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Insurance Coverage

Fairfax Injury Lawyer Brien Roche Addresses Insurance Coverage

Brien Roche

You would think that the topic of auto insurance is a simple one.  Years ago some insurers began writing auto policies in what they call plain English.  Plain English to an insurer is not plain English to the rest of us. As simple as insurers may have tried to make the language, the fact is they are complex contracts.  They become more complex where you have coverage being given in one part of the policy only to be excluded or exempted in some other part.

If you’ve been involved in an crash you should contact an experienced auto accident attorney who will represent your interests – not the insurance company’s.

Basic forms of auto coverage are liability, comprehensive, collision, uninsured motorist and medical payments.

Auto Insurance Coverage for Liability

Liability coverage protects you in the event that someone else alleges that you were at fault for a crash.  By you, I mean either you as the insured or anyone who is driving your auto with your consent. Under state law anyone who is a “permissive user” is covered. Liability coverage is the only form of coverage in Virginia that comes close to being required. You can choose to pay an uninsured motorist fee in which event you may go without liability coverage.  The minimum coverage allowed in Virginia for liability is $25,000.00.

That $25,000.00 means that the insurer will pay up to $25,000.00 in the event that you were found to be at fault for the crash.  The insurer will also provide a lawyer to defend you.  The attorney is one that they choose.

Call, or contact us for a free consult.

Auto Insurance Coverage for Uninsured Motorist

Virginia allows people to drive uninsured as long as they pay the uninsured motorist fee to the state.  As a result, there are a number of people who are either uninsured or under-insured. If the damages exceed  the limits of the at fault driver then the injured person’s only recourse is to make a claim against their own under-insured motorist (UM)carrier.  UM coverage kicks in to the extent that it exceeds the liability coverage of the at fault driver.

For instance, if the at fault driver has a $25,000 policy but the injured party has UM coverage of $300,000 then the total amount that could be paid out is $300,000. The $25,000 from the at fault driver and $275,000 from the UM coverage.

Pedestrians

This latter form of coverage applies even if you are not in an insured auto. For instance if you are on foot and injured by an auto your UM coverage could apply.

UM Insurance Coverage Can Be Complex

UM coverage is something you should have to protect yourself from other drivers who may not have enough coverage. If you make a claim against your UM carrier then this should not affect your rates since the collision was not your fault.

Subrogation

UM claims can involve issues of subrogation.  This is a concept that allows an insurer that has paid out money on behalf of its insured to recover that money from the party at fault.  This issue must be addressed in a UM claim before any settlement is reached.  That is, if the UM carrier is going to recover any monies from that at-fault driver.

The insurer in pursuing a subrogation matter may seek to obtain a judgment against that at fault driver. They do this even though the at fault driver may not have any assets.

In Virginia such a judgment is valid for at least 20 years.  If that person acquires real estate, then before they can sell that real estate, they will need to satisfy the judgment.

See uninsured motorist coverage for a review of Virginia case law on this subject. Call, or contact us for a free consult.

Auto Insurance Coverage-Collision

Collision coverage applies where your vehicle has been damaged.  Fault of the driver is not an issue. If you have that coverage your insurance carrier will pay for your auto repair. If the repair cost is more than 70% of the value then the insurer will “total” the car.  They are only obliged to pay you the fair market value.  Fair market value may be determined by looking at such sites as Kelley Blue Book and Edmunds.com.  The insurers use their own book upon which they base fair market value. This can sometimes create grief. Suppose you have a lien against your car for $10,000.00. The vehicle is only worth $8,000.00.  The insurer is only obliged to pay you that fair market value. That leaves you $2,000.00 short. Gap insurance would pay this “gap” amount.

Auto Insurance Coverage-Comprehensive

Comprehensive coverage is like collision in that it covers such things as fire, theft and glass breakage.  These types of coverage apply without regard to who may be at fault.

Auto Insurance Coverage-Medical Payments

Personal injury protection insurance coverage is also known as medical payments coverage.  This coverage is what is referred to as a first party coverage. That means that the insurer that issued the policy insures all persons (first party) in the auto at the time of crash.  It is no-fault coverage.  In other words fault is not an issue. If you are in the car you are covered.

This coverage may stack. Hence if there is more than one auto on the policy then the coverage for each is added to the coverage for the others. This increases the pool of money.

This is a good thing to have.  It protects not only the driver/owner but also those in the auto. It provides a means of paying for treatment up to what the limits are.

See medical payments for a review of Virginia case law on this topic.

Even though your bills may have been submitted to your health carrier and even though you are claiming your bills in your liability claim against the at-fault driver you can still submit them to your med pay carrier.

