Small Widget Spot

December 3, 2016

Pursuing Arbitration in UM/UIM Claims

Pursuing Arbitration in UM/UIM Claims

How Much Auto Insurance Coverage Should I Have?

I often state that it is our recommendation that anyone owning an auto have primary liability (protection if you negligently hurt others) policy limits of $300,000 per person and $500,000 per accident. In addition, and an excess policy above that which provides at least $1 million in additional liability coverage and also if you are injured by an uninsured or underinsured motorist protection.

As to the latter, if you are injured by the negligence of a third person with no insurance or insufficient coverage to compensate you or others in the car, then your policy kicks in and provides additional coverage. For example, if you have the total of $1.5 million I have recommended, and you are injured by a negligent driver, you have that additional sum which is available to pay for your injuries. If the negligent driver has $100,000 in coverage you have $1.4 million. Your UM/UIM protection pays if a) the other driver is negligent (i.e. you have added to his or her liability protection on your policy), and b) causes injury, (i.e. medical expenses, pain and suffering).

I also stress that in order to qualify for this coverage you must purchase liability insurance in the same amounts as the UM/UIM insurance that you want. Make sure you cover this with your agent when discussing your auto policy.

Pursuing Arbitration

Let’s discuss how the matter proceeds if the UM/UIM claim is denied or challenged. In the case of UM/UIM claims, California law mandates that these claims be arbitrated, and that the decision of the arbitrator is final and cannot be appealed except in rare cases. See Insurance Code section 11580.02.

If you have gotten this far without a lawyer, I highly recommend your engage one to represent you. What will take place now needs an experienced lawyer to guide you through the process.

Arbitration is a formal proceeding in which the parties submit their dispute to a neutral (lawyer or retired judge usually), who has authority to make a decision, based on the evidence presented. The decision of the arbitrator is binding on the parties.

What is a Mediation?

One thing that might happen before an arbitration is that the parties agree to mediate the UM/UIM claim. A mediation is a meeting of the parties supervised by a “neutral”, usually a retired judge or experienced lawyer, who oversees the negotiation of the claim. By law, what takes place in preparation for, during and after a mediation is confidential. Nothing that takes place during this process can be used by any party against the other, so the parties can candidly discuss their views of the case and settlement. It is a far less expensive and risky way of resolving any dispute, including UM/UIM claims.

Arbitration involves the presentation of the case to an arbitrator much like a trial. There is no jury and the arbitrator performs the same function as a judge, and also the jury as a finder of fact. An arbitration is conducted in a private office, not in a courthouse. While it is informal in the sense that all the formalities of a court trial are not followed, it is a formal proceeding in that it follows the usually format of a trial. The presentation by both sides follows the normal court trial process: briefs are filed, exhibits presented, opening statements are made, witnesses are called (lay and experts such as medical witnesses), and when all parties have rested (i.e. finished their evidentiary presentation), the lawyers argue the case and possibly file post trial briefs.

The arbitrator then decides the case usually taking some time to review the evidence and the briefs. The decision of the arbitrator is usually written and is called an “award.” Once it is served on the parties, it can be converted to a court judgment, which then is enforceable against the defendant insurance company if the award is not promptly paid. If the award is for money in favor if the insured (it can be a zero which means the insurance company owes nothing), it should be paid promptly. Since tje arbitrator’s decision is final, there is no appeal, so to this extent it is an expedited process. If the insurance company does not promptly pay the award, it may be in “bad faith” which means the insured has a second suit for this delay or failure to pay as a separate claim.

In addition to representing our clients, Mr. Kornblum also serves as an expert witness in insurance claims and legal malpractice claims, and as a mediator. For more information contact our San Francisco office at 415-440-7800.

November 15, 2016

Insurance Company Responsibilities in Uninsured/Underinsured Motorist Claims

Insurance Company Responsibilities in Uninsured/Underinsured Motorist Claims

Insurance Company Responsibilities in Uninsured/Underinsured Motorist ClaimsThis is the third article from Guy O. Kornblum on Uninsured/Underinsured Motorist Coverage (UM/UIM). He has discussed what it is, how it works and why you should have as much coverage as you can. As a reminder, it is our recommendation for primary policy limits of $300,000 per person and $500,000 per accident, and an excess policy above that which provides at least $1 million in additional coverage for UM/UIM. I also stressed that in order to qualify for this coverage you must purchase liability insurance (i.e. which protects you from suits by others resulting from your negligence) in the same amounts as the UM/UIM insurance that you want. Make sure you cover this with your agent when discussing your auto policy.

