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One Vehicle Crashes – Uninsured Motorist Claims

Fairfax Injury Lawyer Brien Roche Addresses One Vehicle Crashes

Brien Roche

One Vehicle Crashes

On Sunday, June 7, 2020 a 22 year-old man died after a crash in Prince William County according to police.  The crash occurred around 10:30 p.m. The crash was on the Prince William Parkway.  It was near the intersection of Golansky Blvd. in Woodbridge. 

The decedent was reported as being Ezekiel Josiah Gales of Dumfries.  He was headed east on the parkway.  He lost control of his car and the vehicle went off the road.  The driver was ejected from the car and taken to the hospital.

One vehicle crashes can be covered by uninsured motorist coverage.  That is, if there was a phantom vehicle involved, then that may invoke uninsured motorist coverage.

Uninsured Motorist Claims in One Vehicle Crashes

The topic of uninsured/underinsured motorist coverage in Virginia is complex to say the least.  Gerry Schwartz wrote a very excellent article on the topic that appeared in the Journal of Virginia Trial Lawyers in the summer of 1995.  That article is a good overview and analysis of uninsured motorist law.  What he recommends is that you first read the policy.  You then read the statute.  You then read the case law that may apply to the policy and statute. 

My approach is a little bit different.  I operate on the premise that the statute sets forth the minimum coverage that the carriers must provide.  A policy may add additional coverage but it cannot decrease that minimum coverage that the statute mandates.  The case law then interprets both the statute and the policies in particular cases.

As such I am going to start with the statute.

The pertinent statute is Virginia Code § 38.2-2206.

One Vehicle Crashes-UM Coverage-The Statute

It begins in subsection A by saying that the policy must pay “the insured all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle” with limits not less than the statutory minimum which currently is $25,000.  The term “all sums” becomes critical because frequently what carriers try to do is to provide for certain set-offs.  A set-off may be found in a clause within the policy entitled “Limits of Liability”.  It also may be found in a policy provision entitled “Other Insurance”.  Those types of set-offs, to the extent that they diminish the amount that the insured is legally entitled to, are invalid.  

In a typical such clause the policy may say that the uninsured motorist payments are reduced by any liability payments made to a plaintiff under the same policy.  Such a set-off is certainly invalid as to the named insured and may be invalid as to a passenger who is simply an insured.  

One Vehicle Crashes-Named Insured vs.Insured

The statute defines the term “insured” to consist of the named insured and then the “insured”.  The named insured includes the person who is actually named on the Declaration Page of the policy.  Also that term includes the spouse, relatives, wards or foster children of either spouse living in the same household while in a motor vehicle or otherwise.  

What that means is that the spouse may be a named insured.  Children may be a named insured.  Even foster children may be a named insured.  It makes no difference whether they’re in a motor vehicle or not in a vehicle. 

As such as a pedestrian they would be covered by the uninsured motorist policy.  They may be in a public bus and they would be covered.  

The second class of persons under a policy are referred to as “the insured”.  The insured is any person who uses the motor vehicle to which the policy applies with the express or implied consent of the named insured.  This includes a passenger in the motor vehicle.

Named Insured Has Greater Rights

The named insured has greater rights than does the insured.  

As Gerry Schwartz says, “The way to think of the named insured is that the uninsured motorist policy is actually glued to that person.”  That coverage follows the person wherever that person goes.  Another simple aphorism of insurance law is that coverage follows the vehicle.  What that means is that in trying to determine what liability coverage is primary, that primary coverage is the one that follows or is on the vehicle.  

The insured includes a passenger in an automobile.  This applies also if the vehicle is either a temporary substitute auto or what is called a “non-owned auto”.  As such the passenger in this circumstance is entitled to all of the same uninsured motorist coverage that the driver is entitled to.  However if the driver does something to void coverage for himself, this does not mean that the coverage is voided for the passenger.