Call, or contact us for a free consult.

Insurance Coverage-Subrogation

One thing you need to be aware of in any case is that if bills are paid by your health insurer then they have a right of subrogation.  This right means that the insurer has a right to recoup every dollar they paid out. Some contracts allow a deduct for legal fees that you incur.  In most cases that is 1/3. However that is policy specific.  That right of subrogation applies only to employer issued ERISA health policies.  Otherwise subrogation is barred in Virginia for health policies.

Homeowner’s Insurance Coverage

Homeowner’s policies in the Fairfax, Virginia area, as is true in most areas, cover most personal injury claims. They do not apply to auto claims.

A homeowner’s policy is designed to protect the homeowner and the persons that live in that home.  The most common claim is one where a person who does not live there is injured on the premises. The person alleges fault on the homeowner.

However this coverage may extend to things occurring outside the property.  For instance, if the homeowner is involved in some non-business action outside of the home that results in injury to another person then that claim may be covered.

These policies are like most insurance contracts and they cover what is called occurrences. In other words an accident that is not intended by the insured.
For more information about liability claims review our Premises Liability section.

Excess Insurance Coverage

Excess exposure in liability claims needs to be dealt with promptly.  If you are sued as a result of an auto crash or other type of claim you should promptly submit this to your insurer.
If that coverage that you have is less than the claim then you may want to consult with counsel about what can be done to protect your assets.

Asset Protection

Certain basic estate planning matters that should be looked at are to make sure that  your family home is titled in both your name and that of your spouse.  Such titling is called tenants by the entirety.  That titling protects that asset from any judgment that might be against only one of you.  If a judgment is against both of you for the same claim, then that may attach to the family home.

Cars that are driven by family members should be titled in the name of one adult.  If there is one adult in the family who is not the primary bread winner, then it  makes sense to title the car in the name of that person.  The logic being that if a car is titled in the name of both spouses then a judgment may be rendered against both.  Likewise, having the car titled only in the name of the spouse who is not the primary bread winner avoids the chance of the wages of the bread winning spouse being garnished if there is an excess judgment.

Of course, it always make sense to maintain enough coverage.  The cost of maintaining a million dollar liability policy is not that much more than a $100,000 policy.

It is not proper to attempt to hide or move your assets for the purpose of avoiding someone making a claim against you. Call, or contact us for a free consult.

Limitations and Reporting Requirements

When you are involved in an event where a claim may be made against you certain reporting requirements may apply.

There may be reporting requirements that apply based upon your insurance. Policies call for the insured to give seasonable notice to the insurer. This is to allow the insurer time to look at the matter while it is fresh. If  you deprive the insurer of that chance that may be a basis to deny coverage.

In addition statute of limitations, defined by state code, govern the amount of time you have after an injury to actually file and/or serve a lawsuit.

Bad Faith In Insurance Coverage

The concept of bad faith lawsuits became popular nearly 50 years ago.  There was a widespread problem with insurers denying claims as a matter of course.  Sometimes there was no investigation.  Sometimes there was no attempt to settle.  The insurer simply felt that they held the upper hand.  If the insured wanted their money then the insured needed to file a lawsuit alleging a breach of the insurance contract.  The insurers felt that their liability was limited.  After all the insurance policy was just a contract.  If they breached the contract, they paid contract damages.

Bad faith litigation reared its head and converted insurance contracts into diving boards for tort claims.  The nature of the tort claim was bad faith.  Bad faith at its core is really just fraud.

Types of Fraud

The topic of fraud has been addressed elsewhere on this website.  Fraud falls into four (4) general categories.  Fraud in the inducement is luring someone into a contract to their detriment.  Promissory fraud is having the intent not to perform the contract when you enter into it.  Fraud in the factum is fraud in the performance of the contract.  For instance when the contract is entered into, the intent is to investigate claims.  The insurance company makes a conscious decision not to investigate but simply deny the claim.  That could be fraud in the factum. Finally there are different types of statutory fraud.  These vary from state to state and may be governed by a federal overlay.

Level the Field

The thrust of bad faith litigation is to try to level the playing field to make the insurer deal with the insured in a fair fashion.  To put it another way, the insurer must not put its interest above that of the insured.

Bad faith lawsuits may be brought either by an insured (first party) or a third party beneficiary.  The third party beneficiary is a party who has been injured, who is asserting a claim against the insured which is then covered by a liability policy.

