Kentucky Tort Report

Can the excess insurer sue the primary insurer for failure to settle within primary liability limits in Ky? 6th Cir. says yes.

An interesting question of possible first imression for Kentucky practioners in the Commonwealth was addressed in 6th Circuit decision applying Kentucky Law as to whether an excess insurer can sue the primary liability insurer who was defending for failure to settle and getting hit for a verdict greater than the primary liability's limits?  The Sixth said "yes" under equitable subrogation. 

We reverse the district court’s order because the Supreme Court of Kentucky would likely recognize a cause of action in this case. Kentucky law already permits an insured to sue a primary insurer for bad faith failure to settle a claim. Kentucky law also recognizes the doctrine of equitable subrogation, which permits an insurance company to “step into the shoes” of the insured and recover what the insured would have been able to recover against a tortfeasor. Combining these two principles to allow an excess insurer to recover from a primary insurer is a logical extension of these principles and furthers Kentucky’s policy goals of encouraging fair and reasonable settlements and preventing third parties from profiting from an insured’s insurance coverage."

And from the opening lines and a link to the full text of the decision:

Natl Sur Corp v. Hartford Cslty Ins
    Western District of Kentucky at Louisville - July 30, 2007
    US 6th Cir. 

ROGERS, Circuit Judge. When a primary insurer against tort liability refuses to settle and then loses at trial for amounts greater than its coverage limits, what recourse does an excess insurer have against the primary insurer? This case involves the issue of whether, under Kentucky law, an excess insurer can recover against a primary insurer pursuant to the doctrine of equitable subrogation, either for the primary insurer’s failure in good faith to settle a claim or for the primary insurer’s failure to investigate whether an insured has other insurance.

The excess insurer in this case, National Surety Corporation, argues that the primary insurer, Hartford Casualty Insurance Company, acted in bad faith by failing to settle a tort claim against their mutual insured, Sufix U.S.A., and thereby exposed Sufix to excess liability.1 National Surety seeks to step into Sufix’s shoes, pursuant to the doctrine of equitable subrogation, to assert this bad-faith claim. National Surety also seeks to assert a claim against Hartford for Hartford’s failure to discover that Sufix was insured by National Surety. The district court held that National Surety did not have a cause of action under Kentucky law, and accordingly granted Hartford’s motion to dismiss.

We reverse the district court’s order because the Supreme Court of Kentucky would likely recognize a cause of action in this case. Kentucky law already permits an insured to sue a primary insurer for bad faith failure to settle a claim. Kentucky law also recognizes the doctrine of equitable subrogation, which permits an insurance company to “step into the shoes” of the insured and recover what the insured would have been able to recover against a tortfeasor. Combining these two principles to allow an excess insurer to recover from a primary insurer is a logical extension of these principles and furthers Kentucky’s policy goals of encouraging fair and reasonable settlements and preventing third parties from profiting from an insured’s insurance coverage. However, the district court’s order properly dismissed National Surety’s failure-to-investigate claim because an insured does not have a cause of action under Kentucky law against its insurer for failing to discover an insured’s other sources of insurance.

Nonpublished Decision enforcing mediation agreement with unilateral mistake holds PIP carrier feet to the fire. Can the underlying prohibition against splitting causes of action be extended to other areas of the law?

I copied my post en toto from the Kentucky Law Blog/Review since it is classic tort and insurance subject - Nonpublished COA Decision Upholds Mediation Agreement Even Though Insurer forgot about the PIP - Epling v. Lib. Mutual Ins. Co..  Although the decision is directly applicable to a settlement agreement, the underlying pricipals involving a single cause of action and its implications on a settlement might/should apply with equal force on first party claims with a bad faith count included.  A single cause of action has come into play in statutes of limitations, property damage vs.personal injury, and now settlement agreements.  Can it have force in UIM advances  and bad faith scenarios?

In Epling, the decedent's estate pursued a claim for the decedent's wrongful death in a car accident asserting claims against the tortfeasor and the decedent's underinsured motorist carrier, Liberty Mutual.  Liberty Mutual had also paid a total of $70,000 in added and basic reparation benefits as a result of the accident.