Example

To borrow the example Gerry Schwartz uses in his article, Maryanne and Rebecca borrow Paul’s car and are injured as a result of the fault of Maryanne and Mr. Jones, an uninsured driver.  Paul’s limits are $50,000 liability and UIM per person.  Rebecca (the passenger) can claim Paul’s uninsured motorist coverage.  Maryanne, the driver of Paul’s car at the time of the crash, lives with her grandfather who has a separate policy with uninsured motorist limits of $100,000.  Also Rebecca can claim the uninsured motorist coverage under that same policy.  As such Rebecca’s total coverage is $150,000 in liability coverage from the two policies and $150,000 in uninsured motorist coverage under the two policies for a total of $300,000.

There is no credit applied in that case because Mr. Jones is uninsured.

One Vehicle Crashes-UM Coverage-Available for Payment

The statute defines the term “available for payment”.  It means the amount of liability coverage reduced by the payment of any other claims arising out of the same occurrence.  For instance if there are three people injured in one collision and the total policy is $100,000, then the amount available for your plaintiff may only be $25,000.  The other $75,000 may have been paid to the two other claimants.  Normally in a case like that a liability carrier will not settle with any one claimant unless they can settle with all three.  That settlement may involve the payment of the entire policy in equal amounts or it may involve pro-rata payments based upon the size of each overall claim.  

Priority

The statute then goes on to set forth an order of priority.  That order of priority applies to instances where there is more than one underinsured motorist policy.  Any credits that are to be applied shall be likewise credited in this same order of priority.  The order of priority is the following:

  • The policy covering the vehicle carrying the plaintiff.
  • Policy covering a vehicle not involved in the crash under which the plaintiff is a named insured.
  • The policy covering a vehicle not involved in the crash under which the plaintiff is simply an insured.  
  • Where there is more than one insurer providing coverage under one such priority, then their responsibility is pro-rata based upon their overall coverage.  

The term “available for payment” is important in defining whether a vehicle is uninsured.  If the at-fault motorist has a $25,000 policy and $10,000 is paid out, then the amount available is $15,000. Where the plaintiff has $100,000 of underinsured motorist coverage, then the amount available for payment is $85,000.

One Vehicle Crashes-UM Coverage-Stacking

It used to be that stacking within a policy was allowed.  That is, if there are several vehicles on the policy, then the uninsured motorist coverage could be stacked one vehicle on top of the other.  Now that is disallowed in most policies.  What is allowed however is inter-policy stacking.  

To determine exactly how that works, you need to first calculate the total coverage from each policy that provides the plaintiff uninsured motorist coverage.  You then deduct from that the total coverage on each liability policy that covers each defendant.  However a passenger in a single auto accident cannot stack the uninsured motorist coverage from the driver’s policy.  Trisvan v. Agway Ins. Co., 254 Va. 416 (1997)

If you have two parties that are at fault for the crash, then you do that per party.  Assume the total available uninsured motorist coverage is $250,000.  The total liability coverage for a single defendant is $100,000.  The available coverage then is $150,000.  

Credit Example

These calculations can also get into the application of what is called “the credit”.  Using an example from Gerry Schwartz’s article, assume that the plaintiff has a $100,000 judgment.  The defendant’s liability coverage is $50,000.  Plaintiff has $50,000 uninsured motorist coverage on his vehicle and is also insured under his mother’s vehicle for an additional $50,000 uninsured motorist coverage.  The plaintiff has a total of $100,000 in underinsured coverage.  The plaintiff is underinsured by $50,000.  His carrier gets the credit for the $50,000 liability coverage and therefore pays nothing.  His mother’s carrier however pays the additional $50,000.

The statutory credit only applies in underinsured motorist cases.  

UM Claim-Scenario One

Plaintiff is a passenger in a vehicle involved in a 3 car crash and is permanently injured.  All 3 drivers are at fault.  The vehicle that the plaintiff was in has $50,000 in coverage.  Vehicle 2 has $25,000 in coverage.  Vehicle 3 has $100,000 in coverage.  There are also 2 policies held by relatives living in the plaintiff’s household.  They each have $50,000 in coverage (household coverage).  The question is, what is the maximum amount of coverage available to the plaintiff?