Different factors may apply to third party claims as opposed to first party claims.  The problem with a third party claim is initially proving standing.  That is, does the third party have standing to sue the insurance company.  If they are an intended third party beneficiary, they probably do.  The topic of standing is also addressed elsewhere on this site.

Factors

The general criteria to be looked at in determining whether or not there is bad faith or fraud are of course any of the basic elements of fraud.  In addition to that, factors that a court would look at in determining whether or not there is bad faith are:

    Misrepresentation

  • Any misrepresentation of pertinent facts.
  • Attempting to steer the claimant away from legal services.
  • Misleading the claimant as to the statute of limitations.
  • Providing false information to any examining physicians who are rendering opinions about the claimant.
  • Intentionally misconstruing terms within the policy.
  • Reducing payments to claimants on a widespread basis with the idea of nickel and diming them.  This occurs in instances where the insurer believes that nobody will challenge these diminished payouts but on a large-scale basis the insurer can save a great deal of money.
  • Claims Investigation

  • A failure to fully investigate the claim.
  • Failing to have and use reasonable standards as far as investigation.
  • Not accepting or denying the claim within a reasonable time
  • Negotiation

  • Failing to settle under one portion of a policy where there clearly is coverage/liability in order to better the carrier’s position as to another portion of the policy.
  • Failing to provide a reasonable statement as to the basis for denial.
  • Not negotiating in good faith if in fact there is an obligation to negotiate.
  • Forcing a plaintiff into arbitration when that is not mandatory.
  • Failing to settle a liability claim where the liability of the insured is reasonably probable and some damages are reasonably probable.  The mere existence of a possibility of a liability defense or damage defense typically is not sufficient, especially where there is inadequate coverage.
  • Failing to keep the insured informed of settlement offers so that the insured can then make an intelligent decision about contributing to a settlement.

Although a bad faith claim may be a remedy to hit the insurer in its pocketbook, another alternative may be injunctive relief. That is to compel the insurance carrier to comply with the terms of the policy.  Injunctions are also addressed on this website.

Brien Roche represents clients in all types of vehicle injury matters or accidents. Mr. Roche has secured compensation for clients involved in accidents involving trucks, cars and other vehicles. With over 40 years of trial experience, Brien Roche has garnered significant compensation for his clients. For a free consultation with an accident lawyer, complete the contact form on this page, or contact our office directly.

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Contact Us For A Free Consultation

Insurance Coverage

Fairfax Injury Lawyer Brien Roche Addresses Insurance Coverage

Brien Roche

You would think that the topic of auto insurance is a simple one.  Years ago some insurers began writing auto policies in what they call plain English.  Plain English to an insurer is not plain English to the rest of us. As simple as insurers may have tried to make the language, the fact is they are complex contracts.  They become more complex where you have coverage being given in one part of the policy only to be excluded or exempted in some other part.

If you’ve been involved in an crash you should contact an experienced auto accident attorney who will represent your interests – not the insurance company’s.

Basic forms of auto coverage are liability, comprehensive, collision, uninsured motorist and medical payments.

Auto Insurance Coverage for Liability

Liability coverage protects you in the event that someone else alleges that you were at fault for a crash.  By you, I mean either you as the insured or anyone who is driving your auto with your consent. Under state law anyone who is a “permissive user” is covered. Liability coverage is the only form of coverage in Virginia that comes close to being required. You can choose to pay an uninsured motorist fee in which event you may go without liability coverage.  The minimum coverage allowed in Virginia for liability is $25,000.00.

That $25,000.00 means that the insurer will pay up to $25,000.00 in the event that you were found to be at fault for the crash.  The insurer will also provide a lawyer to defend you.  The attorney is one that they choose.

Call, or contact us for a free consult.

Auto Insurance Coverage for Uninsured Motorist

Virginia allows people to drive uninsured as long as they pay the uninsured motorist fee to the state.  As a result, there are a number of people who are either uninsured or under-insured. If the damages exceed  the limits of the at fault driver then the injured person’s only recourse is to make a claim against their own under-insured motorist (UM)carrier.  UM coverage kicks in to the extent that it exceeds the liability coverage of the at fault driver.

For instance, if the at fault driver has a $25,000 policy but the injured party has UM coverage of $300,000 then the total amount that could be paid out is $300,000. The $25,000 from the at fault driver and $275,000 from the UM coverage.

Pedestrians

This latter form of coverage applies even if you are not in an insured auto. For instance if you are on foot and injured by an auto your UM coverage could apply.

UM Insurance Coverage Can Be Complex

UM coverage is something you should have to protect yourself from other drivers who may not have enough coverage. If you make a claim against your UM carrier then this should not affect your rates since the collision was not your fault.

