UNINSURED / UNDERINSURED MOTORIST LAW IN CALIFORNIA


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A. WHAT IS UNINSURED/UNDERINSURED (UM/UIM) COVERAGE? 

Uninsured/Underinsured Motorist Coverage is for accidents when the other driver is at fault and does not have auto liability insurance or does not have enough insurance to fully cover the loss damages.  See related article: Uninsured  Motorist  Coverage  (which explains the wisdom of having substantial UM coverage protection on your automobile insurance policy).

State law requires the provision of UM coverage when consumers purchase an auto liability policy (Insurance Code 11580.2), but such provision can be voluntarily declined and waived in writing [Insurance Code 11580.2(a)(2)].


B. TYPES OF COVERAGE:

Uninsured motorist bodily injury (UMBI) pays for injuries caused by an accident with an uninsured driver who is at fault.

Underinsured motorist (UIM) pays for injuries caused by an accident with an at-fault driver who does not have enough insurance to pay for all of the damages.   Note:  UIM  is  a part  of  UM coverage.

•  Uninsured motorist property damage (UMPD) pays for your car damage from an accident with an identified uninsured driver who is at fault. You may not need this coverage if you already have collision coverage.

 
C. WHAT IS AN UNINSURED MOTORIST/MOTOR VEHICLE?

An uninsured motor vehicle is one of the following:

 1. A vehicle not covered by a liability insurance policy.

 This includes an insured vehicle but where coverage is denied (examples: excluded driver, a stolen vehicle, etc.).

 2. An unidentified driver or unidentified owner of a hit-and-run vehicle.

 3. An insured vehicle that becomes uninsured due to the insurance company going out of business.


D. WHAT IS AN UNDERINSURED MOTOR VEHICLE?

An underinsured vehicle is one where the policy limits of the other vehicle/driver is less than your UM/UIM policy limits, and is inadequate to fully compensate you for your injuries. Insurance Code Section 11580.2(p)(2).

Note: "Policy limits" means the maximum dollar amount of coverage provided by an insurance company for a certain policy.

 
E. WHO IS COVERED UNDER A UM/UIM POLICY?

You must be hit by a vehicle.  You do not have to be inside a vehicle. You can be a pedestrian walking, bicycling, skateboarding or even sitting on a park bench.

Further, you generally must also be:

1. The named insured UM/UIM policy holder.

2. Family member of the named insureds, if they live in the same house. (Examples: in-laws, adopted children, step relationships, but not foster children).

Still further, the following persons are covered under the UM/UIM policy only when using the covered vehicle:

1. Anyone driving the covered vehicle with express or implied permission of the owner.

2. Any and all passengers of the covered vehicle.

Note: You can even be outside of the vehicle and pumping gas or checking under the hood.  Cockin vs. State Farm (1970) 6 Cal.App.3d 965.

 
F. WHAT IS REQUIRED TO ASSERT A UM/UIM CLAIM IN CALIFORNIA?

   UNINSURED MOTORIST CLAIMS:

You must establish that the at-fault driver/party is uninsured.

Typically, you file a California Dept. of Motor Vehicles SR-1 and SR-19 (request uninsured motorist certificate) from the DMV, to prove that the other driver was actually uninsured.

Hint: File an DMV SR-1 Report of Accident right away and attach a copy of the SR 1 and file it with a DMV SR-19 Financial Responsibility Information Request to prove third  party was not insured.

Statute of Limitations: Within the two-year statute of limitations, Claimants must either:

File a lawsuit against the third party (negligent driver) within two years, or

 Give written notice within two years by certified mail to his or her insurance company of a demand for uninsured motorist arbitration

 (and give the insurer written notice that lawsuit has been filed within a “reasonable time” after your actual or constructive knowledge of the defendant motorist's uninsured status. [Insurance Code 11580.2(i)(1), 11580.23(a)].

 “Constructive knowledge” is notice of a fact that a person is presumed by law to have, regardless of whether he or she actually does, since such knowledge is obtainable by the exercise of reasonable care.

 TRAPS:

A claim for UM benefits will be defeated if it ultimately turns out that the at-fault driver had coverage! Thus, a failure to file suit within the two year statute of limitations time period deadline could result in a loss of the claim against both the negligent driver and the UIM insurance carrier.

Filing suit against the uninsured driver (or Doe defendant in case of hit and run) prevents a TKO (technical knock out), in case it is later discovered, (after the two year period has expired) that the at-fault motorist did, in fact have insurance.

The UM statute of limitations time period is NOT extended for a minor’s or incompetent’s claims. State Farm vs. Superior Court (1965) 232 Cal. App. 2d, 808.  See article, Exceptions to Statute of Limitations.