At the mediation, the parties had settled as follows:

The settlement was allocated with $235,000 for the wrongful death of Hiram McCoy; $10,000 for personal injury to Hiram McCoy; and $10,000 to Barbara McCoy for loss of consortium. Liberty Mutual contributed $5,000 of the total payment of $255,000. After reciting allocation of the settlement amounts and in connection with the total payment to McCoy, the Agreement provides, “settlement proceeds are exclusive of PIP.” This language is commonly used in releases to clarify that no other claims, offsets or subrogation rights will reduce the Plaintiff’s receipt of the total settlement amount.

* * *

However, the Agreement provides that it includes “all parties” and “all claims.” Specifically, the Agreement states:

IT IS HEREBY AGREED by and between the parties hereto
that all claims contained therein between the parties to this
Agreement are fully and finally settled with the Plaintiff
receiving a total settlement of $255,000 from the defendants
in exchange for which the Plaintiff agrees to execute a full
and final Release of all claims including Underinsured
Motorist Claims (UIM) against said Defendants arising out of
this litigation and an entry of dismissal with prejudice, with
each party to this litigation paying the parties respective court
cost and attorneys fees. (Emphasis added).

* * *

Unfortunately, Liberty Mutual’s counsel was unaware of [pip] these payments and did not raise subrogation issues during mediation. Nor had Liberty Mutual’s counsel asserted any subrogation rights after being sued. It is now clear that no cross-claim was made by Liberty Mutual against any party for recovery of basic or added reparation benefits because counsel for Liberty Mutual was simply unaware of these payments.

Liberty Mutual raised the unilateral mistake and the release agreement to effect the mediation settlement agreement hit a snag.

However, the COA held the unilateral mistake was not enough to get around the clear and unambiguous language of the mediation agreement which settled all claims of all parties and required a dismissal with prejudice.

In holding Liberty Mutual's feet to the fire for representations made by it and relied upon other parties, Judge Dixon writing for the panel stated:

The problem of this case arose when Liberty Mutual and its attorney were apparently unaware of the earlier payments. This mistake on Liberty Mutual’s part was a subjective mistake. If Liberty Mutual was allowed to proceed with the subrogation at this time, it would be in derogation of the settlement proceeding that guaranteed the $255,000 payment to McCoy. It would also violate the long established rule against splitting a cause of action. Kirchner v. Riherd, 702 S.W.2d 33 (Ky. 1985); Egbert v. Curtis, 695 S.W.2d 123 (Ky. App. 1985); and Hayes v. Sturgill, 302 Ky. 31, 193 S.W.2d 648 (1946). These cases acknowledge a long, well established history of pleading that requires all claims that arise out of the same facts to be litigated together. To hold otherwise would result in piecemeal litigation. This rule is essential to efficient management litigation (sic).

Now, if the law is a moving stream, then one can only assume, expect and hope that the stream flows smoothly and in the same direction after accounting for the natural eddies and changes in the current.  The courts have applied the rule against splitting a cause of action to statutes of limitation and now settlements, not to mention property damage claims and personal injury claims cannot be split either.

Now will the courts be consistent and that the "well established history of pleading that requires all claims that arise out of the same facts to be litigated together" apply with equal force and effect against the insurance company in a first party claim?  When an insured sues on a contractual uninsured/underinsured motorist claim, he is required by this rule to assert all claims (including statutory and common law bad faith).  If he/she is required to bring those claims, and there is obviously no prejudice to another party or tortfeasor, then there really should be no basis for splitting the trial and join all claims to the jury as an "efficient management litigation (sic)."

The facts are the facts, and each party in a lawsuit must live with those actions and conduct.  The reasons for bifurcating a bad faith claim from a pure contractual first party claim don't hold water when compared to the underlying third party claims and claims against a tortfeasor identified at trial. 

Now this adds another twist of the screw when the "official" reason for "advancing" funds under KRS 304.39-320 and Coots v. Allstate is to preserve subrogation rights.

Would it be legitimate for an undersinsured motorist carrier to advance the liability limits when there are no assets upon which to assert or protect those subrogation rights and the "apparent" reason for advancement would thus be "trial strategy" (eg., identifying a tortfeasor to the jury as the person ultimately bearing financial responsibility for the verdict and to insure bifurcation of any bad faith claims)?

As most may know, this is a lot of speculation and thinking outside the box.  But the questions are nonetheless intriguing.

Failure to bifurcate first party insurance (UIM) claim from staturory bad faith claim is not an automatic error

The Kentucky Court of Appeals ruled recently in a non-published decision that it was NOT palapale error when the trial judge did NOT bifurcate the claim for statutory bad faith (unfair claims settlement practices act) from the underlying UIM/underinsured motorist claim.   