Subrogation

UM claims can involve issues of subrogation.  This is a concept that allows an insurer that has paid out money on behalf of its insured to recover that money from the party at fault.  This issue must be addressed in a UM claim before any settlement is reached.  That is, if the UM carrier is going to recover any monies from that at-fault driver.

The insurer in pursuing a subrogation matter may seek to obtain a judgment against that at fault driver. They do this even though the at fault driver may not have any assets.

In Virginia such a judgment is valid for at least 20 years.  If that person acquires real estate, then before they can sell that real estate, they will need to satisfy the judgment.

See uninsured motorist coverage for a review of Virginia case law on this subject. Call, or contact us for a free consult.

Auto Insurance Coverage-Collision

Collision coverage applies where your vehicle has been damaged.  Fault of the driver is not an issue. If you have that coverage your insurance carrier will pay for your auto repair. If the repair cost is more than 70% of the value then the insurer will “total” the car.  They are only obliged to pay you the fair market value.  Fair market value may be determined by looking at such sites as Kelley Blue Book and Edmunds.com.  The insurers use their own book upon which they base fair market value. This can sometimes create grief. Suppose you have a lien against your car for $10,000.00. The vehicle is only worth $8,000.00.  The insurer is only obliged to pay you that fair market value. That leaves you $2,000.00 short. Gap insurance would pay this “gap” amount.

Auto Insurance Coverage-Comprehensive

Comprehensive coverage is like collision in that it covers such things as fire, theft and glass breakage.  These types of coverage apply without regard to who may be at fault.

Auto Insurance Coverage-Medical Payments

Personal injury protection insurance coverage is also known as medical payments coverage.  This coverage is what is referred to as a first party coverage. That means that the insurer that issued the policy insures all persons (first party) in the auto at the time of crash.  It is no-fault coverage.  In other words fault is not an issue. If you are in the car you are covered.

This coverage may stack. Hence if there is more than one auto on the policy then the coverage for each is added to the coverage for the others. This increases the pool of money.

This is a good thing to have.  It protects not only the driver/owner but also those in the auto. It provides a means of paying for treatment up to what the limits are.

See medical payments for a review of Virginia case law on this topic.

Even though your bills may have been submitted to your health carrier and even though you are claiming your bills in your liability claim against the at-fault driver you can still submit them to your med pay carrier.

Call, or contact us for a free consult.

Insurance Coverage-Subrogation

One thing you need to be aware of in any case is that if bills are paid by your health insurer then they have a right of subrogation.  This right means that the insurer has a right to recoup every dollar they paid out. Some contracts allow a deduct for legal fees that you incur.  In most cases that is 1/3. However that is policy specific.  That right of subrogation applies only to employer issued ERISA health policies.  Otherwise subrogation is barred in Virginia for health policies.

Homeowner’s Insurance Coverage

Homeowner’s policies in the Fairfax, Virginia area, as is true in most areas, cover most personal injury claims. They do not apply to auto claims.

A homeowner’s policy is designed to protect the homeowner and the persons that live in that home.  The most common claim is one where a person who does not live there is injured on the premises. The person alleges fault on the homeowner.

However this coverage may extend to things occurring outside the property.  For instance, if the homeowner is involved in some non-business action outside of the home that results in injury to another person then that claim may be covered.

These policies are like most insurance contracts and they cover what is called occurrences. In other words an accident that is not intended by the insured.
For more information about liability claims review our Premises Liability section.

Excess Insurance Coverage

Excess exposure in liability claims needs to be dealt with promptly.  If you are sued as a result of an auto crash or other type of claim you should promptly submit this to your insurer.
If that coverage that you have is less than the claim then you may want to consult with counsel about what can be done to protect your assets.

Asset Protection

Certain basic estate planning matters that should be looked at are to make sure that  your family home is titled in both your name and that of your spouse.  Such titling is called tenants by the entirety.  That titling protects that asset from any judgment that might be against only one of you.  If a judgment is against both of you for the same claim, then that may attach to the family home.

Cars that are driven by family members should be titled in the name of one adult.  If there is one adult in the family who is not the primary bread winner, then it  makes sense to title the car in the name of that person.  The logic being that if a car is titled in the name of both spouses then a judgment may be rendered against both.  Likewise, having the car titled only in the name of the spouse who is not the primary bread winner avoids the chance of the wages of the bread winning spouse being garnished if there is an excess judgment.

Of course, it always make sense to maintain enough coverage.  The cost of maintaining a million dollar liability policy is not that much more than a $100,000 policy.

