20 Oct


One important function every good attorney undertakes early on, is to ascertain the types and amounts of available coverage. This is vital and should be done as early on as possible. This issue can be re-visited often, and your information and strategy updated, as more information is developed. It is obviously useful to know if there is $15,000.00 in available coverage or $15 million! This again leads to the central point that to be TRULY certain of the coverage amounts and provisions, you should obtain and read the actual applicable insurance policy. If you are the actual insured, or a guest in the home or car of a named insured you have a right to a copy of the insurance policy.

Even if you are the opposing party (the injured plaintiff trying to obtain a copy of the policy from the defendant or his insurance policy) many states mandate that the policy also be provided to you. It can be asked for or obtained directly from the defendant (if he will); or from his insurance company (if they will, or if state law mandates); or from his insurance agent or broker; or in litigation under “discovery,” if that route must be taken. There are many ways to obtain a copy of the policy, and no particular way is the “right” way; just whichever way works. Some have even gone and obtained a small policy from the opposing insurance company just to see what their policy language and provisions include. Some have obtained insurance policies from the insurance agent or broker, or even from a secondary insurance carrier representing someone else involved in the accident [they sometimes share and exchange data]. If the insurance company refuses (when state law demands it), people have registered formal complaints with the state insurance commissioner.

At this juncture, it is important to make a clear distinction. Obtaining and reviewing a copy of the actual insurance policy and its provisions, IS NOT the same thing as obtaining the Declarations Page. This is an important document, in some ways maybe the most important document. The Declarations Page is the document that indicates exactly what the AMOUNTS of the actual insurance policy coverages are. The amounts; the types, etc. This is very important, and when used in conjunction with the actual policy itself [which explains coverages and prohibitions, etc.], you will have a complete picture of what you have and what you are up against, and will be able to more fully plan out your personal injury case and strategy.

When the policy itself as well as the declarations page is obtained, this is a good start to your case and can help determine what might be covered, whether there is stacking, etc. However, this is not the end of the analysis, only the beginning. Just because there may be ONE policy or set of coverages involved, this ABSOLUTELY does not mean that this may be the only coverage available or that can be involved. Different from “stacking” policies (the addition of multiple independent policies covering one insured) there is the principle of additive policies.

For instance, let us say that one day a person is walking to the store and goes to cross the street at an unpainted intersection; one that has a problem with the traffic light. This person gets hit by a car (traveling 40 m.p.h. in a 30 m.p.h. zone) and sustains catastrophic spinal and brain injuries and is in a coma. What potential policy/policies could this injured person pursue? The analysis can be long, but is often done by attorneys in the following way.

First, obviously one could and would pursue the driver of the vehicle. (He was speeding, and may be guilty of failure to maintain a proper lookout, negligence, etc.) Second, if the driver was borrowing the car at the time, we could pursue both the automobile OWNER’S auto insurance policy [of the car involved in the accident], as well as the DRIVER’S policy, who was driving the vehicle. Additionally, if the pedestrian had a vehicle which had medical payments coverage Med Pay, or UM/UIM coverage (uninsured motorist and underinsured motorist coverage, they are always listed together) we could pursue either or both of those as well.

UM [Uninsured Motorist] coverage covers being hit by someone with no insurance coverage at all, and UIM [Under Insured Motorist] coverage is for situations like this, where there are very large injuries and the available coverage from the defendant is inadequate. Med Pay coverage is medical payments coverage paid to medical providers for the medical treatment undergone as a result of an accident. Med Pay coverage is paid regardless of who was at fault. UM/UIM is very important coverage, and coverage that every person should have. This essentially covers you in an auto accident, as a driver or a passenger (or even as a pedestrian) when nothing else might. This is coverage you can always count on, even if the other party has no insurance at all, or only has the mandated state minimum policy (usually, $15,000.00). UM/UIM is probably the best (and most vital) all around coverage you can have.

Medical payments coverage is also important coverage to have as it covers medical bills. Neither Med Pay nor UM/UIM is mandated by the state to be able to operate a motor vehicle; these are optional coverages. However, UM/UIM is important coverage, and it is VERY unwise to operate without it. Finally, in our analysis of the scenario above, the pedestrian might have lawsuits against the city for an improperly working traffic control device and improperly marked crosswalk, as well as against (potentially) the contractor employed to perform those repairs (if any, and if they were done negligently). The list could potentially go on and on, but you see the point. Obviously, there can be many layers of coverage – – not just one – – and it is important to find out what those policies are, what is covered and the amounts of coverage involved.

