May 14, 2012
You've Got To Pay The Gekko
An Illinois Hearing Board has recommended a three-month suspension of an attorrney who receive a payment from GEICO for the destruction of his Toyota and thereafter failed to advise the insurer of a settlement that they were entitled to under a subrogation agreement.
The hearing board rejected a variety of claims asserted by the attorney:
We do not accept Respondent's position that Geico waived or abandoned its subrogation rights. While it is true that a waiver does not have to be expressly stated and can be implied from acts or words that are consistent with an intent to waive, Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 821 N.E.2d 269 (2004), we do not believe any refusal on Geico's part to be a party to Respondent's suit equates to an implied waiver of its subrogation rights. Even if Respondent's report of a conversation with an in-house attorney is accurate, that conversation tells us only that Geico did not want to be involved in Respondent's suit. We do not interpret the statement to mean the insurer was giving up its right to pursue its own action if it paid out on Respondent's claim, nor do we believe Respondent could have inferred such a meaning from the statement, especially given his background of working with insurance companies and subrogation issues. Moreover, even if Respondent did believe Geico had given up its subrogation rights, his conversations with Geico representatives confirm that he was aware that Geico had those rights at one time and thus his representation that no entity has or "has had" an interest in his claims was clearly inaccurate.
With respect to Respondent's testimony that he was not certain Geico actually made a payment to Bank of America, we find that position to be implausible, as well as contrary to his answer to the Administrator's Complaint. Whether or not he saw physical proof of the payment, he admitted to being verbally informed of the payment and even discussed the details with a Geico representative. The fact Respondent's communications with Geico ceased after April 2001, as evidenced by the log notes, also indicates he knew that Geico had resolved the matter.
Respondent's argument that Geico did not have a subrogation interest in the proceeds of his settlement was also unpersuasive. Respondent testified he was seeking to recover for personal property left in his vehicle, yet that loss was not mentioned in his lawsuit against the City, nor was it noted in the activity log as part of his initial report to Geico. As to Respondent's claim that he sued the City because he remained liable for the value of his vehicle or for the deficiency left after Geico's payment, he did not present any evidence of his liability other than his own vague recollection that Bank of America had indicated it would hold him responsible. The fact an action was brought against him several years later for an alleged debt owed on a credit card issued by Bank of America, which Respondent believed had been mistaken for his debt on his leased vehicle, does not prove Bank of America made any demands on him in 2001.
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