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Uninsured and Underinsured Motorist Coverage - Making A Claim

FILING AN UNINSURED MOTORIST LAWSUIT

Virginia law requires an insured to give notice “promptly” to the insurer or an appropriate law enforcement officer. Notice is required when the insured is in an accident with an unknown motor vehicle that did not involve contact between the two vehicles. Whether notice is prompt depends on what was practicable under the circumstances.

The plaintiff’s personal injury attorney must serve a copy of the lawsuit on the UM carrier. Mailing a copy of the lawsuit papers is not sufficient, even if the plaintiff has been negotiating with the carrier. If the owner or operator of the vehicle causing the injuries is unknown, the personal injury lawyer must serve the UM carrier as though the insurer were the party defendant. In such a case, the lawsuit names “John Doe” as the defendant.

If all the defendants are unknown, venue may lie where the plaintiff lives. Otherwise, the usual venue rules apply.

If the plaintiff’s personal injury lawyer files the lawsuit in federal court, she has the burden of proving that diversity of citizenship exists (see Chapter 4). If the insurer wishes to remove a case involving an unknown driver to federal court, then the insurance company has the burden of proving that diversity exists. The federal court will not have jurisdiction unless the citizenship of the parties is diverse.

It may be difficult for the plaintiff to establish diversity if the driver that caused the injury is unknown. Although the insurance carrier is treated as the party defendant, the plaintiff may not rely on the citizenship of the insurance carrier to establish diversity. However, if the plaintiff can show that the driver had license plates from another state, this will be sufficient to establish diversity, and the plaintiff may stay in federal court.

The insurance company may be responsible to the plaintiff for compensatory and punitive damages. The insurer must pay all sums the insured is legall y entitled to from the driver at fault. If punitive damages would be appropriate against the driver at fault, the UM/UIM carrier must pay punitive damages. Additionally, the UM/UIM carrier is liable for interest that accrues on a damages award for which there is a delay in payment. The carrier is liable for the interest even if it increases the UM/UIM coverage beyond the coverage limits in the insurance contract. However, the UM/UIM carrier is not liable for court costs. Finally, the UM/UIM carrier cannot recover attorney’s fees from the driver at fault for defending him in a UM/UIM action, but it can recover the amount paid in settlement or judgment in a subrogation action.