This should also illustrate our prior point that, in essence, damages are king. Meaning, if the injuries and damages are severe enough, they will often drive the continuing search for more coverages and assets to make the injured plaintiff “whole.” Also, recognize there are other types of coverage that potentially could have been pursued. If the pedestrian had “umbrella” coverage he could have availed himself of that as well. [Umbrella coverage is additive coverage, which is also optional to obtain, and operates as sort of a “backstop” coverage, essentially above and beyond all other available coverages like UM/UIM, Med Pay, Homeowners, etc.] This “backstop” coverage, dollar for dollar and pound for pound, is THE best coverage there is.

Normally, if you have both your auto and home policies with an insurance carrier, in sufficient minimal limits like $1 million each; they will normally offer you umbrella coverage, usually in increments of $1 million, $2 million, etc., for only a couple hundred dollars a year. This is phenomenal coverage (especially for the amount charged), and coverage EVERYONE should seek to obtain if at all possible. Thus, if something truly catastrophic happened to guests in your home or auto, or you and/or your family; you would have very sufficient coverage to handle 99.9% of any accident scenario that could happen, without having to rely on some third party’s insurance coverage [if they had coverage at all]. After all, often people are uninsured or possess only the state mandated $15,000.00 minimum.

In our fictional scenario above, if our pedestrian had been hit by a combination semitractor/trailer, there may have been EVEN MORE levels of insurance to pursue. (There would have been the owner/operator’s own policy, the dispatcher’s policy, the shipping company’s freight policy, etc.; these are governed by D.O.T., I.C.C., etc. and mandated for all such trucks who must have these coverages). Further, we could take the analysis another step if the accident happened on private business property (perhaps at the edge of the property line), there may have been involvement with the premises liability policy (depending on the factual scenario). There are any number of policies which could be brought into play or involved in accidents like this. These are fact driven with many potential scenarios which would determine and dictate what kinds of coverages we might pursue. It is also important to note, that to “involve” coverage, one only need forward an arguable claim. Not everything at this stage needs to be 100% certain. When in doubt, forward the claim and let the insurance company(ies) deal with the matter.

The above fictional setting serves to illustrate that there can be many insurance companies involved with various layers of coverages. However, pursuing these commercial insurance policies are not the only possibility in circumstances such as this. There are other types of coverages. There can be claims involving the government or governmental agencies (selfinsured type claims), as well as state or local municipalities which are likewise self-insured [or that have self-insured retentions – like large deductibles]. Essentially, local, state and federal entities enjoy what is known as “sovereign immunity,” and are generally immune from lawsuits. However, almost every one of them has a statutory (partial) waiver of this sovereign immunity, in which they allow suit to be filed against themselves up to certain pre-determined threshold limits. Some entities have insurance; or are self-insured; or have a self-insured retention (basically self insurance up to a point, and insurance beyond that – like a deductible).

Each entity sets its own rules. Federal agencies allow suit to be filed via the Federal Tort Claim Act (F.T.C.A.) regardless of the amount of the claim. First, you must file a form (SF 95) and the agency has so many months to evaluate the claim and make an offer (or refuse to make an offer at all). You cannot file suit against the federal agency in federal court until the SF 95 has been filed with the appropriate agency, and either the time period for evaluating the claim has elapsed or the claim is denied. After that, a plaintiff has a certain period of time by which they must then bring their federal law suit.

In addition to the above, there are other types of policies. In some states, the regular automobile liability policies are labeled Personal Injury Protection (P.I.P.) policies. These not only offer the regular type of automobile liability and/or UM coverages, but these also offer an extended kind of medical payments coverage whereby a wide variety of things are included; as well as long term care and extended coverage, and wage loss/disability are also added to help someone fully recover. Often these policies allow coverages in the hundreds of thousands of dollars for surgeries, medical care, extended physical therapy, convalescent care, etc., and there are also extensive wage loss provisions as well which can provide someone with coverage for wage losses due to injury for years, in amounts totaling tens of thousands of dollars. This is very good and comprehensive coverage.

Obviously, each policy is unique and has unique provisions and coverage amounts. Each state mandates the minimum coverages a policy must cover. Such policies can be a valuable resource and should be investigated fully, even if one was merely a passenger in another’s vehicle. This is where reading the policy carefully and accurately can be of great benefit and extremely helpful to you.

An example of the importance of carefully reading an insurance policy, was made clear by two different salesmen who happened to work for a large Chevrolet dealership who were injured in unrelated auto accidents several months apart. Neither salesmen was at fault, and both were rear-ended by people who had relatively modest policies of less than $25K. Likewise, both salesmen had concurrent workman’s compensation claims because the accident happened while they were at work. However, there are legally set limits on what can ultimately be recovered from workman’s compensation, regardless of your injuries.

