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Does underinsured coverage apply?

Buffalo, NY |

New York state. I was involved in a 3 car accident that I was deemed at fault. The driver in the 2nd car is claiming injury. I had $25k per person liability limit at the time of loss. I was told by my insurance adjuster that she also has underinsured motorist coverage in her policy of $25k, which would cover additional expenses if they exceed $25k. I was told on this forum by one attorney that this does not apply if her treatment/loss from work exceeds my policy limits. If this does apply would this have to be exhausted before they could sue me?

Attorney Answers 6


  1. Underinsured coverage only applies if the limits of the underinsured policy exceed the limits of any applicable liability policy. Since both policies are for $25k, her underinsurance would not apply. If your adjuster meant that she had a $50k underinsured policy, an additional $25k would be available to her. The injured party can sue you regardless of the coverages available as she could potentially seek to recover from you personally.

    New York Plaintiff's Personal Injury Attorney Serving NYC, Long Island, Westchester and the surrounding areas. The information provided herein is not, and is not intended to be, legal advice. The content herein is for information and educational purposes only, and is based on the limited information provided. Any information provided is not intended to, and does not, create any attorney/client relationship where none exists. For legal advice, please consult with an attorney. While this posting is made for informational purposes only for the AVVO community, to the extent one seeks to contact me based on the content herein, or that this may be viewed by some to be attorney advertising, please be advised of the following: *Attorney Advertising


  2. The party who is making the claim has the same policy limits as you do, therefore, she has no additional coverage for her bodily injury claim. Hopefully her injuries do not exceed the amount of your insurance limits. He medical expenses should be paid for by her own insurance company, so your exposure is likely limited to her pain and suffering claims.

    This response does not constitute legal advice and does not create an attorney-client relationship. Due to the complexity and ever-changing nature of the law and to the limitations of this forum, this information may not be adequate for your specific situation.


  3. No.

    Legal Disclaimer:

    If this information has been helpful, please indicate below.

    Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

    This ans. does not create an attorney/client relationship.


  4. Underinsurance applies in NY if your policy underinsurance is greater than the other vehicles and you receive all of the other policy and your injuries are greater than the other policy's limits. In this case it does not apply since the policies are for the same amount.

    If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or www.mynewyorkcitylawyer.com.


  5. Under these facts, underinsurance coverage is triggered only if the liability policy limits of the tortfeasor (the driver/car at fault) (you in this case) are less than the liability limits of car #2. Since the policy limits are the same there is no underinsurance (sometimes called "gap" insurance) coverage available, period. (If driver number had a liability policy greater than your liability coverage AND he/she purchased underinsurance coverage (e.g., 50K) then after receiving the full amount of your (the tortfeasor's) coverage, she could try to get the difference between your liability coverage (25k) and the amount of underinsurance she purchased (50K)--meaning she get try to get an additional 25K from her own insurer.
    Under your facts underinsurance does not apply. You can be sued without regards to any underinsurance. I hope that is clear.

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