The case was American Commerce Ins. Co. v. Hall, 2005-CA-002183, COA, Apr. 6, 2007.  Senior Judge Buckingham wrote this decision for a unanimous panel of Stumbo and Lambert.

The significance of this decision is that all too often, trial judges have a knee-jerk reaction to an insurance company's bifurcation motion.  Well, bifurcation makes sense when you have a claim against the defendant driver tied in with a bad faith claim against either a third party or first party insurance company.   It sounds fair to the defendant that the liability claim should be held in abeyance and should not unfairly affect the claim of liability and damages against him.  Furthermore, the resolution of the underlying tort claim might even foreclose and preclude the bad faith claim.

However, bifurcation is problably not appropriate when there is no defendant driver in the suit and all the claims are against the insurer!

How and when does this happen.  Well, it happened here.  In the facts of this case,  the plaintiff's settled with the liability carrier (with presumable compliance under the Coots v. Allstate procedure), then sued the underinsured motorist carrier (American Family) for UIM or first party insurance benefits AND for violations of the Unfair Claims Settlement Practices Act.  Oddly enough, American Family did not answer, and liability was entered.  The matter was later tried on damages on both the UIM and the UCSPA claims and American Family still was not in attendance and the verdict exceeded the policy limits. 

Here.  The claims against the defendant resolved, and the only claims left were those for UIM and unfair claims.  When American Family learned of the verdict, it jumped in and tried to set it aside with one of the reasons being it was palpable error not to have bifurcated the contractual UIM claim from the tort of statutory bad faith.

American Family lost, and even though this set of facts is odd, the result is that bifurcating the contractual UIM claim from the UCSPA claim is not automatic and not palpable error to include thus giving judges some leeway in consolidating their dockets and putting pressure on the insurance companies not to deny, delay, and defend and maybe, just maybe, attempt to resolve these claims without the bifurcation card and its cocomitant expense of two, yes two, trials.

"Delay, deny, defend" - Insurance Company Mantra Subject to News Stories

I thought it time to post on some of the news stories and blog posts pertaining to insurance companies fighting to  pay claims under the mantra of "Delay, deny and defend".

Here is the Anderson Cooper story - Insurance companies fight paying billions in claims. And here is a copy of the transcript from that CNN story.

And if you are in a minor impact crash and get hurt, former insurance industry insiders say, insurance companies will most likely try doing the same thing to you: delay handling your claim, deny you were hurt and defend their decision in drawn-out court battles.  It's the three Ds: delay, deny and defend.

That, in a nutshell, is the strategy adopted by several major auto insurance companies over the past ten years, a lot of lawyers, former insurance company insiders and others tell CNN.

With nowhere to go, Allstate and others bet you'll take what they offer and walk away. It's right in the training manuals we obtained from Allstate: force "smaller walk-away settlements."

Shannon Kmatz, a former claims adjuster for Allstate, told us she would offer as little as $50 dollars in some cases. Poor people would take it, she said, fearing that if they didn't, they'd get nothing at all.

Roxanne Martinez didn't take it. She sued and a jury awarded her $167,000 dollars. But that verdict took three years.

Allstate is betting you won't wait, you won't sue and you'll take what you get and walk-away. And that, say our experts, has been a good bet for Allstate and others. Accident victims have been walking away from billions of dollars that insurers now keep for themselves.

Allstate would not grant an interview or answer our questions. Instead, they sent an e-mail saying they didn't think CNN would deliver a fair report. I hope you will watch our report tonight and decide for yourself who is being fair.

And don't forget David Bernadelli's book, From Good Hands to Boxing Gloves, commented upon in a Business Week story entitled In Tough Hands At Allstate . 

And click here for a BlawgSearch for Allstate Insurance Company.

And, Is Allstate Really Allsnake?  from Tort Deform.

And, For Kentucky Insurance Bad Faith Lawyers: Albuquerque Lawyer Awarded $11 million

Bad faith insurance law and the limits of insurance defense counsel's accountability and responsibility to be tested in Cinn. Ins. Co. v. Hofmeister to be argued at COA on Mar. 7, 2007

What's the fallout when an insurance defense lawyer is found to have hidden the amounts of insurance liability coverage?