Liability and UM Coverage

First you need to calculate the total liability coverage:

Host vehicle:   $50,000.00

Vehicle #2:        25,000.00

Vehicle #3:      100,000.00

Total:              $175,000.00

Next calculate the total of UM coverage:

Host vehicle:      $50,000.00

Household Vehicle:         50,000.00

Household Vehicle:         50,000.00

Total:              $150,000.00

UIM Coverage

Next calculate the amount of underinsured motorist (UIM) coverage. Keep in mind that a vehicle is underinsured to the extent that the liability coverage is less than the total uninsured motorist coverage.  To do this you must look at each vehicle separately.  A vehicle in which the plaintiff is a passenger typically cannot provide both liability coverage to the driver and UIM coverage to a passenger .  As such there is no UIM benefit under the host vehicle policy for the host’s liability.

As to Vehicle #2, this vehicle is underinsured by $125,000.00 because there is $150,000.00 in available UM coverage and only $25,000.00 in liability coverage.  The host vehicle does get a credit for the $25,000.00 in liability coverage.  Therefore the host vehicle will pay $25,000.00 in UIM benefits.  Vehicles #2 and #3 will pay their policy limits each of $50,000.00.

As to Vehicle #3, this vehicle is underinsured by $50,000.00.  Vehicles #2 and #3 have paid their full policy limits and therefore they are not further exposed.  The host vehicle has only paid $25,000.00 of its UM coverage.  If the host vehicle is entitled to a credit then the plaintiff will recover the $175,000.00 in liability coverage plus $125,000.00 in UIM benefits.

Contact

Call, or contact us for a free consult. Also for more info on this issue see the Wikipedia pages.

Also see auto liability coverage. See also UM coverage

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One Vehicle Crashes – Uninsured Motorist Claims

Fairfax Injury Lawyer Brien Roche Addresses One Vehicle Crashes

Brien Roche

One Vehicle Crashes

On Sunday, June 7, 2020 a 22 year-old man died after a crash in Prince William County according to police.  The crash occurred around 10:30 p.m. The crash was on the Prince William Parkway.  It was near the intersection of Golansky Blvd. in Woodbridge. 

The decedent was reported as being Ezekiel Josiah Gales of Dumfries.  He was headed east on the parkway.  He lost control of his car and the vehicle went off the road.  The driver was ejected from the car and taken to the hospital.

One vehicle crashes can be covered by uninsured motorist coverage.  That is, if there was a phantom vehicle involved, then that may invoke uninsured motorist coverage.

Uninsured Motorist Claims in One Vehicle Crashes

The topic of uninsured/underinsured motorist coverage in Virginia is complex to say the least.  Gerry Schwartz wrote a very excellent article on the topic that appeared in the Journal of Virginia Trial Lawyers in the summer of 1995.  That article is a good overview and analysis of uninsured motorist law.  What he recommends is that you first read the policy.  You then read the statute.  You then read the case law that may apply to the policy and statute. 

My approach is a little bit different.  I operate on the premise that the statute sets forth the minimum coverage that the carriers must provide.  A policy may add additional coverage but it cannot decrease that minimum coverage that the statute mandates.  The case law then interprets both the statute and the policies in particular cases.

As such I am going to start with the statute.

The pertinent statute is Virginia Code § 38.2-2206.

One Vehicle Crashes-UM Coverage-The Statute

It begins in subsection A by saying that the policy must pay “the insured all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle” with limits not less than the statutory minimum which currently is $25,000.  The term “all sums” becomes critical because frequently what carriers try to do is to provide for certain set-offs.  A set-off may be found in a clause within the policy entitled “Limits of Liability”.  It also may be found in a policy provision entitled “Other Insurance”.  Those types of set-offs, to the extent that they diminish the amount that the insured is legally entitled to, are invalid.  