Because both salesmen were fairly hurt, the hunt was on to try to find additional policy limits. Neither had their own UM/UIM policy limits, and it was assumed that because workman’s compensation was involved that ALL they could receive was the negligent, third party defendant insured’s policy limits. Finally, someone exercised due diligence and demanded a copy of the policy from the EMPLOYER’S (Chevrolet Dealership) automobile insurance company. This was met with immediate hostility and resistance; both from the Chevrolet Dealer as well as from their insurance broker and insurance company. All involved tried to claim that the workman’s compensation policy was the “exclusive remedy” to the salesmen and all that they could go after. Normally, this would be the case in a properly constructed and written policy.

The employer/auto dealer (Chevrolet) and its’ automobile insurance carrier were none to happy to provide the policy – but they were required to by law. Both entities assured the salesmen that this dealership had been around for many years and that workman’s compensation was all that was available to them or that they could receive; and that the policy provided no coverage for them. They were wrong! Quite plainly the insurance policy had a provision for UM/UIM coverage (even though the dealership insisted that this was meant only for the owner and the general manager of the dealership). Unfortunately for them, the policy was not written that way, establishing such exclusions.

Because of a careful reading of the policy, and the provisions which were there (and NOT there) and not just making assumptions or listening to other people, BOTH salesmen ended up receiving policy limits from the respective 3rd party defendants AND from the Chevrolet dealership (UIM) auto insurance policy. Needless to say, the dealership management was quite upset but could stop none of it. The dealership automobile insurance company did not want two bad faith claims ON TOP of the UIM claims. So, the dealership that had gone for years without any such claims, suddenly had two claims against it.

Everyone involved learned a valuable lesson about READING THE POLICY! Simply “assuming” things had created this situation and allowed it to go on for years. The policy was later changed to specifically EXCLUDE salesmen or anyone receiving workman’s compensation claims, which is perfectly legal and how most policies are written. However, by then the dealership had two chargeable claims against it. The salesmen later went back to work there, as they were legally protected under workman’s compensation law and entitled to their jobs again. Simply reading the policy proved very valuable for both men; and it also made one wonder how many other salesmen over the years could have used the policy, but did not, simply because they either listened to the dealership personnel or DID NOT READ THE POLICY?!

The above are examples of just some of the different types of coverage that could be available to you in auto accident injury cases. Similar provisions might be found concerning a different type accident involving a different policy; for instance a premises liability policy involving a slip and fall or an injury on commercial property. Finding out all that you can, and all of the benefits and provisions available to you, simply takes being a little creative and looking for all possible policies or avenues of coverage, and writing a few letters. Simply exercising a little diligence. In addition to finding out about types of coverages and provisions, one may also find out about policy size from the adjusters themselves. Sometimes they will outright tell you, but some have misgivings [or there may be company policy against that] and feel like people would “over treat” and run up huge medical bills if they knew there was a large policy. More often, insurance adjusters will not necessarily “tell” you [or be able to] policy limit amounts, but they can and often do give you strong hints. So, even if they will not tell you outright, there is still information to be had there.

For instance, an adjuster might state that the vehicle insured has “small” policy limits (generally meaning a minimum $15K policy or at most a $25K policy); whereas if they indicate a “medium” policy limit is involved, they generally mean a $25K to $50K policy. Stating their insured has a “large” policy limit amount, usually means $100K or more. If the adjuster indicates that the policy limits are “extremely large” or indicates that policy limits are “adequate/or adequate regardless of claim size,” this generally indicates the largest size policies of $1 million or above; or as a minimum $500K. The reason they say “adequate” is just that; virtually no matter what size the claim ends up being, those policy limits are usually sufficient. Thus, even though you may not always get the exact number from the insurance company, even these hints can be of benefit to you in determining what is, or may be, available for your claim.

You can find also sometimes find policy information in a variety of places. You can do online searches or do basic legal information searches. One common place to obtain other insurance information is from the insurance companies themselves, or from brokers or agents. Often times insurance companies will write other insurance companies with their questions, concerns, or theories of liability. Likewise, they write and put other carriers (and parties) on notice that they have “subrogation” rights (the right to recover or recoup amounts they have expended on a claim that was not “their fault,” etc.). Often, insurance carriers are more candid with each other than they are with claimants. Sometimes, just simply asking one carrier, [such as asking your own carrier for a copy of their file] or “poking around” a little bit can often yield the results you seek.