It is not proper to attempt to hide or move your assets for the purpose of avoiding someone making a claim against you. Call, or contact us for a free consult.

Limitations and Reporting Requirements

When you are involved in an event where a claim may be made against you certain reporting requirements may apply.

There may be reporting requirements that apply based upon your insurance. Policies call for the insured to give seasonable notice to the insurer. This is to allow the insurer time to look at the matter while it is fresh. If  you deprive the insurer of that chance that may be a basis to deny coverage.

In addition statute of limitations, defined by state code, govern the amount of time you have after an injury to actually file and/or serve a lawsuit.

Bad Faith In Insurance Coverage

The concept of bad faith lawsuits became popular nearly 50 years ago.  There was a widespread problem with insurers denying claims as a matter of course.  Sometimes there was no investigation.  Sometimes there was no attempt to settle.  The insurer simply felt that they held the upper hand.  If the insured wanted their money then the insured needed to file a lawsuit alleging a breach of the insurance contract.  The insurers felt that their liability was limited.  After all the insurance policy was just a contract.  If they breached the contract, they paid contract damages.

Bad faith litigation reared its head and converted insurance contracts into diving boards for tort claims.  The nature of the tort claim was bad faith.  Bad faith at its core is really just fraud.

Types of Fraud

The topic of fraud has been addressed elsewhere on this website.  Fraud falls into four (4) general categories.  Fraud in the inducement is luring someone into a contract to their detriment.  Promissory fraud is having the intent not to perform the contract when you enter into it.  Fraud in the factum is fraud in the performance of the contract.  For instance when the contract is entered into, the intent is to investigate claims.  The insurance company makes a conscious decision not to investigate but simply deny the claim.  That could be fraud in the factum. Finally there are different types of statutory fraud.  These vary from state to state and may be governed by a federal overlay.

Level the Field

The thrust of bad faith litigation is to try to level the playing field to make the insurer deal with the insured in a fair fashion.  To put it another way, the insurer must not put its interest above that of the insured.

Bad faith lawsuits may be brought either by an insured (first party) or a third party beneficiary.  The third party beneficiary is a party who has been injured, who is asserting a claim against the insured which is then covered by a liability policy.

Different factors may apply to third party claims as opposed to first party claims.  The problem with a third party claim is initially proving standing.  That is, does the third party have standing to sue the insurance company.  If they are an intended third party beneficiary, they probably do.  The topic of standing is also addressed elsewhere on this site.

Factors

The general criteria to be looked at in determining whether or not there is bad faith or fraud are of course any of the basic elements of fraud.  In addition to that, factors that a court would look at in determining whether or not there is bad faith are:

    Misrepresentation

  • Any misrepresentation of pertinent facts.
  • Attempting to steer the claimant away from legal services.
  • Misleading the claimant as to the statute of limitations.
  • Providing false information to any examining physicians who are rendering opinions about the claimant.
  • Intentionally misconstruing terms within the policy.
  • Reducing payments to claimants on a widespread basis with the idea of nickel and diming them.  This occurs in instances where the insurer believes that nobody will challenge these diminished payouts but on a large-scale basis the insurer can save a great deal of money.
  • Claims Investigation

  • A failure to fully investigate the claim.
  • Failing to have and use reasonable standards as far as investigation.
  • Not accepting or denying the claim within a reasonable time
  • Negotiation

  • Failing to settle under one portion of a policy where there clearly is coverage/liability in order to better the carrier’s position as to another portion of the policy.
  • Failing to provide a reasonable statement as to the basis for denial.
  • Not negotiating in good faith if in fact there is an obligation to negotiate.
  • Forcing a plaintiff into arbitration when that is not mandatory.
  • Failing to settle a liability claim where the liability of the insured is reasonably probable and some damages are reasonably probable.  The mere existence of a possibility of a liability defense or damage defense typically is not sufficient, especially where there is inadequate coverage.
  • Failing to keep the insured informed of settlement offers so that the insured can then make an intelligent decision about contributing to a settlement.

Although a bad faith claim may be a remedy to hit the insurer in its pocketbook, another alternative may be injunctive relief. That is to compel the insurance carrier to comply with the terms of the policy.  Injunctions are also addressed on this website.

Brien Roche represents clients in all types of vehicle injury matters or accidents. Mr. Roche has secured compensation for clients involved in accidents involving trucks, cars and other vehicles. With over 40 years of trial experience, Brien Roche has garnered significant compensation for his clients. For a free consultation with an accident lawyer, complete the contact form on this page, or contact our office directly.

Contact Us For A Free Consultation

Contact Us For A Free Consultation