 You must complete any arbitration within 5 years of the demand to arbitrate.

   UNDERINSURED MOTORIST CLAIMS:

In order to file a UIM claim, you must:

Exhaust (use up all of the) underlying negligent driver’s 3rd party insurance policy, and provide proof of payment is submitted to the insurer providing underinsured motorist coverage. Insurance Code 11580.2(p)(3).  Farmers Insurance Exchange v. Hurley (1999) 76 Cal.App.4th, 797. Quintano v Mercury Casualty Company (1995) 11 Cal 4th 1049.

Make a timely demand for UIM arbitration. The term “timely” isn’t clearly defined, but the court in Quintano implied that the underinsured motorist claim must be brought within a reasonable time following conclusion of the claim or lawsuit against the tortfeasor. The insurer may have an equitable defense for an insured's unreasonable delay in presenting the claim. Quintano, supra., 11 Cal 4th at 1064.


G. UM/UIM CLAIMS:

Can I make a UM or UIM claim? 

Phantom Vehicles: Hit-and-run accidents are covered by any uninsured motorist (“UM”) coverage on your insurance policy. To bring a UM claim for compensation:

1. Physical Contact Necessary: The hit-and-run driver’s “phantom” vehicle must actually have physically touched you (as a pedestrian) or your bicycle or motor vehicle (and not merely swerved into your lane).

Objects falling off phantom vehicle: Sufficient physical contact is shown where either a part of a vehicle or an object that the vehicle  was carrying (e.g. rock, loose debris) strikes the insured or his or her vehicle; for example a piece of furniture falls off the phantom vehicle and causes the injury.

But STATIONARY objects lying in the roadway which are struck, and thereby cause an accident with injury do not trigger UM protection; there must be some applied force from the uninsured (unidentified) vehicle. Barnes vs. Nationwide Ins. (1986) 186 Cal.App.3d, 541.

See Insurance Code 11580.2(b)(1) for the “physical contact” (direct application of force) requirement from the unknown operator’s/owner’s vehicle.  Orpusan v. State Farm Mutual Automobile Insurance (1972) 7 Cal.3d 988. 

See Oanh Thai Pham v. Allstate Ins. Co. (1988) 206 Cal. App. 3d 1193 (rock fell from unknown dump truck, bounced on the highway, and then struck claimant / plaintiff in another vehicle fulfills the physical contact rule).

Swerving to avoid collision: If you fell off a motorcycle while trying to avoid being hit or swerve to avoid the dangerously driving hit-and-run vehicle, you typically cannot bring a UM claim.

Multiple collisions: Physical contact includes when the unknown vehicle strikes a second vehicle causing the second vehicle to strike your (insured) vehicle.

Rationale for the Rule: The purpose or rationale for the contact requirement is to prevent fraud (Example, a claimant caused his or her own solo collision and hit a light pole or center divider, and then made up a story that a phantom vehicle caused the accident).

2.  Report to Police / Law Enforcement: You must report the accident to the police within 24 hours.  See Insurance Code 11580.2(b)(2).

3.  Notify Your Insurance Company:  You must report the incident to your insurance company within 30 days after the incident. See Insurance Code 11580.2(b)(2).

If 24 hours have passed, and you did not contact the police, don't give up.  Contact the police immediately.  Also, give you insurance company notice as soon as possible that you will be making a UM claim based on a hit-and-run accident, even if you do so after the 30 day period.  The insurance carrier may decide to allow coverage anyway. 

Further, you can argue that the insurance company suffered no prejudice by the delay because the law requires “prejudice” to justify denial of coverage. Beck v. State Farm Mutual Automobile Insurance Co. (1976) 54 Cal.App. 3d 347.  But if less than 24 hours has passed, report the accident within the 24 hour deadline!

WARNING: UM/UIM POLICES ARE NOT ALL THE SAME: GET THE ACTUAL POLICY WITH ALL AMENDMENTS, RIDERS, ATTACHMENTS.  THEN READ IT!

 
I. “UPON”

The Uninsured Motorist Act make available coverage for "any other person while in or UPON or entering into or alighting [getting out] from an insured motor vehicle” [Ins C 11580.2(b)].

Courts have construed the term "upon" broadly, e.g., as any position of contact with the automobile other than beneath it. Christofer v Hartford Ace & lndemnity Co. (1954) 123 Cal.2d Supp. 979, 982 (plaintiff who was struck while hunched next to rear of automobile changing tire was "upon the automobile" because his hands were "upon the wheel").