Then reaches a settlement premised on limits which have been understated? 

What's the fallout when a jury finds the insurance defense lawyer representing an insured and paid by the insurer to have understated the amounts of insurance liability coverage?

Then reaches a settlement premised on limits which have been understated? 

Do the lines of representation between client and insured need to be redrawn within the context of the tripartite relationship and who writes the checks for legal fees?

Well, these issues and more are going to be under scrutiny this week in Frankfort.

This Wednesday, March 7, 2007 at 9:30 a.m. at the Court of Appeals in Frankfort is pending oral argument which could and should have enormous ramifications on the development of statutory bad faith litigation in Kentucky. 

A summary of the trial follows, but some of you may recall this is the case in which it was alleged that the insurance defense lawyer understated to Hofmeister's attorneys that the liability coverage in a motor vehicle accident was $1 million when, in fact, the coverage was $5 million.  The parties settled for the putative policy limits on the morning of trial, and it was later discovered there was more coverage than the insurance lawyer told them.

Thus, issues of unfair claims settlement practices and/or fraud were raised in a subsequent trial in which the jury awarded the plaintiffs $28.4 million in compensatory and punitive damages.

Hidden under the surface of these issues is the ultimate responsibility for writing the check to satisfy this $28.4 million judgment. 

Again, much is at stake.

This is a case in which the arguments should be available on line and web streaming.

The issues are:

• Is Defense Counsel  an agent of Insurer in Unfair Claims Settlement Practices Act Litigation?
• Did the trial court improperly submit fraud allegation to jury and Numerous Other Issues Related to UCSPA Litigation?

The case name:  Cinncinnati Ins. Co. v. Hofmeister, et al.

The appellate panel of judges: Acree, Keller, and Knopf

The lawyers: 

• For Appellant Cinncinnati Ins Co:  John T. Ballantine; Ronald Green; and Michael D. Risley
• For the Appellee Hofmeisters: J. Dale Golden with a surprising Amicus Brief Assist from the Kentucky Defense Counsel (attorneys Gregg Thornton and Luke Wingfield)

The underlying trial and verdict werereported at Morelaw.com as follows:

Date of verdict: 5/28/2004

Trial Court: Circuit Court, Scott County, Kentucky

Plaintiff's Attorney:  J. Dale Golden of Golden & Walters, Lexington, Kentucky

Defendant's Attorney:  Michael D. Risley of Stites & Harbison, PLLC, Lousivlle, Kentucky

George Hofmeister was severely injured when his car was hit headon by a Dasher Express truck driven by Eugene Clark on November 3, 1998. Dasher and Clark were insured by Cincinnati Insurance Company, which was represented by Dan Murner of Landrum & Shouse in Lexington, Kentucky. Murner represented to Hofmeister's attorney that the coverage on the Dasher truck was $1 million when, in fact, the coverage was $5 million. The Hofmeisters accepted $1 million in settlement of thier claims the day the trial of their claims was to begin. The Hofmeisters claimed that Cinncinati acted in bad faith by delaying an insurance payment and then misrepresenting the amount of coverage that was available.

Cincinnati Insurance Company denied wrongdoing.

Outcome: Plaintiffs' verdict for $10 million in compensatory damages and just over $18.4 million in punitive damages.

What's the fallout when a jury finds the insurance defense lawyer representing an insured and paid by the insurer to have understated the amounts of insurance liability coverage?

Then reaches a settlement premised on limits which have been understated? 

Do the lines of representation between client and insured need to be redrawn within the context of the tripartite relationship and who writes the checks for legal fees?

Well, these issues and more are going to be under scrutiny this week in Frankfort.

This Wednesday, March 7, 2007 at 9:30 a.m. at the Court of Appeals in Frankfort is pending oral argument which could and should have enormous ramifications on the development of statutory bad faith litigation in Kentucky. 

A summary of the trial follows, but some of you may recall this is the case in which it was alleged that the insurance defense lawyer understated to Hofmeister's attorneys that the liability coverage in a motor vehicle accident was $1 million when, in fact, the coverage was $5 million.  The parties settled for the putative policy limits on the morning of trial, and it was later discovered there was more coverage than the insurance lawyer told them.

Thus, issues of unfair claims settlement practices and/or fraud were raised in a subsequent trial in which the jury awarded the plaintiffs $28.4 million in compensatory and punitive damages.

