by tim53nel » Wed Nov 19, 2008 08:56 pm
My wife was injured as a passenger in Driver 1's vehicle. Driver 2 broadsided vehicle 1, Driver 2 clearly at fault. My wife has approx. 50k in medical expenses to date, and approx. 50k in estimated future expenses (a second shoulder surgery, rehab, etc.). Driver 2's insurer has offered 100k, full policy limits to settle. We have UIM coverage of 100k on 2 vehicles, and Driver 1 has 250k UIM coverage. From info I've read on UIM claims, it appears we need to obtain approval from our insurer and Driver 1's insurer to accept the 100k offer, and their waiver of subrogation, before we can pursue a UIM claim under our policy and Driver 1's policy. Can anyone provide a sample demand letter for this situation? What do we do if either insurer refuse to approve settlement with tortfeasor's insurer, or refuse to waive subrogation?
Posted: Wed Nov 19, 2008 11:43 pm Post Subject:
That is correct. You personally do not waive the subrogation, the UIM carriers do. Those carriers need to know that you are filing a UIM claim. Supply them with the tender letter from the BI carrier. They will run an assets check on the at fault party, determine that he has no assets worth obtaining, and then supply the BI carrier with the waiver.
In most states if the UIM carrier does not waive their right of recovery, they then need to pay the BI limits to the injured person. So in this case, the UIM carrier(s) would need to pay your wife $100k in order to preserve their right of recovery against the at-fault party.
Posted: Thu Nov 20, 2008 06:56 am Post Subject:
Why would you like to enforce the ‘waiver of subrogation' clause?
Tcope, what I understand that the waiver of subrogation will restrict the OPs insurer to pursue the claim from the at-fault driver's insurance, since the insurer's rights aren't greater than the insured's rights. How would the OP be benefited from this clause?
I'm confused :?
Posted: Thu Nov 20, 2008 07:36 am Post Subject:
How would the OP be benefited from this clause?
I'm not sure what your asking.Working backwards.... the UIMBI carrier could assume the OP's right of recovery against the at-fault driver. The at-fault person's carrier needs to protect their at-fault insured so they need a release from the OP. That is why the OP's UIMBI carrier has a provision in the UIMBI coverage stating that the OP cannot settle with the BI carrier without their permission. Perhaps the UIMBI carrier wants to preserve their right to pursue recovery directly against the at-fault driver. But this would bare the OP from collecting the BI money. Not good. So state law usually (always?) states that the UIMBI carrier needs to either pay the BI limits to protect their right of recovery or wave that right of recovery so that the BI carrier can obtain a release and issue payment to the OP.
The only "waiver of subrogation' clause in the UIMBI portion of the policy is the one that states the insured cannot waive right of recovery against the BI carrier... as this would be waiving the UIMBI carriers right of recovery.
Usually what happens is the BI carrier should _tender_ the BI limits on the condition that a release is signed and the UIMBI carrier sends a waiver of subrogation. But there is no requirement for the BI carrier to obtain the waiver from the UIMBI carrier... it's just a smart thing to do.
Posted: Thu Nov 20, 2008 10:49 am Post Subject:
But there is no requirement for the BI carrier to obtain the waiver from the UIMBI carrier... it's just a smart thing to do.
if they are doing their job it's the smart thing to do, and protect themselves from a bad faith action by their insured for failure to protect their insured...but the injured party needs that release to collect on UIM...complicated, but not really....OP do you need this release from your carrier and/or the carrier that insures the vehicle your wife was in?
Posted: Thu Nov 20, 2008 11:44 am Post Subject:
Tcope, thanks a ton for this clarification. I got completely lost at the beginning. Thanks again for saving me from the drowning :wink:
Posted: Thu Nov 20, 2008 03:55 pm Post Subject:
if they are doing their job it's the smart thing to do, and protect themselves from a bad faith action by their insured for failure to protect their insured
But look at it this way... if they secure a release, there insured is protected. I think the only problem that could happen in not securing the waiver is that the UIMBI carrier may exclude UIMBI coverage if they can show that they would not have waived their right of recovery (if they would have... 99.99999% of the time... then they would not be able to apply that exclusion for their insured settling without their permission). I'm thinking if the UIMBI carrier denied UIMBI then perhaps there is a possibility that a court may be willing to negate the BI release (done under the argument that the BI carrier knew about the UIMBI policy and took advantage of the injured party in getting the release without notifying the UIMBI carrier). I can't think of any other reason why the BI carrier should get the waiver... I don't know of any law that requires it.Posted: Thu Dec 11, 2008 07:11 am Post Subject: Hire an attorney
This is why an attorney is needed. If you do not do it correctly you could lose out.
Posted: Thu Dec 11, 2008 07:19 am Post Subject:
This is why an attorney is needed. If you do not do it correctly you could lose out.
You really don't understand any of this, do you.Add your comment