Our recent discussion of Maryland uninsured and underinsured motorist claims provided a rudimentary guide to issues of significance in such cases. See:https://www.maryland-law.com/library/maryland-auto-crash-underinsured-motorist-issues-101.cfm
This article is a more advanced tutorial on successfully anticipating problems and pitfalls in such cases.
The most obvious preliminary issue is identifying which cases will likely lead to such claims in the first place. Sometimes this is obvious as in situations where one's client is a victim of a hit and run accident, where identifying the at-fault driver is impossible or where the identified at-fault driver's insurance carrier refuses coverage for any of a number of reasons.
The less obvious cases are underinsured cases. Often, our clients are injured and the at-fault driver's coverage seems adequate and the subsequent developments including surgery, change the dynamics of the case. In all cases it is worth ascertaining at the get go, what coverages are available through both the at-fault driver and your client.
Once you have established that the crash victim's uninsured motorist coverage is greater than the at-fault driver's liability coverage it is worth notifying the uninsured/underinsured motorist carrier of a prospective claim in writing.
Once it becomes apparent that a U.M. claim is probable keep the U.M. adjuster informed as you would the liability adjuster by forwarding medical bills and reports so they can establish their own reserves and fulfill their reporting requirements.
In the modern auto and truck accident claim environment, it is often necessary to file a lawsuit in order to extract the policy limits of the at-fault driver's policy and a strategic question involves whether to merely sue the at-fault driver or to sue both the at-fault driver and the underinsured motorist carrier?
At Clark and Steinhorn, LLC our usual practice is to sue the at-fault driver both for practical and philosophical reasons.
The practical is twofold. First, the amount of effort put forth by defense counsel in a case with minimum insurance limits and significant injuries is often less great, as they know that inevitably their principal, the insurance company will ultimately pony up their policy. Thus, liability defenses are often less vigorously pursued and IMEs are less frequent.
Typically, in such cases the at-fault driver's liability insurer puts their policy on the table which then brings into play the requirements of 19-511 of the Insurance Article of the Maryland Annotated Code. Simply put, this requires your lawyer to send a letter certified mail to the underinsured motorist insurance company enclosing the at-fault driver's insurance company's offer of their policy limits.
The underinsurer then has 60 days to respond. The response can be either "yes we consent to Mr. Clark's client accepting the money from the at-fault driver's policy which then results in a release of claims against the at-fault driver" or "No we don't consent" in which case the underinsured insurance must forward a check to the victim in the amount of the at-fault driver's coverage.
For example, Michael is injured in a crash and the at-fault driver has Maryland's minimum liability insurance limits of $30,000.00. Michael has a broken leg and his case will produce a verdict in excess of the $30,000.00. Fortuitously, Michael had $250,000.00 in uninsured/ underinsured motorist coverage.
When the $30,000.00 is offered Michael's lawyer will write the previously described certified mail letter to his insurer and they will either let the at-fault driver off the hook or not. Generally speaking, the underinsured carriers are amenable to allowing the at-fault, but less insured, drivers off the hook. If they don't then Michael's insurer will have to send him the $30,000.00 offered by the at fault driver's insurance company.
