by KPMLAW | Jul 12, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Kevin Kennedy Edited by Janeen Koch Two recent Virginia circuit court opinions have thrown into confusion the pre-trial duties owed by a UIM carrier to a plaintiff. Understanding the facts of these cases and arguments that led to different rulings can help avoid any potential bad faith claims when a carrier is adverse to a policyholder who has brought a UIM claim. The first case, Chevalier-Seawell v. Mangum, 90 Va. Cir. 420, is a decision from Norfolk Circuit Court that was issued by Judge Mary Jane Hall in April of 2015. In this case, defendant admitted liability for the collision; the plaintiff was claiming a traumatic brain injury; defendant’s insurance carrier had offered its full coverage of $100,000 (the stipulated special damages exceeded $63,000) and Allstate (the UIM carrier) had made absolutely no offer to settle the case at the time the bad faith motion was filed. Eventually, Allstate did make a settlement offer five days before trial, after Plaintiff had incurred additional expenses for trial. That initial offer was $50,000, increased to $55,000, and finally increased again the day before trial to $75,000. At trial, the jury returned a verdict to the plaintiff for $800,000.00. Counsel for Allstate argued that it did not owe any pre-judgment duties to the plaintiff. Pursuant to Va. Code § 38.2-2206, its sole duty is to “pay the insured all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits not less than the [legal requirement].” However, the court found that a UIM carrier is still subject to penalties...
by KPMLAW | Oct 17, 2015 | KPMBlog, News, Uncategorized
Written by Gary Reinhardt, Esq. With significant statutory changes looming, the Virginia Supreme Court expanded the reach of Underinsured Motorist coverage in the case of Bratton v. Selective Insurance, decided on September 17, 2015. In Bratton, the plaintiff’s decedent, a dump truck driver, was an employee of a paving subcontractor working on a highway asphalt project. The plaintiff’s decedent hauled hot asphalt to the job site and dumped the asphalt into the bucket of a front end loader. The dump truck driver’s job required him to periodically exit his dump truck to check for spillage of the asphalt. Given that the job was being done at night, as an additional safety measure, the superintendent for the paving subcontractor parked his pick-up truck with flashing lights and headlights illuminated at the start of the work zone. The pick-up truck was parked approximately 200 feet from where the dump truck stopped to unload asphalt. At the time of the accident, the decedent had exited the cab of his dump truck and was standing near the truck. He had been out of the truck for less than 30 seconds when two drunk drivers barreled past the superintendent’s pick-up truck and struck the front end loader. The decedent was found pinned between one of the drunk driver’s vehicles, the front end loader and the rear of the dump truck. He died as a result of his injuries. The plaintiff claimed that both the UIM policy of the dump truck and the UIM policy of the pick-up were available to the dump truck driver’s estate; the dump truck’s policy under the theory that the...
by KPMLAW | Jun 16, 2015 | KPMBlog, News, Uncategorized
Editor – Janeen B. Koch, Esquire Author – Danny Royce, Esquire The Virginia General Assembly has recently enacted several significant changes to two statutes pertaining to settlement of underinsured motorist claims and subrogation rights of underinsured motorist carriers. The revisions specifically impact Virginia Code Section 38.2-2206 and add a new statute at 8.01-66.1:1. According to the State Corporation Commission, the stated purpose of these changes is to expedite uninsured and underinsured motorist payments. These changes will go into effect for policies issued or renewed on or after January 1, 2016. In short, these changes impact both liability and underinsured motorist carriers in claims involving UIM coverage: The liability carrier can tender policy limits in exchange for a complete settlement and release of the defendant/tortfeasor and the liability carrier. Acceptance of the liability carrier’s limits by the injured party extinguishes the primary liability carrier’s duty to defend. This duty is extinguished upon payment of the liability limits (not merely acceptance of the offer). A settlement under these revisions extinguishes the UIM carrier’s right of subrogation against the underinsured defendant. Upon being released, the defendant/tortfeasor now has statutory duties to reasonably cooperate with the UIM carrier in its defense of the case. Changes to Virginia Code 38.2-2206 The statute governing uninsured and underinsured motorist coverage is found in Virginia Code Section 38.2-2206. Prior to this revision, the liability carrier was permitted to tender its limits in cases where the injured person had UIM coverage. However, such tender did not secure the release of the liability carrier or its insured. Significantly, the liability carrier retained the duty to defend its insured and...
