The Insurance Research Council (IRC) reports that roughly 10% of Virginia drivers are uninsured.
Given that the Virginia Department of Motor Vehicles (DMV) serves more than 5 million licensed drivers, you are sharing the highways and roads with several hundred thousand uninsured motorists. And many more who are underinsured, meaning they do not have enough insurance coverage or assets to cover all of the losses you may suffer in a car crash.
Being hit and injured by an uninsured or underinsured motorist can cause problems for you. But you have options.
The purpose of this article is to explain your options if you are struck by an uninsured or underinsured motorist who does not have adequate insurance coverage or funds to cover your injuries and losses. And to help you pursue the right option to recover for losses suffered in your motor vehicle accident.
Keep reading to learn more about uninsured and underinsured motorist claims in Virginia. Then call me for a free consultation: 804-251-1620 or 757-810-5614. As a Richmond car accident lawyer and Virginia Beach auto accident attorney, I’ve helped many car crash victims determine the fair value of their personal injury claim and negotiate top-dollar motor vehicle accident settlements. And I’m ready to help you.
The Commonwealth of Virginia has a financial responsibility law regarding auto insurance. It requires a driver to show that he can pay for damages resulting from motor vehicles that he owns or operates.
There are two ways to satisfy this financial responsibility law.
First a driver satisfies the law by certifying that he is covered by an insurance policy when registering a vehicle. And that the insurance policy has the following minimum limits of liability:
Second a driver satisfies the financial responsibility law if he pays the Virginia Uninsured Motor Vehicle (UMV) fee to the Department of Motor Vehicles. The fee is $500.00. It does not provide insurance coverage and is valid for twelve months.
Paying the Uninsured Motor Vehicle fee does not protect an uninsured driver in litigation. The driver’s home, wages, and other assets may be taken to pay valid claims under tort law.
Allowing uninsured drivers to operate motor vehicles if they pay $500 causes significant financial problems for persons injured in car crashes caused by these drivers. If you are unable – or unwilling – to purchase auto insurance, you probably don’t have enough assets to cover losses suffered in a serious auto accident.
Unfortunately this is the law we have.
Auto liability insurance coverage protects an insured driver from liability for the driver’s own negligence.
Uninsured motorist coverage and underinsured motorist coverage, on the other hand, protect an insured driver who suffers injuries and damages because of a financially irresponsible driver’s negligence.
A financially irresponsible driver is someone who:
Recognizing the problems that arise from bodily injuries caused by automobile drivers who are financially irresponsible, uninsured, or underinsured, the Virginia General Assembly enacted the uninsured motorist statute, Virginia Code Section 38.2-2206.
As the Supreme Court of Virginia noted, uninsured motorist coverage is meant to give insured drivers, resident members of the insured’s family, permissive users of the insured’s automobile, and guests in the motor vehicle who are injured by an uninsured or underinsured motorist the same protection they would have had if they were injured by a driver who carried auto liability insurance.
Because of this purpose Virginia’s uninsured motorist statute is construed liberally in favor of finding insurance coverage and protection for accident victim’s who qualify.
Virginia law requires the auto insurance policy to contain uninsured motorist insurance coverage that is at least equal to the state minimum policy limits of $25,000.00. Underinsured motorist coverage is also mandatory.
These requirements are set forth in Virginia Code Section 38.2–2206(A), which states:
No policy or contract of bodily injury or property damage liability insurance relating to the ownership, maintenance, or use of a motor vehicle shall be issued or delivered in this Commonwealth to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this Commonwealth upon any motor vehicle principally garaged or used in this Commonwealth unless it contains an endorsement or provisions undertaking 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 requirements of Code Section 46.2-472.
There are, however, some exceptions to the uninsured motorist coverage requirement. For example an insurance company issuing excess or umbrella coverage or coverage that is not specific to an insured motor vehicle is not required to offer uninsured or underinsured motorist coverage.
The Virginia Code defines an uninsured motor vehicle as a motor vehicle for which:
Under the Virginia Code an underinsured motor vehicle is one that:
when, and to the extent that, the total amount of bodily injury and property damage coverage applicable to the operation or use of the motor vehicle and available for payment for such bodily injury or property damage … is less than the total amount of uninsured motorist coverage afforded any person injured as a result of the operation or use of the vehicle.
The term “available for payment” means:
the amount of liability insurance coverage applicable to the claim of the injured person for bodily injury or property damage reduced by the payment of any other claims arising out of the same occurrence.
A person is an underinsured motorist if he or she carries at least the minimum limits of liability coverage required by law, but does not carry enough coverage to cover all the losses resulting from the accident.
When an insured driver strikes you and causes damages, you file a claim with the negligent driver’s auto insurance carrier.