Some courts have refused to apply such a physical contact test, and instead determine the question by analyzing whether a plaintiff was merely "using" the automobile. Cocking v State Farm Mutual Automobile Insurance Co. (1970) 6 Cal.App.3d 965, 969 (extending coverage to permissive driver who was injured when struck by car while standing one to four feet from rear of automobile, and was preparing to put chains on tires).

See Atlantic Mutual Insurance Co. v Ruiz (2004) 123 Cal.App.4th 1197, 1207, stating that "[i]n determining whether the person was in such a position in relation to the vehicle as to be injured in its use, consideration must be given, not only to what the person was doing upon injury, but also to his purpose and intent."

In this case, "[a]s he [the UM claimant] was approximately one foot from the passenger door, attempting to talk with the driver, he was struck by an underinsured motorist, Alma Ogana, who was driving a minivan.” Here, the court ruled that the claimant was an "insured" for purposes of uninsured motorist coverage, even though he was outside his vehicle and adjacent to the insured vehicle.

The court also stated that, under the statute, "‘upon' means more than direct physical contact with the insured vehicle given the remedial purpose of the uninsured motorist coverage law." 

See, for example, Revesz v Excess Insurance Co. (1973) 30 Cal.App.3d 125, 128 (driver was not "in or upon" automobile when he left it for approximately 30 seconds to ask directions).

In conclusion, persons who are injured after leaving an insured automobile may or may not be covered.


J. SET-OFFS

 1. No Stacking: There is no “stacking” (combining) of California underinsured motorist benefits.

Example: If the third party (negligent driver) has $15,000/$30,000 coverage, and you have UM of $100,000/$300,000; you must deduct the $15,000 obtained from the third party (negligent driver) and can only obtain a maximum net of $85,000.00 from your uninsured motorist policy.   Calculations: $100,000 - $15,000 = $85,000.

2. Worker’s Compensation: Worker’s compensation payments you receive will be offset against (subtracted from) any potential uninsured or underinsured motorist award. Rudd v. California Casualty General Insurance Co. (1990) 219 Cal. App. 3d 948, 955.

3. Medical payments: Med-pay coverage benefits to claimant made by UM/UIM carrier do NOT allow a setoff (i.e. allows stacking) UNLESS the policy language itself allows for such set off. Cal. Ins. Code Sec. 11580(2)(h).

 Note: Some policies do not provide such set-off, so that the insured can purchase coverage that provides med pay is non-reimbursable.

Hint: Get the policy; then read the policy. Ask for written explanation from UM/UIM insurance carrier. The carrier has a duty to explain the policy to you. Cal. Code of Regulations Sec. 2695.4(a).


K. DO ANY EXCLUSIONS APPLY?

Even if the conditions of coverage are met, coverage will not apply if it is excluded. Coverage is excluded under various circumstances, including when the insured:

• Uses another person’s vehicle and its owner has similar uninsured and under-insured motorist coverage. (Ins. Code. 11580.2, subd. (c)(2).)

• Settles or receives a judgment on her action without her insurer’s written consent (UM only, not UIM). (Ins. Code, 11580.2, subd. (c)(3).)

• Occupies a vehicle that has been owned or leased for at least 6 months and is not included under the insured’s uninsured and underinsured motorist coverage. (Ins. Code, 11580.2, subd. (c)(6).)

• Is struck by a vehicle owned by the insured, except when the vehicle is being operated without the insured’s consent and in connection with criminal activity to which the insured is not a party. Ins. Code, 11580.2, subd. (c)(7).)

• Occupies a vehicle rented or leased to the insured for public or livery purposes.(Ins. Code, 11580.2, subd. (c)(8).)

• Is seeking to recover both liability and underinsurance coverage from the policy covering the vehicle that was the sole cause of her injuries (UIMC only). (See Royal Insurance Co. v. Cole (1993) 13 Cal.App.4th 880, 889.)

In addition to these statutory exclusions, you should consider all exclusions stated in the policy. In both cases, look for ways that you can claim uninsured and underinsured motorist coverage despite the exclusion. For example, exclusions in the policy that conflict with the statutory requirements for uninsured and underinsured motorist coverage (e.g. Insurance Code 11580.2) should nearly always not be given effect. (See Daun v. USAA Casualty Insurance Co. (2005) 125 Cal.App.4th 599, 606).

Disclaimer: This is a general article.  This area of the law can be highly complex.  Many issues can arise that were not discussed.  This article is not to be relied on a legal advice.  If you desire legal advice, consult or retain a lawyer regarding the specifics of your situation. Further Disclaimer.

 Author: Attorney Matthew B. Tozer
 
Copyright 2017

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