.

Co., 397 A.2d 1325 (R.I. 1979); Ford v. State Farm Mut. Auto. Ins. Co., 550 S.W.2d 663 (Tex. 1977). 10 (2) We agree with the insurance company that a conflict of interest may arise because of the uninsured motorist coverage.

Thus, in defending against its insured in the tort action, the insurer might seek to establish that the insured was contributorily negligent and/or that the uninsured ⁷⁴¹ motorist was free of negligence. On the other