You then try to negotiate a settlement with the at fault driver’s insurance carrier.
If you are unable to negotiate a fair settlement, you go to trial.
If, however, the negligent driver is unknown, uninsured, or underinsured, you must evaluate all of your legal options.
These options include:
It’s possible to pursue two or more of these legal options at the same time. For example you can pursue both an uninsured motorist claim and a workers compensation claim together.
If you’ve decided to file an uninsured motorist claim in Virginia, take the following steps.
Step 1: Report the Accident to Your Uninsured Motorist/Underinsured Motorist Insurance Carrier
If you are hit by an unknown or uninsured driver, report the auto accident to both your insurance company and law enforcement right away. This is important in all types of claims, especially those involving unknown drivers.
Virginia Code Section 38.2-2206(D) states:
[i]f the owner or operator of any motor vehicle that causes bodily injury or property damage to the insured is unknown, and if … there has been no contact between that motor vehicle and the motor vehicle occupied by the insured, or where there has been no contact with the person of the insured if the insured was not occupying a motor vehicle, then for the insured to recover under the [uninsured motorist] endorsement …, the accident shall be reported promptly to either (i) the insurer or (ii) a law enforcement officer having jurisdiction … [where] the accident occurred. If it is not reasonably practicable to make the report promptly, the report shall be made as soon as reasonably practicable under the circumstances.
Step Two: File a Lawsuit Against the Other Driver and Serve the Lawsuit on the Uninsured or Underinsured Motorist Insurance Carrier
To recover uninsured motorist or underinsured motorist benefits after an accident where the at fault driver is known, you must file a lawsuit against the driver or the owner of the vehicle and serve a copy of the lawsuit on the uninsured or underinsured motorist carrier. This requirement is mandatory.
If the identity of the at fault driver or vehicle owner is unknown, you must file suit against “John Doe.” Virginia Code Section 38.2-2206(E) states:
[i]f the owner or operator of any vehicle causing injury or damages is unknown, an action may be instituted against the unknown defendant as “John Doe” and service of process may be made by delivering a copy of the motion for judgment or other pleadings to the clerk of the court in which the action is brought. Service upon the insurer issuing the policy shall be made as prescribed by law as though the insurer were a party defendant …
As you can see, perfecting service on the uninsured motorist carrier is mandatory in this situation as well. Simply mailing a copy of the lawsuit to the insurance carrier is insufficient unless the insurance carrier has waived service. Even if the carrier is aware of the accident.
You may file an uninsured motorist action in any venue that would be appropriate for a regular negligence action. The uninsured motorist carrier cannot require you to file suit in a venue of its choosing.
Step Three: Obtain a Judgment Against The Other Driver
To recover uninsured motorist benefits you should obtain a legal judgment against the other driver.
Both the uninsured or underinsured driver and your uninsured motorist insurance carrier may hire independent legal counsel to fight the claim.
The uninsured motorist insurance carrier must pay you “all sums” that you are legally entitled to recover as damages from the owner or driver of an uninsured motor vehicle, up to the limits of the policy.
The entry of a legal judgment against the uninsured driver establishes that the driver is liable to you and triggers the uninsured motorist carrier’s liability to you.
To avoid having to pay damages, the uninsured motorist carrier may participate in the lawsuit and file defensive pleadings. The Virginia Code states that the uninsured motorist insurance company has “the right to file pleadings and take other action allowable by law in the name of the owner or operator of the uninsured or underinsured motor vehicle or in its own name” after you file suit. This may include hiring counsel, participating in discovery, filing and arguing against motions, examining and cross-examining witnesses, presenting argument at trial, and filing appeals.
In other words, an adversarial relationship arises between you and the uninsured motorist carrier when you make a claim.
The personal injury statute of limitations for filing a lawsuit against an unknown, uninsured, or underinsured driver is two years from the date of the accident.
But the statute of limitations for filing a lawsuit against an uninsured motorist insurance carrier that refuses to settle or pay all sums owed is treated as a breach of contract. As such the three-year or five-year statute of limitations governing breach of contract actions in Virginia applies.
You may stack uninsured motorist coverages on separate policies. But you cannot multiple coverages on the same policy if the policy language excludes it.
As a Richmond injury attorney and Newport News personal injury lawyer, I’m committed to helping injured drivers and passengers throughout Virginia when they are harmed by someone else’s negligence.
If you’ve suffered a traumatic brain injury, spinal cord injury, or back injury, call me for a free consultation: 804-251-1260 or 757-810-5614. I’ll review the facts of your case and examine all insurance policies that may provide coverage. Then I’ll fight to help you get every penny you’re owed by filing a UM/UIM claim.