Progressive Direct Insurance v. Jungkans

Plaintiff insurer denied UIM coverage to its insured, claiming that insured's failure to notify it in advance of settlement with adverse driver's insurer violated policy's cooperation clause. Court erred in granting summary judgment for UIM insurer. As insurer did not deny that UIM claim was within scope of policy, insured was not required to raise knowledge issue as affirmative defense. Insurer failed to prove that it suffered prejudice by settlement; evidence showed that adverse driver was judgment-proof, and a judgment-proof tortfeasor defeats claim of prejudice from insured's violation of cooperation clause. (ZENOFF and BIRKETT, concurring.)