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Underinsured motorist claim

San Jose, CA |

I was in a severe car accident as to which I was not at fault. However, I have a lawsuit going against the other driver, and may or may not be able to to be compensated by the other drivers' (who was insured) insurance company. My question is, if I win my lawsuit against them, can I still file for an underinsured motorist claim with my insurance if the other driver has only the minimum limits of coverage required by law, but those limits are insufficient to compensate me fully for my injuries. Do the same terms apply if I lose my case?

Also, do I file an underinsured motorist claim before or after my case has been settled regardless of the outcome of the lawsuit?

Attorney Answers 6


  1. If you file a UM or UIM claim, it means that you, as the claimant, file a claim against your own insurance company. However, your insurance company then steps into the shoes of the other driver's insurance company and defends the driver at fault. There are many ways your insurance company can avoid paying you the compensation you deserve. To protect your rights, you should consult an experienced lawyer as soon as possible.

    When you present an uninsured or underinsured motorist claim to your own insurance company, they have an obligation, both contractually and statutorily, to be fair, just, and reasonable in responding to your claim. As a caveat, you should always put your insurance carrier on notice of your claim and the defendant's policy limits before settling so that your carrier can't come back and say that you should not have settled.


  2. You asked this same question this morning. The answer is still that you do NOT understand. You CANNOT settle without YOUR insurance company's written permission. If you do, you waive your underinsurance claim. Your insurance company has the right to choose whether it will 1.) Let you take the defendant's policy limits or 2.) PAY YOU the same amount of money and substitute FOR YOU in any suit. You CANNOT settle ANY claim without signing a release. If you do that without the express written permission of YOUR insurance, you waive your underinsurance (UIM) claim.

    If this information has been helpful, please indicate by clicking the up icon. Legal Disclaimer: Mr. Candiano is licensed to practice law in Illinois and Indiana. 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. Links: ccandiano@themargolisfirm.com http://www.themargolisfirm.com


  3. You would need to get written permission to settle or you would "waive" the claim.


  4. This is an excellent question. The rules are different in different states and the answers supplied by other attorneys are likely true in their states but not necessarily in California.

    In California (quoting from the Rutter Group California Practice Guide: Personal Injury:

    Underinsured motorist cases—consent not required: An insured's failure to obtain the insurer's consent to a settlement with (or judgment against) an underinsured motorist does not result in loss of the insured's underinsured motorist coverage. Reason: The insured cannot recover from his or her carrier until after the bodily injury limits of the tortfeasor's policy have been exhausted by settlement or judgment (Insurance Code Section 11580.2(p)(3)). The carrier could thwart the insured's ability to collect on the uninsured motorist coverage simply by refusing to consent to a settlement. Moreover, the carrier does not have a statutory subrogation right against the underinsured tortfeasor and thus does not need the protection of a consent provision.

    For practical reasons, though, my practice is to always contact my client's automobile insurance carrier, advise that we are going to make an Underinsured Motorist Claim and ask them to tell me, in writing, exactly what they will need in order to comply with their particular requirements for a UIM Claim.

    So, bottom line: You will NOT waive your UIM claim just by settling with the other party's carrier. However, subject to very few exceptions, you MUST, absolutely MUST, exhaust their policy limits (not a single penny less) in order for your UIM Coverage to kick in. Speak to a lawyer -- this is not something that anyone should handle on their own because the claims can be tricky.

    I regularly handle Underinsured Motorist Claims for my clients. For various reasons, UIM Claims are a favorite of mine.


  5. Why would you be handling a case like this without an attorney? If you are handling this case on your own without an attorney there is a good chance you may not get a judgment or settlement above the insureds policy limits.

    My firm handles car accident cases all over the State of California. You may call me for a free consultation at 800-816-1529 x. 1.

    My website is located at www.thepersonalinjury.com .

    No attorney/client relationship is or shall be created by this response on Avvo to non-clients of The Law Offices of Norman Gregory Fernandez.


  6. You must exhaust the deft's insurance before being able to make an underinsured motorist claim. if you lose your lawsuit, or do not get a judgment equal or greater than deft's policy limits, you have no uim claim.

    Assuming you exhaust the deft's limits, you can make a uim claim if your uim limits are higher than the deft's liability limits. For example, if deft has 15,000.00 and they pay you that, and your uim limits are 50,000.00, you can then make a uim claim. In that case, you could seek an additional 35k (50k-15k). If you only have 15,000.00 uim coverage, you cannot make a uim claim.

    This is the current law in California where Ive practiced for 32 years (San Jose). The Consumer Attorneys Of California are backing a new law that will hopefully pass to change the way uim works here. It will hopefully do away with the credit your uim carrier gets for what you recovered from the third party, and hopefully do away with the requirement that your limits must be higher than the deft's limits to even qualify as a uim claim.

    Your attorney should have explained this to you. No consent is reqd from your uim carrier to settle with the deft.

    You make your claim after the case with the deft is concluded.

    Robert Kopelson 408-293-4000

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