Recent Developments In UMUIM Law

1
Recent Developments In UM/UIM Law

• Gregory A. Weimer
• Hoff Curtis
• 111 Main St.
• Burlington, Vermont
• 802-864-6400

2
Introduction

• When I use a word, Humpty Dumpty said, in a
  rather scornful tone, it means just what I choose
  it to mean neither more nor less.
• Lewis Carroll

3
Overview

• Statutory language
• Remedial Purpose of UM/UIM Coverage
• Recent Cases
• Underinsured Status
• Occupying vehicle
• Household Exclusions
• Stacking Policies
• Setoff

4
Statutory Language

• 23 V.S.A. 941 (a) no liability policy may issue
  unless coverage is provided therein . . . for
  the protection of persons insured thereunder who
  are legally entitled to recover damages, from
  owners or operators of uninsured, underinsured or
  hit- and-run motor vehicles.

5
Statutory Language

• 23 V.S.A. 941 (f) states that a motor vehicle
  is underinsured to the extent that its personal
  injury limits of liability at the time of the
  accident are less than the limits of uninsured
  motorists coverage applicable to any injured
  party legally entitled to recover damages under
  said uninsured motorist coverage.

6
Remedial Purpose of Statute

• The Vermont Supreme Court has routinely stated
  that UIM statute was adopted to address the
  unjust and anomalous situation where an insured
  was penalized if injured by an inadequately
  insured, as opposed to uninsured tortfeasor.
• UM/UIM statute is remedial and is to be construed
  liberally in favor of the insured

7
Vocabulary

• Excess Coverage Jurisdiction In an excess
  jurisdiction a tort feasor is underinsured when
  the injured partys damages exceed the
  tortfeasors liability coverage.
• Gap Coverage Jurisdiction In a gap coverage
  jurisdiction, a tortfeasor is underinsured when
  the injured partys UM/UIM coverage exceeds the
  tortfeasors liability coverage.
• Stacking where the insured is covered by more
  than one insurance policy and seeks to collect
  from a second policy on the same claim where the
  recovery under the first policy was insufficient.

8
Dusharm v. Nationwide Ins.

• Facts
• Two vehicle accident
• Car one had one occupant
• Car two had three occupants
• Damages
• Occupant car one- 700k in damages
• First occupant car two- 6500 in damages
• Second occupant- 50 k in damages

9
Dusharm Cont

• Insurance Coverage
• Responsible Driver 300 k
• Occupant two covered by two Nationwide policies
• Dispute over per person/ per occurrence limits
  and limits of coverage , how to determine
  underinsured status

10
Dusharm Cont

• the court went on to address the issue of whether
  UIM coverage is triggered when a tortfeasors
  liability insurance is equal to or greater than
  the UIM coverage, but is unavailable due to
  multiple claimants.

11
Dusharm Cont

• To the court the central issue was whether
  Nationwides UM endorsement, which failed to take
  into account the possibility that a multi-victim
  accident would render the limits of a
  tortfeasors liability insurance unavailable to a
  claimant, was consistent with Vermonts statutory
  requirements relating to underinsured motorist
  coverage.

12
Critique Of Dusharm

• Federal court seems to be moving from gap
  coverage to pure excess
• This seems contrary to Monteith v. Jefferson

13
Occupying a vehicle or location, location,
location

• When is far too far?
• When is close too close?

14
Radmann v.Truck Ins. Exchange

• Facts
• Injured employee found on road 100 feet from
  employers automobile after being struck by
  uninsured automobile.
• Held he was insured under employers policy

15
Cook v. Aetna Ins. Co.

• Facts
• Cook was a work release prisoner who routinely
  rode to work with his boss. On the morning of
  the accident he went to purchase some coffee.
  After buying the coffee he approached his bosss
  car in the parking area. He was approximately
  one foot from a car when he was struck by an
  uninsured motorist.
• Held No coverage

16
Mid-Century Ins. Co. v. Henault

• Facts
• the claimant sustained injuries when she was
  struck by an underinsured driver while she lay in
  the road after an earlier collision with another
  motorist knocked her off her uninsured
  motorcycle. She was uninjured in the earlier
  collision. She filed a claim against her pickup
  trucks UIM policy.
• You make the call

17
Family Member Exclusions

• Lunge v. Liberty Mut. Ins. Co.,
• The adult son of a corporate employee was killed
  as a passenger in a vehicle not insured by the
  corporation. The employee made a claim against
  the corporate UM policy. The carrier argued that
  because the named insured was a corporation and
  not an individual, the family member coverage
  should not apply.

18
Stacking Policies

• Sanders v. St. Paul Mercury Ins. Co.
• Intra policy Stacking
• premium rule

19
Stacking Policies

• Monteith v. Jefferson Insurance Co.
• Intra policy Stacking
• Separate policies and premiums
• Uninsured motor vehicle means a land motor
  vehicle of any type
• To which a liability bond or policy applies at
  the time of the accident. In this case its limit
  of liability must be less than limit of liability
  for this coverage

20
Setoff

• By statute and policy language an insurer is
  entitled to an offset for any monetary damages
  received by an insured from a tortfeasor.The
  issue becomes a bit more complicated when two or
  more carriers may be liable on the same claim.
  Who gets credit for the setoff then and in what
  proportion?
• State Farm Mutual Auto Ins. Co. v. Powers

21
Summary

• Importance of Courts Interpretation
• Ways to apply training

22
Where to Get More Information

• VBA Seminars
• Laurie LeClaire
• UM/UIM Article

23
We Work hard Under Stress
24
Have A Life