By now, it is well-known that accident claims are largely limited to insurance coverage. (In 25 years of practice, I can count the number of judgments pursued against individuals personally on one hand). But what happens if the responsible party is irresponsible (literally) and fails to purchase insurance?
If you sustain damages or injury in an accident but find out that the other driver did not have insurance, it might seem all hope is lost. It is not. Title 38.2 of the Code of Virginia requires that drivers who have liability coverage must be also provided with “uninsured and underinsured motorist coverage” by their own carriers. This means that you may be able to assert a claim directly against your own insurance company even when it seemed at first that you would never receive compensation.
Of course, doing so raises its own set of problems. Clients are frequently concerned that they maintain a good relationship with their own carrier. They also worry such a claim may increase their insurance rates. Finally, what happens if they initially begin to cooperate with your own carrier but end up having an adverse legal relationship? May recorded statements and other materials provided to the carrier under the cooperation clause in their policy be used against them?
All of these concerns are valid and need to be carefully balanced. For example, “failing to cooperate” as defined in your insurance policy may void your insurance coverage, but providing unlimited access to your medical records, witness testimony, etc. may also diminish your case. If your rates do go up, will the value of your case serve to offset any increased premiums?
A constant theme of these blogs is that many answers lie in a gray area. Perhaps this is one of the main reasons for retaining counsel. (After all, if things were black and white, why would you need to seek professional advice?). In our experience, injury cases which have real merit are almost always worth pursuing. Insurance rates are established through a complicated “underwriting” process which may in fact consider the size and amount of claims you have asserted. But experience also dictates that underwriters are far more interested in things like moving violations, number of teenage drivers, zip code of residence, etc.
In summary, someone injured by an uninsured or underinsured motorist most certainly has rights. Whether to assert a claim can be difficult to ascertain at first. If you or someone you know has a question, it is always better to seek the assistance of legal counsel who can help you get to the bottom of the matter.