Hidden under the surface of these issues is the ultimate responsibility for writing the check to satisfy this $28.4 million judgment. 

Again, much is at stake.

This is a case in which the arguments should be available on line and web streaming.

The issues are:

• Is Defense Counsel  an agent of Insurer in Unfair Claims Settlement Practices Act Litigation?
• Did the trial court improperly submit fraud allegation to jury and Numerous Other Issues Related to UCSPA Litigation?

The case name:  Cinncinnati Ins. Co. v. Hofmeister, et al.

The appellate panel of judges: Acree, Keller, and Knopf

The lawyers: 

• For Appellant Cinncinnati Ins Co:  John T. Ballantine; Ronald Green; and Michael D. Risley
• For the Appellee Hofmeisters: J. Dale Golden with a surprising Amicus Brief Assist from the Kentucky Defense Counsel (attorneys Gregg Thornton and Luke Wingfield)

The underlying trial and verdict werereported at Morelaw.com as follows:

Date of verdict: 5/28/2004

Trial Court: Circuit Court, Scott County, Kentucky

Plaintiff's Attorney:  J. Dale Golden of Golden & Walters, Lexington, Kentucky

Defendant's Attorney:  Michael D. Risley of Stites & Harbison, PLLC, Lousivlle, Kentucky

George Hofmeister was severely injured when his car was hit headon by a Dasher Express truck driven by Eugene Clark on November 3, 1998. Dasher and Clark were insured by Cincinnati Insurance Company, which was represented by Dan Murner of Landrum & Shouse in Lexington, Kentucky. Murner represented to Hofmeister's attorney that the coverage on the Dasher truck was $1 million when, in fact, the coverage was $5 million. The Hofmeisters accepted $1 million in settlement of thier claims the day the trial of their claims was to begin. The Hofmeisters claimed that Cinncinati acted in bad faith by delaying an insurance payment and then misrepresenting the amount of coverage that was available.

Cincinnati Insurance Company denied wrongdoing.

Outcome: Plaintiffs' verdict for $10 million in compensatory damages and just over $18.4 million in punitive damages.

Now, who's insurance card do you have in your wallet? Here's a statutory bad faith claim in which the insurer's investigation and delay went on and on and on.

The duty to investigate a claim does have it's limits in behavior and in time, and in the following case, the insurer was taken to task by its insured and then the courts which finally resulted in appellate resolution of afire loss NINE years later.

An insurance company still is obligated under the Unfair Claims Settlement Practices Act to investigate, negotiate, and attempt to settle the claim in a fair and reasonable manner. Moreover, whether a claim or the amount of a claim is fairly debatable is a question of fact for the jury, and Kntucky courts have never held that advice of counsel provided an absolute defense against allegations of an insurer’s bad faith.  In the 2006 case of Knotts v. Zurich Ins. Co., the Court held that evidence of an insurer’s settlement behavior throughout the litigation may be examined and presented in order to establish an insurer’s bad faith.

This is a claims settlement violation appeal arising from a 1998 fire loss that the Hamilton investigated for over a year without paying, tendered the insured forms for cash value as opposed to replacement value, took four examinations under oath, multiple proofs of loss, etc. and still did not pay after a year forcing the insured to sue for his loss of nearly $58,000.  And still the insurer would not pay after the jury awarded nearly that amount.  The matter went up to the COA which affirmed; and still no payment; then Hamilton sought discretionary review which was denied; and still no payment.  Motion to forfeit supersedeas bond, and still the insurer stood firm, whereupon this claim under the Unfair Claims Settlement Practices Act was filed with a jury awarding nearly $263,000 in damages PLUS over $27k in attorney fees, and still this appeal followed.  Affirmed.

HAMILTON MUT. INS. CO. V. CINCINNATI INS. CO.
INSURANCE:  Unfair Claims Settlement Practices; duty to investigate
2005-CA-000233
PUBLISHED: AFFIRMING; COMBS
DATE RENDERED: 1/26/2007

case digest below the fold.

