Continuing the discussion we began here on some of the basics surrounding UM/UIM coverage, let us take a deeper look at some of the steps to take, questions to ask, and issues to consider while handling a UM/UIM claim.
1. Review the policy. This is the first step, the reasons for which should be fairly obvious. Take nothing for granted! In any given accident, policies will only cover certain individuals in certain situations. Make sure you know all the facts before moving forward. It would be a profound disruption in an individual’s life to believe he or she is covered when in fact he or she is not. Having clarity in the very beginning of the claims process will ensure a smooth and efficient claim.
Remember, the named insured, as well as the insured’s family members, are covered, regardless of the circumstances, as long as it was an uninsured vehicle that caused their injuries. “The uninsured motorist’s protection covers the insured and the family members while riding in uninsured vehicles, riding in commercial vehicles, while pedestrians, or while rocking on the front porch. The only relation that the insured must have to automobiles at the time of the accident is that he be injured by an automobile driven by an uninsured motorist.” Greene v. Great American Ins. Co.
2. Establish the liability of the uninsured/underinsured motorist, as well as the extent of the damages caused in the accident. UM/UIM coverage requires the insured to show that the uninsured driver is liable for the accident and the accident caused damages to the insured. This must be done in order to become legally entitled to recover benefits under a UM/UIM policy. In fact, this is required in order to determine whether or not the policy will even come into effect. The ways in which this could be accomplished are not unlike any other accident. For example, should police be called to the scene, statements should be taken from the drivers involved. Additionally, a dashboard camera and nearby security cameras, as well as witness statements can also help in determining who is at fault in an accident. Ultimately, it may be a jury that decides liability and damages if a settlement is not obtained.
3. Establish ownership, maintenance and use of the uninsured/underinsured vehicle. This is known as the Covered Vehicle Requirement, which states that, in order to recover under a UM/UIM policy, the claimant’s injury or damage must be a result of the “ownership, maintenance or use” of the covered vehicle. Accidents resulting from the ownership or maintenance of a vehicle are relatively few. “Use,” however, has been defined in such a way that most UM/UIM accidents fall into this category. The Texas Supreme Court has consistently held that the “use” language found in an insuring agreement does not require the actual operation of the vehicle. Instead, it requires only a causal relation between the covered auto and the injury or damage. To be a producing cause of harm, the use must have been a substantial factor in bringing about the injury, which would not have otherwise occurred. When the injury complained of is purely incidental to the use of a vehicle, or the automobile is simply where the accident occurred, the necessary nexus between the use and the injury is not established. According to this definition, the operation of a vehicle is not necessary to meet the “use” requirement. Also of note in this language is that intentional acts are not covered.
4. Finally, review the implications of the statute of limitations. The statute of limitations, as it applies to UM/UIM claims, is four years from a denial of the claim by the carrier. This is odd, given the fact that the statute of limitations for any claim of negligence that could be brought against the uninsured motorist is only two years. Still, the lesson here is the same as so many other accidents that occur on the road: If it is necessary to file a claim, it should be done as soon as possible. There is a ticking clock working against the victim from the minute the accident takes place, and delayed action may mean missing out on the compensation he or she is entitled to. If the plaintiff allows the limitations period to run against an insured motorist, the carrier still gets the credit for the, now uncollectable, liability limits.
If followed, these steps will help you determine the “where, when and how” of a UM/UIM case, if one can recover damages and, if so, how much. However, properly assessing a UM/UIM does not end here. This article is the first in a series that will examine important issues to consider and address in any accident in which an uninsured or underinsured motorist is involved. In our next article, we’ll be looking at the importance of understanding your offsets, so stay tuned!