Insurance Company Responsibilities

Now let’s discuss how the insurance company must handle a UM/UIM claim once it is presented. First of all, there is an important point to recognize: UM/UIM coverage involves a claim made by an insured to its own insurance company. Thus it is that relationship, based on the insurance policy – a contract – that is at the heart of the claim. This results in a conflict between the insurer and the insured, as the insurer “steps into the shoes” of the negligent driver. If the insurer is contesting a claim it is going to argue a) that its own insured was totally or partially at fault for that insured’s injuries.

Nonetheless, the insurer must still handle the claim in “good faith” and not act unreasonably and arbitrarily. That is, as a first party claim (i.e. the insured is making a claim to its own insurance company), the insurance company has a legal obligation (i.e. duty) to comply with the covenant of good faith and fair dealing, which is implied (even though not expressly stated) in every insurance policy in California. This means that the insurer must comply with certain obligations, including not acting unreasonably in handling, evaluating the making a decision about the claim – i.e. whether to pay or not.

The Good Faith Obligation

As part of this “good faith” obligation, the insurance company must also comply with California’s Unfair Claims Practices Statute (Insurance Code §790.03(h)) and the accompanying regulations (10 California Code of Regulations 2695.1 et seq.) which regulate the conduct of insurers with respect to claims handling . For example, the insurer must “attempt to effectuate a prompt fair and equitable settlement after liability becomes reasonably clear.” (Cal. Ins. Code §790.03(h)(5).) It also must “diligently pursue a thorough, fair and objective investigation and shall not persist in seeking information not reasonably required for or material to the resolution of a claim dispute.” (10 Cal. Code Reg. 2695.7(d); emphasis added.). The insurance company has no choice. It is required to follow the “good faith” claims handling rules regarding their investigation, administration, and decisions regarding your claim.

When to Fight Back

If your insurance company violates these duties to you, you can sue and obtain money damages for what is owed you under your policy plus damages for your worry and anxiety and in some instances attorney fees. And, in the cases of malicious and fraudulent claims handling, your insurance company may be liable to you for punitive damages based on a civil fine which you receive to punish the company for its wrongful conduct. This “good faith” claims structure applies in cases of UM/UIM claims even though the insurance company’s responsibility is based on the question of the negligence of the third party driver who was not its insured – you are!

These “good faith” rules prohibit “low balling” (offering below value numbers in an effort to force you to accept this offer because you need the money), or unfair and unreasonable denials. When the insurance company does not live up to these rules, you have the right to seek a recovery against your insurer for failure to provide you – as the insured and purchaser of UM/UIM coverage – what the insurance company promised to pay you for the protection that you purchased?

Next: What Happens if the Insurance Company Denies Your Uninsured and Underinsured Motorist Claim? Pursuing Arbitration.

In addition to representing our clients, Mr. Kornblum also serves as an expert witness in insurance claims and legal malpractice claims, and as a mediator. For more information contact our San Francisco office at 415-440-7800.

October 17, 2016

What Happens When Motorists Don’t Have Insurance?

What Happens When Motorists Don't Have Insurance?