In a typical such clause the policy may say that the uninsured motorist payments are reduced by any liability payments made to a plaintiff under the same policy.  Such a set-off is certainly invalid as to the named insured and may be invalid as to a passenger who is simply an insured.  

One Vehicle Crashes-Named Insured vs.Insured

The statute defines the term “insured” to consist of the named insured and then the “insured”.  The named insured includes the person who is actually named on the Declaration Page of the policy.  Also that term includes the spouse, relatives, wards or foster children of either spouse living in the same household while in a motor vehicle or otherwise.  

What that means is that the spouse may be a named insured.  Children may be a named insured.  Even foster children may be a named insured.  It makes no difference whether they’re in a motor vehicle or not in a vehicle. 

As such as a pedestrian they would be covered by the uninsured motorist policy.  They may be in a public bus and they would be covered.  

The second class of persons under a policy are referred to as “the insured”.  The insured is any person who uses the motor vehicle to which the policy applies with the express or implied consent of the named insured.  This includes a passenger in the motor vehicle.

Named Insured Has Greater Rights

The named insured has greater rights than does the insured.  

As Gerry Schwartz says, “The way to think of the named insured is that the uninsured motorist policy is actually glued to that person.”  That coverage follows the person wherever that person goes.  Another simple aphorism of insurance law is that coverage follows the vehicle.  What that means is that in trying to determine what liability coverage is primary, that primary coverage is the one that follows or is on the vehicle.  

The insured includes a passenger in an automobile.  This applies also if the vehicle is either a temporary substitute auto or what is called a “non-owned auto”.  As such the passenger in this circumstance is entitled to all of the same uninsured motorist coverage that the driver is entitled to.  However if the driver does something to void coverage for himself, this does not mean that the coverage is voided for the passenger.

Example

To borrow the example Gerry Schwartz uses in his article, Maryanne and Rebecca borrow Paul’s car and are injured as a result of the fault of Maryanne and Mr. Jones, an uninsured driver.  Paul’s limits are $50,000 liability and UIM per person.  Rebecca (the passenger) can claim Paul’s uninsured motorist coverage.  Maryanne, the driver of Paul’s car at the time of the crash, lives with her grandfather who has a separate policy with uninsured motorist limits of $100,000.  Also Rebecca can claim the uninsured motorist coverage under that same policy.  As such Rebecca’s total coverage is $150,000 in liability coverage from the two policies and $150,000 in uninsured motorist coverage under the two policies for a total of $300,000.

There is no credit applied in that case because Mr. Jones is uninsured.

One Vehicle Crashes-UM Coverage-Available for Payment

The statute defines the term “available for payment”.  It means the amount of liability coverage reduced by the payment of any other claims arising out of the same occurrence.  For instance if there are three people injured in one collision and the total policy is $100,000, then the amount available for your plaintiff may only be $25,000.  The other $75,000 may have been paid to the two other claimants.  Normally in a case like that a liability carrier will not settle with any one claimant unless they can settle with all three.  That settlement may involve the payment of the entire policy in equal amounts or it may involve pro-rata payments based upon the size of each overall claim.  

Priority

The statute then goes on to set forth an order of priority.  That order of priority applies to instances where there is more than one underinsured motorist policy.  Any credits that are to be applied shall be likewise credited in this same order of priority.  The order of priority is the following:

  • The policy covering the vehicle carrying the plaintiff.
  • Policy covering a vehicle not involved in the crash under which the plaintiff is a named insured.
  • The policy covering a vehicle not involved in the crash under which the plaintiff is simply an insured.  
  • Where there is more than one insurer providing coverage under one such priority, then their responsibility is pro-rata based upon their overall coverage.  

The term “available for payment” is important in defining whether a vehicle is uninsured.  If the at-fault motorist has a $25,000 policy and $10,000 is paid out, then the amount available is $15,000. Where the plaintiff has $100,000 of underinsured motorist coverage, then the amount available for payment is $85,000.

