# Schmidt v. Clothier > Supreme Court of Minnesota · September 23, 1983 · 338 N.W.2d 256 URL: https://www.frixlaw.com/law-library/cases/9740515 ## Case - **Full name:** H. Rosemarie SCHMIDT, Etc., Respondent, v. Kevin J. CLOTHIER, Et Al., Defendants, Safeco Insurance Co., Intervenor, Appellant, Edward Paskoff, Et Al., Respondents; H. Rosemarie SCHMIDT, Etc., Respondent, v. Gerald Frank HOAG, Respondent, Linda Elizabeth Epperly, Respondent, and Minneapolis Special School District # 1, Intervenor, Respondent, Safeco Insurance Co., Intervenor, Appellant - **Court:** Supreme Court of Minnesota - **Decided:** September 23, 1983 - **Citations:** 338 N.W.2d 256; 1983 Minn. LEXIS 1305 - **Precedential status:** Published - **Opinion:** Concurring in part by Todd - **Judges:** Scott, Wahl, Todd, Amdahl, Coyne - **Cited by:** 172 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Superseded by statute, as recognized in Onasch v. Auto-Owners Insurance Co.. - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9740515 ## How later opinions describe it (automated extraction) - stating that a UIM claimant may either pursue a tort claim to conclusion in district court, and then, if the judgment exceeds the liability limits of the tortfeasor’s policy, pursue UIM benefits; or settle the tort action for “the best settlement,” give notice to the underinsu… - explaining that UIM insurance exists for situations when the limits of the tortfeasor’s liability insurance is inadequate and not for situations when “damages are uncompensated because the insured has chosen to settle with the tortfeasor for less than the liability limits” - concluding that "[t]he insured has the right to accept what he or she considers the best settlement available and to proceed to arbitrate the underinsurance claim for a determination of whether the damages do indeed exceed the tort-feasor’s liability limits” - concluding that “the insured cannot obtain a below-limit settlement from the tort-feasor and then recoup the ‘gap’ from the underinsurance carrier” ## Opinion text TODD, Justice (concurring and dissenting). I concur in the majority opinion except that portion which requires the injured party to obtain less than full compensation in order to expedite the total claim. That portion of the opinion is inconsistent with the rest of the opinion. The so-called “gap” arises when the liability carrier tenders less than the full amount of its coverage. The majority concludes that the injured party would have no incentive to seek maximum recovery if the underinsured carrier is responsible for all amounts due over and above the proposed settlement amount. This approach ignores the solution provided in the opinion itself and .has a very bad practical effect. If allowed to stand the injured party will not be able to negotiate any reasonable settlement with the liability carrier unless willing to bear a financial loss. This is not necessary. The majority opinion provides the solution. The injured party should negotiate the best possible settlement. The offer is communicated to the underinsured carrier. If it is not satisfied, the offer should be rejected, the underin-sured carrier should immediately pay the amount of the offer to the injured party, and they should immediately proceed to arbitration. This method places in the under-insured carrier the ability to manage its role in the pending claim to its best advantage without imposing any financial burden on the injured party. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9740515. Public record. Not legal advice.