In our last post, we shared an an overview of what Uninsured/Underinsured Motorist Coverage (UM/UIM) is and why you should have it in your auto policy. Another staggering fact is that despite efforts by states to curb the number of uninsured motorists on the roads, the Insurance Research Council found 12.6 percent of drivers nationwide were driving without coverage in 2012, the last year for which data is available. All told, 29.7 million people were driving uninsured during that year nationwide.
How Much Coverage do you Need?
As a result, we recommend primary policy limits of at least $300,000 per person and $500,000 per accident, and an excess policy above that which provides at least $1 Million in additional coverage for UM/UIM. To obtain such, the insurer must offer this level of coverage and you must purchase the same amount of liability insurance coverage as you purchase for this UM/UIM insurance.
Making a Claim
There are certain requirements in making a UM/UIM claim under the governing statute, California Insurance Code §11580.2.
There are three classes of people who are covered by a vehicle policy with UM/UIM coverage. These include:
  1. The person named as the insured, his or her spouse, and his or her relatives while residents of the same household. Persons in this category are given the widest coverage. For example, they do not have to be riding in the insured vehicle at the time of the injury. If they are in a vehicle which is uninsured or underinsured that can qualify for coverage. They can even be injured as pedestrians and qualify for coverage.
  2. The second group includes any person in or upon or entering into or alighting from an insured motor vehicle. So the only question is if the vehicle is insured.
  3. The third group is more limited – any person who is entitled to recovery for care or loss of services because of bodily injury to which the policy provisions apply. This applies primarily to “loss of consortium” (damage to the relationship and loss of services) claimed by one spouses for injury to another.
There are three alternative means by which a claimant can preserve a UM/UIM claim (and thus not have it barred):
  1. File a complaint against the negligent driver (and owner of the vehicle if the driver is not the owner) within two years of the accident (this is the limitation period for filing in California).
  2. Conclude an agreement as to the amount to be paid for the UM/UIM claim with your insurance company.
  3. Submit a demand for arbitration to the insurance company by certified mail, return receipt requested within the two year period.
Hit and Run Coverage
There is also UM coverage for an accident resulting from a “hit and run” driver. Here there is only UM coverage because the offending vehicle has disappeared and there is no insurance available for that vehicle.
In order to qualify for this coverage there are three requirements:
  1. There must be “physical contact” between the “hit and run” vehicle and the insured vehicle (to avoid fraudulent claims).
  2. Within 24 hours of the accident, it must be reported to the police or sheriff.
  3. Within 30 days of the accident, a statement under oath must be provided to the insurance company setting forth the facts and circumstances of the claim.
Who is Protected?
Remember, UM/UIM coverage protects you, the occupants of your car, and insured family members who are residing with you if any of them is a victim of an accident by a motorist who carries no liability insurance (i.e. insurance who provides coverage for claims by third parties) or the amount of liability insurance coverage is less than the amount of UM/UIM coverage you have.
How it Works
So, again (I gave a different example last issue) here is how this coverage might work as underinsured motorist coverage.
You and two family members are hit by a vehicle being driven negligently and suffer injuries. The negligent driver has liability coverage of $100,000/$300,000. There is no additional insurance – i.e. excess or umbrella coverage for that driver. You have primary coverage of $300,000/$500,000. Thus the amount of liability insurance protection for the negligent driver is less than the UM/UIM coverage you have.
There are three claims against the negligent driver. The most his insurance company will pay is $100,000 per claim, and $300,000 total for all claims. You have more protection under your UM/UIM coverage: There is an additional $200,000 per person under your primary policy UM/UIM coverage ($300,000 limits minus the $100,000 liability limits of the negligent driver’s policy), subject to the $500,000 per occurrence (i.e. accident) limits as reduced by the total of payments made under the driver’s policy (if $300,000 is paid out, there would be only $200,000 left in the aggregate of your primary policy) plus the $1 Million additional coverage applied to all claims under your UM/UIM excess coverage. So there is more insurance money available for these claims.
As noted, if the negligent driver is not insured (or it is a “hit and run” accident that qualifies as noted above), then the entire amount of your UM/UIM coverage is available to pay for the claims arising out of the accident.
Which Coverage to Buy
As a general rule the cost of this additional insurance protection for you and your car’s occupants, those family members who are residing with you is normally not that great. But in order to qualify for this coverage you must purchase liability insurance (i.e. which protects you from suits by others resulting from your negligence) in the same amounts as the UM/UIM insurance that you want.
Make sure you cover this with your agent or broker when discussing your auto insurance.
Next: The Uninsured/Underinsured Motorist Claim: What are the Insurance Company’s Responsibilities in Handling the Claim? 
 
In addition to representing our clients, Mr. Kornblum also serves as an expert witness in insurance claims and legal malpractice claims (www.jurispro.com), and as a mediator (www.kornblummediations.com). For more information, please  contact our San Francisco office at 415-440-7800.
October 17, 2016

The Importance of Having Uninsured and Underinsured Motorist Coverage

The Importance of Having Uninsured and Underinsured Motorist CoverageUninsured Motorist and Underinsured Motorist Coverage (UM/UIM) is available as additional insurance coverage in your auto policy. Many overlook or don’t understand the importance of this coverage.

