Filing against my underinsured motorist insurance

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PostPosted: Wed Aug 29, 2012 12:43 am   Post subject: Filing against my underinsured motorist insurance  

My family was in a car accident a year ago and have been working with the at fault party's insurance company to settle only to find out that the claim amounts will probably exceed their coverage.

1. Would it be advisable to file under our auto policy's underinsured policy (which exceeds their coverage) or get a lawyer and let him handle it?



2. Also, his insurance company has retained a lawyer under the premise of having the lawyer divide up the at fault drivers coverage amount of 50K equitably (there are multiple parties involved). Is that normal for them to get a lawyer?



3. Also, his insurance company claims they will not offer us a settlement until all parties in the case have determined that they are finished with treatment. Is that legal?


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PostPosted: Wed Aug 29, 2012 1:17 am   Post subject:   

Only you can determine if you need an attorney. a UIM claim can be a little tricky. You need to put your carrier on notice of your UIM claim. You then need their permission to settle the claim accepting the other person's policy limits (really the other person's carrier needs to obtain a letter from your carrier stating that they won't pursue their insured if they pay out their policy limits). Usually your carrier has two choices... pay the other person's policy limits to you instead of you accepting them from the other carrier in order to preserve their right of recovery against the at fault party or allow you to accept the other person's limits.



The other insurance company does not need an attorney to divide up the limits... anyone can take the number of people affected and offer up their policy limits however it will get the job done. Perhaps one of the parties did not like this, hire an attorney and that attorney filed suit. In that case the insurance company would provide their insured a defense by hiring an attorney for their insured.



#3... 100% correct. The other insurance company still has a duty to protect their insured even with the low limits. If all the parties will no sign a release then they cannot diminish the money they have available by settling with only some of the parties. That would be Bad Faith on their part. Then if one of the parties left sued their insured, their insured would file a Bad Faith claim against his/her own carrier alleging that they did not make every attempt to settle all claims for the policy limits. The carrier is then on the hook for more then the limits.



At the end of the day you should know it was a good idea to obtain UM coverage. You did the right thing.

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PostPosted: Wed Aug 29, 2012 1:52 am   Post subject:   

In a pro-rata situation (i.e. multiple people asserting claims against a single policy limit) it would definitely be advisable to consult with an attorney. For starters, an attorney can help test the legal sufficiency of those claims competing against yours for the at fault party’s policy limits. Additionally, an attorney can help identify other sources of recovery or additional at fault parties. For example, sometimes third persons can be deemed liable for the actions of the at fault driver (e.g. employers, parents, owners of vehicles, etc.). Finally, an attorney can help keep your own insurance carrier honest when negotiating a claim for uninsured or underinsured benefits. Many attorneys will provide free initial consultations.



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PostPosted: Fri Aug 31, 2012 1:55 am   Post subject: Filing against my underinsured motorist insurance  

If I wait and see what my insurance company will offer me, does it hurt my case if they do not offer me what my claim is worth and I decide to sue at that point?


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PostPosted: Fri Aug 31, 2012 3:24 am   Post subject:   

Be aware that almost every state has established a maximum time limit, after which time you are prevented from filing a lawsuit. Its called a statute of limitations and in most states its two years from the date of the injury (or the discovery of the injury). If your accident involved a government agency, you might have as little as 6 months to place the government on notice. One of the reasons that a statute of limitations exists is to force any lawsuits to occur sooner rather than later. Over time, evidence can be corrupted or disappear, memories fade, crime scenes are changed, and companies dispose of records. The best time to bring a lawsuit is while the evidence is not lost and as close as possible to the alleged illegal behavior. Another reason is that people want to get on with their lives and not have legal battles from their past come up unexpectedly. The injured party has a responsibility to quickly bring about charges so that the process can begin. You do indeed have an option of refraining from filing a lawsuit in order to see what your insurance carrier may offer you; but be aware of the limitations periods in your state. Also understand the delaying a lawsuit can lead to evidence spoliation and other mentioned above that a sttaute of limitations was designed to prevent.



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PostPosted: Fri Aug 31, 2012 3:59 am   Post subject:   

Counselor Crawford is correct about the statute of limitations -- although it does vary widely from state to state. You don't need to sue or even involve an attorney right away in most cases, but you do need to be aware of the statute of limitations, because missing by just one day is one day too many.



The time to involve an attorney is when you and the insurance company come to an impasse -- you believe your loss is worth a certain amount and the insurance company's offer falls well short of that, as an example.



In the case of a collision involving unrelated parties as victims, however, you may have no choice but to seek the assistance of legal counsel when the policy limits are obviously going to be exhausted. As Counselor Crawford points out, there may be additional parties (especially when they have deeper pockets) who can be named as co-defendants and additional recovery may be obtained from those persons.



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