like Binker, interprets the clause in such a way that Binker receives the maximum recovery possible on the judgment.
"The limit of the recovery of the plaintiff under any or all insurance policies carrying the uninsured motorist provision required by § 38.1-381(b) would be the amount of the insured's judgment against the uninsured motorist." Bryant, 140 S.E.2d at 820. The amount due on the judgment is $ 724,586.59. However, to determine the amount of insurance coverage ultimately available under plaintiff's policy, it is necessary to subtract from the judgment amount the $ 204,426.00 in workmen's compensation payments made by plaintiff to Binker and her children. Thus, the total amount available from plaintiff is $ 520,160.59, considerably less than the judgment amount, and the excess coverage under the Travelers policy is triggered. Consistent with Virginia law, this interpretation does not limit or reduce Binker's recovery on the judgment to below what she is legally entitled to within the limits of the two policies. See Va. Code Ann. § 38.2-2206 A (1950) (formerly § 38.1-381(b)).
The fact that Binker settled with plaintiff without Travelers' consent does not affect the Court's decision. It is true that the settlement provision upon which Travelers relies has been upheld by the Supreme Court of Virginia. See Virginia Farm Bureau Mut. Ins. Co. v. Gibson, 236 Va. 433, 374 S.E.2d 58 (1988); see also Allstate Ins. Co. v. Brown, 736 F. Supp. 705, 710 (W.D. Va. 1990) (upholding consent-to-settlement clause in excess insurer's policy). However, even if Binker had not settled and had recovered the entire $ 520,160.59, Travelers would still be liable for the excess coverage, as the amount due on the judgment is $ 724,586.59.
Having concluded that Binker is entitled to judgment against Travelers in the amount of $ 25,000, the Court addresses the issue of interest. Travelers argues that Binker's failure to raise the interest issue prior to trial estops her from raising it now. In addition, Travelers argues that the Court's February 15, 1991, Order precludes an award of interest. However, the Virginia Supreme Court has held that "the interest the law allows on judgments is not an element of 'damages' but a statutory award for delay in the payment of money due." Nationwide Mut. Ins. Co. v. Finley, 215 Va. 700, 214 S.E.2d 129, 131 (1975) (citing American Auto Ins. Co. v. Fulcher, 201 F.2d 751 (4th Cir. 1953)). In addition, "it is irrelevant that the accumulated interest may increase the total obligation to a sum greater than the limit of coverage fixed in the insurance contract." Finley, 214 S.E.2d at 131. Travelers is obligated to pay interest on the $ 25,000 from April 9, 1982, the date of the Superior Court judgment, and nothing in the Court's February 15, 1991, Order should be interpreted to the contrary.
An appropriate Order accompanies this Opinion.
ORDER - August 12, 1991, Filed
Upon consideration of the stipulations of the parties, the arguments presented to the Court on July 23, 1991, the parties' proposed findings of fact and conclusions of law, and the entire record, for the reasons set forth in the accompanying Opinion, it hereby is
ORDERED, that judgment is entered in favor of third-party plaintiff and against third-party defendant in the amount of $ 25,000, plus interest from April 9, 1982.