What is this coverage? It is purchased as part of your vehicle coverage. It is a separate type of insurance that protects you, the occupants of your vehicle, and others who are family members living with you, from being injured by a negligent motorist who is driving without or with insufficient insurance coverage on that vehicle to pay for the injuries caused.
Why is it valuable? If the negligent driver injures you or someone in your car, and has no insurance, then your insurance company steps in as if it was the insurer of that negligent driver and your policy then provides funds to pay for that wrongdoing. This is uninsured motorist protection.
Underinsured protection is different. It protects you and your passengers from the negligent driver who does not have sufficient insurance to pay for your claims. California is a “set off” state. That is, what you collect from the negligent driver is subtracted from the limits of the underinsured motorist coverage you have. (See the example below.)

Frankly, in California in the underinsured coverage situation, you can never collect your full limits because of this reduction; thus, you pay for coverage you will never have! But that is the way it is structured in our state. A change should occur so that the full limits are available so we are not a “set off” state anymore.

Example: If you are injured by a negligent motorist with only $15,000 per person coverage in that vehicle’s policy (the minimum limits required), and you have greater coverage for UM/UIM, say $300,000 per person, you have an additional sum of $285,000 available to pay per person for the injuries caused by that negligent motorist. As noted, the amount of coverage for the negligent driver is deducted from your limits so you have the difference available. The “per person” limits on your policy are limited to the “per occurrence” (i.e. for one accident) limits of that policy. For example, you may have $300,000 per person coverage but $500,000 per accident, so the total amount available is limited to $300,000 for any one person, but $500,000 for all persons injured in an accident.

How much is it worth? Under California law, you must be offered the opportunity to include UM/UIM coverage in your policy at least for the minimum limits required of $15,000 per person and $30,000 per occurrence. While the statute does not require insurance companies to offer this coverage above limits of $30,000 per person, and $60,000 per occurrence, many insurers do. However, there are conditions to purchasing these greater limits. To qualify for the increased UM/UIM limits you must purchase the same liability limits (governing claims by others if you are negligent).
Do not sign the waiver: To delete this coverage from your auto policy, you must sign a written waiver of it. That is not wise. Indeed I recommend not only that you include it but that you also apply for much higher limits to protect yourself, other occupants of your vehicle, and family members living with you from being injured by a negligent driver who does not have sufficient liability insurance to pay the full cost of the injuries resulting from that vehicle’s negligent operation. Most carriers will offer higher limits, but you should confirm that through your insurance agent.
Why do you need this coverage? The answer is because there are over 2.6 Million drivers on the road without any insurance coverage for injured victims from their negligent driving. Wow, you say! How does that happen if proof of insurance is necessary to register a vehicle. It is easy: as noted, the required minimum limits is only $15,000 per person, and $30,000 total for any one accident. In any case of real injuries, this is hardly enough to pay for medical bills, let alone income loss or pain and suffering. Also, policies get cancelled or premiums are not paid on time, so the vehicle remains uninsured for liability of a driver who negligently injures another, a passenger or someone in another vehicle.
With so many drivers without insurance on our highways, it is critical for you to purchase the highest amount of UM/UIM coverage you can. But it will not happen unless you ask your insurance company about this, and also shop to get the best coverage. It is not expensive.
Seldom do agents or brokers selling vehicle insurance explain the importance of UM/UIM coverage. At least that is my experience.
Get as much as you can: In addition to getting the highest amount of UM/UIM coverage for you and your family, I also recommend you explore obtaining excess UM/UIM coverage of at least $1 Million. The main reason for having it is so you have this additional $1 Million protection above your primary policy’s coverage or you and your family.
Our work: Recently, an article in Forbes magazine featured a story on a case in which we represented a young man who was very seriously injured by an intoxicated driver who had no insurance. Fortunately, his family had primary UM/UIM coverage plus an excess policy which provided for the son’s medical and other needs. They were so thankful that they had acted prudently and asked for and obtained this coverage.
Don’t overlook this aspect of insurance protection. For more on this topic, visit our website, or call one of our offices (see numbers below) for other articles on personal insurance that we believe you should have. (We don’t sell insurance or benefit from your purchases; but we are relieved when a client who has been injured by a negligent motorist who has no or insufficient insurance has large limits of UM/UIM protection so that we can obtain adequate compensation for the injuries.)