Ky Bad Faith Decision Digested at Elusive Justice on Non-paying Carrier

Ky Bad Faith Decision Digested at Elusive Justice on Non-paying Carrier

Elusive Justice (and its incognito writer Greg Napier) has posted a digest and commentary on a recent decision published in the Court of Appeals about a slow-playing, no-paying, nay-saying insurane company in a fire loss that occurred in 1997.  Click on heading for ENTIRE post with digest and link to full text of decision.,

ENOUGH ALREADY!
As I read Hamilton Mutual Insurance Co. of Cincinnati v. Buttery, 2005-CA-000233-MR & 000426-MR (January 26, 2007)(To be published) out of the Kentucky Court of Appeals I was dismayed by the horrendous conduct of the insurance company and how long the process dragged on. I’d bet the insurer suffered little actual economic loss because they had time to invest the monies and reap the interest. Plus, they get to deduct these damage awards from their tax liability.

Elusive Justice (and its incognito writer Greg Napier) has posted a digest and commentary on a recent decision published in the Court of Appeals about a slow-playing, no-paying, nay-saying insurane company in a fire loss that occurred in 1997.  Click on heading for ENTIRE post with digest and link to full text of decision.,

ENOUGH ALREADY!
As I read Hamilton Mutual Insurance Co. of Cincinnati v. Buttery, 2005-CA-000233-MR & 000426-MR (January 26, 2007)(To be published) out of the Kentucky Court of Appeals I was dismayed by the horrendous conduct of the insurance company and how long the process dragged on. I’d bet the insurer suffered little actual economic loss because they had time to invest the monies and reap the interest. Plus, they get to deduct these damage awards from their tax liability.

Bad Faith: First-party Bad Faith Decision from Sixth Circuit on Kentucky Case Applies Issue Preclusion

The Sixth Circuit Court of Appeals on Sept. 1, 2006 published a decision out of Kentucky involving bad faith claims against the insurance company which is a very interesting read as it reveals some practical and procedural pitfalls in prosecuting the underling claims, federal removal jurisdiction, and first and third party claims handling (or bad faith) cases against the insurers (liability and underinsured).  The decision also contains a summary of Kentucky law worthy of a one-minute CLE read, too.

The decision was Rawe v. Liberty Mututal Fire and Cas. out of the Eastern District of Kentucky at Covington.  A link to the full text is 06a0337p.06 9/1/2006.

The case arose from a car accident in which Melissa Rawe (minor) was a passenger and sustained significant brain injuries as a result of her driver's negligence.  The driver (Haggard) was insured with Liberty Mutual and after two years, Liberty Mutual settled for its liability limits of $100,000.   Rawe was also insured with Liberty Mutual for $50,000 in underinsured motorist benefits (UIM) and filed suit in state court after she was unable to obtain a settlement of the UIM claim.  Liberty removed the case to federal court based on diversity of the parties.  Eventually, a settlement was reached for $45,000 and judgment was entered.  "After this judgment was entered, defendant Liberty Mutual demanded that Rawe execute a Release and Settlement Agreement releasing any and all future claims, including claims that were not part of that action, before Liberty Mutual would comply with the judgment and render payment of the $45,000. . . . Rawe refused to sign the release" and eventually obtained a writ of execution.  Liberty paid and judgment satisfied.

Rawe filed a second lawsuit in Kentucky state court alleging that Liberty Mutual’s actions during the attempted settlement of both the bodily injury and UIM claims violated the Kentucky Unfair Claims Settlement Practices Act ("KUCSPA") (Count I), constituted a breach of contract and the tort of first- and third-party common-law bad faith (Count II), violated the Kentucky Consumer Protection Act ("KCPA") (Count III), and constituted fraud (Count IV).  Liberty Mutual again removed it to federal court on diversity grounds.

In sustaining dismissal of some of the claims, the 6th Cir. reasoned as follows:

Any claims based upon defendant’s conduct in handling plaintiff’s claim for UIM benefits based upon common law bad faith and Consumer Practice Act are barred under the doctrine of res judicata.  [All such claims should have been included in the complaint filed against Liberty Mutual, and settlement of that lawsuit arising from that incident are now barred.  Note that this was a FIRST party claim and Liberty Mutual was a party to the UIM claim.]

Rawe’s first-party bad-faith claims that are based upon Liberty Mutual’s actions AFTER she filed the first lawsuit to enforce the UIM contract cannot be barred by res judicata, because those alleged actions had not yet occurred at the time she filed the first UIM suit.  Rawe could not have asserted a claim that she did not have at the time.  Furthermore, res judicata does not bar new action based on alleged acts occurring after the filing of the first law suit (eg., not required to amend your complaint as these claims were not yet ripe when she filed suit to enforce her rights).