ARE you involved in a vehicular accident in which the “at fault” other driver is uninsured, or is unidentified as in a hit-and-run collision, or does not have enough insurance coverage?
If so, you have an uninsured or underinsured motorist claim under California tort law based on fault, if you have uninsured motorist (U.M.) coverage which is optional, not mandated by the Insurance Code. The driver and the owner of the vehicle “at fault” are required to pay the damages sustained by the other driver and the owner of the other vehicle not “at fault.”
Uninsured or underinsured motorist claims may include property damage and bodily injury damage consisting of lost wages or income, medical expenses, and pain and suffering, or wrongful death from injuries sustained in the accident.
Limitations to Uninsured Motorist Claims
Section 11580.2(a) of the California Insurance Code requires motor vehicle insurance companies to offer uninsured motorist coverage, with coverage limits equal to the limits of liability for bodily injury in the underlying policy of insurance: minimum of $15,000/$30,000, under Section 11580.2(m).
Uninsured motorist policies may provide higher bodily injury limits purchased by the policyholders.
Uninsured motorist property damage claim is subject to a limitation for repairs or replacement of $3,500, with $0 deductible, but may be covered for the full amount by the first-party collision coverage on the vehicle whose driver is not at fault.
But to qualify for uninsured motorist claim, there must be an actual physical impact with the insured motor vehicle. Moreover, the vehicular collision must be reported to a police agency, although a police report is not needed to qualify, but is advisable to have.
Uninsured motorist bodily injury claims are subject to a two-year statute of limitations, that is, the claims must be settled or a formal demand for uninsured motorist arbitration must be made on the insurance carrier within two years of the date of the vehicular collision.
Uninsured motorist claims are not filed in court, but resolved by out-ot-court settlement or through decision by one or more private arbitrators after arbitration hearing, as delineated in the insurance policy with uninsured motorist coverage.
Offer of Underinsured Motorist Coverage by Insurance Carriers
Section 11580.2(n) of the California Insurance Code provides that “(u)nderinsurance motorist coverage shall be offered with limits equal to the limits of liability for the insured’s uninsured motorist limits in the underlying policy, and may be offered with limits in excess of the uninsured motorist coverage.”
Under aforesaid section (n), “uninsured and underinsured motorist coverage shall be offered as a single coverage,” but the “insurer may offer coverage for bodily injury or wrongful death damages from the owner or operator of an underinsured motor vehicle at greater limit than an uninsured motor vehicle.”
Thus, if the party “at fault” is underinsured for the total amount of bodily injury damages, the other party not “at fault” may recover the balance of the damages from the latter’s insurance policy as limited by the policy limit. But if the party at fault has limits equal to the policy of the other party not at fault, the vehicle of the party at fault is not considered “underinsured”.
Indeed, if the party “at fault” has liability insurance of $15,000.00 for bodily injury; and the total bodily injury damage to the other party not at fault is over $15,000.00 or $20,000.00; and the latter has underinsurance coverage of $30,000.00 with his vehicle, the party not at fault may recover only the balance of $5,000.00 from his own insurance carrier. This prevents double recovery.
The claim adjuster handling the underinsurance claim of $5,000.00 of the driver not at fault requires a statement from the claim adjuster of the insurance carrier of the other party that the $15,000.00 policy limit has been paid in full, because Section 11580.2 of the Insurance Code requires such exhaustion of the limit of bodily injury liability policy by payment of judgment or settlement.
An underinsurance bodily injury claim, just like an uninsured claim, is a first party claim against the insurance carrier of the party not at fault. Thus, it is also subject to the same statute of limitations of two years.
Moreover, there are two situations when underinsurance motorist coverage would not be triggered:
when there are multiple claimants with total claims exceeding the available coverage: for example, the party at fault has policy limit of $30,000 per accident, and there are three claimants with injury damages of $15,000 each; so the $30,000 may be divided equally and each would receive $10,000, even though one claimant’s underinsurance policy has a $15,000 benefit; and
when the insured driver is the only person at fault; so that an injured passenger cannot recover underinsured motorist benefit, because the insured vehicle is not underinsured under section 11580.2(p)(2) of the Insurance Code.
Uninsured and underinsured motorist claims are complex and require the aggressive assistance of a competent personal injury attorney.
* * *
The Author, Roman P. Mosqueda, has practiced immigration law for more than 20 years, and is a long-standing member of AILA. Send e-mail to [email protected] or call (213) 252-9481 for a free initial and confidential consultation, or visit his website at www.mosquedalaw.com or www.EzineArticles.com to read his other articles.
