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Posted in Uncategorized on February 18, 2016   |  by Gary Burger

Repeat Auto Crashes and an Underinsured Claim

I thought I would share a story about my client Audra. Last week I settled her car crash cases. Two aspects of her claims were unusual.  First, she had one rear end collision, went to the ER, and went to a chiropractor.  On her way to her fourth (and last) visit she was rear ended again.  She was injured more in the second crash. She had physical therapy, orthopedic consultation, back injections, and is permanently injured. What do you do when the defendants in each accident will blame each other for damages?  File one lawsuit against both defendants for both accidents. We litigated the case, took depositions, and settled both claims – one the Friday before the Monday trial.
Second, there still was not enough money to fully compensate her for her damages – so we are now filing her underinsured lawsuit against her insurance company.  She had worked the same medium labor job for 15 years at a local grocery store.  After the car crashes, she couldn’t work at all. Her pain was truly excruciating and her doctors restricted her activity.  She worked hard to improve herself and eventually was able to return to work. Her employer was great and put her in a less strenuous job – but she makes less.
Underinsured coverage applies when a negligent driver does not have enough insurance to cover all your damages. If your damages are $100,000 and the driver who crashed into you only had $25,000 in insurance coverage, you are underinsured for $75,000. Insurance companies sell coverage to fill in this gap. We always make underinsured claims where damages exceed coverage.
To make an underinsured claim, we first have to settle the claim with the main tortfeasor and exhaust their coverage (including excess or umbrella and we get an affidavit of no more insurance). If a negligent driver has $25,000 in insurance and settles for $20,000, there is no underinsured claim. Insurance companies erect roadblocks against their own insureds in underinsured claims. They do not tell claimants they have underinsured coverage or how to make a claim. Often they will have separate claims adjustors and separate departments for underinsured coverage. After I made Audra’s underinsured claim, the adjustors were calling me to ask if I was really trying to settle a property damage claim, get medical payment coverage or what mistake had I made. Obstacles decrease payouts and improve profits.
After an underinsured claim is made clearly and in writing, the insurance company assigns a separate underinsured claims adjustor. We communicate with that adjustor about the status of the claim and advise when we are about to settle the claim against the negligent driver (they want to make sure there is no more insurance). We get a full recovery from the underinsured carrier for all damages, make time limited, policy limit demands and file suit quickly. In Illinois, we make an arbitration claim as all policies mandate arbitration (which is enforced by statute).
Underinsured policies usually provide a “set off” or credit for the amount recovered from the negligent driver. Lack of disclosure of this is, frankly, a misrepresentation by the insurance company. When you buy $100,000 in underinsured coverage, it is promised as such and you pay the premium on that amount. What you do not realize is only $75,000 in coverage is provided because the negligent driver would have at least $25,000 in coverage.
Please call or email if I can ever help like we helped Audra. We generously share fees with referring lawyers under Rule 4-1.5(e). I hope this note was informative and thanks for reading.