One Vehicle Crashes-UM Coverage-Stacking

It used to be that stacking within a policy was allowed.  That is, if there are several vehicles on the policy, then the uninsured motorist coverage could be stacked one vehicle on top of the other.  Now that is disallowed in most policies.  What is allowed however is inter-policy stacking.  

To determine exactly how that works, you need to first calculate the total coverage from each policy that provides the plaintiff uninsured motorist coverage.  You then deduct from that the total coverage on each liability policy that covers each defendant.  However a passenger in a single auto accident cannot stack the uninsured motorist coverage from the driver’s policy.  Trisvan v. Agway Ins. Co., 254 Va. 416 (1997)

If you have two parties that are at fault for the crash, then you do that per party.  Assume the total available uninsured motorist coverage is $250,000.  The total liability coverage for a single defendant is $100,000.  The available coverage then is $150,000.  

Credit Example

These calculations can also get into the application of what is called “the credit”.  Using an example from Gerry Schwartz’s article, assume that the plaintiff has a $100,000 judgment.  The defendant’s liability coverage is $50,000.  Plaintiff has $50,000 uninsured motorist coverage on his vehicle and is also insured under his mother’s vehicle for an additional $50,000 uninsured motorist coverage.  The plaintiff has a total of $100,000 in underinsured coverage.  The plaintiff is underinsured by $50,000.  His carrier gets the credit for the $50,000 liability coverage and therefore pays nothing.  His mother’s carrier however pays the additional $50,000.

The statutory credit only applies in underinsured motorist cases.  

UM Claim-Scenario One

Plaintiff is a passenger in a vehicle involved in a 3 car crash and is permanently injured.  All 3 drivers are at fault.  The vehicle that the plaintiff was in has $50,000 in coverage.  Vehicle 2 has $25,000 in coverage.  Vehicle 3 has $100,000 in coverage.  There are also 2 policies held by relatives living in the plaintiff’s household.  They each have $50,000 in coverage (household coverage).  The question is, what is the maximum amount of coverage available to the plaintiff?

Liability and UM Coverage

First you need to calculate the total liability coverage:

Host vehicle:   $50,000.00

Vehicle #2:        25,000.00

Vehicle #3:      100,000.00

Total:              $175,000.00

Next calculate the total of UM coverage:

Host vehicle:      $50,000.00

Household Vehicle:         50,000.00

Household Vehicle:         50,000.00

Total:              $150,000.00

UIM Coverage

Next calculate the amount of underinsured motorist (UIM) coverage. Keep in mind that a vehicle is underinsured to the extent that the liability coverage is less than the total uninsured motorist coverage.  To do this you must look at each vehicle separately.  A vehicle in which the plaintiff is a passenger typically cannot provide both liability coverage to the driver and UIM coverage to a passenger .  As such there is no UIM benefit under the host vehicle policy for the host’s liability.

As to Vehicle #2, this vehicle is underinsured by $125,000.00 because there is $150,000.00 in available UM coverage and only $25,000.00 in liability coverage.  The host vehicle does get a credit for the $25,000.00 in liability coverage.  Therefore the host vehicle will pay $25,000.00 in UIM benefits.  Vehicles #2 and #3 will pay their policy limits each of $50,000.00.

As to Vehicle #3, this vehicle is underinsured by $50,000.00.  Vehicles #2 and #3 have paid their full policy limits and therefore they are not further exposed.  The host vehicle has only paid $25,000.00 of its UM coverage.  If the host vehicle is entitled to a credit then the plaintiff will recover the $175,000.00 in liability coverage plus $125,000.00 in UIM benefits.

Contact

Call, or contact us for a free consult. Also for more info on this issue see the Wikipedia pages.

Also see auto liability coverage. See also UM coverage

Contact Us For A Free Consultation

Contact Us For A Free Consultation