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Judge and Gavel
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  • Richard L. Duquette

Bicyclists Can Recover Justice from an Uninsured or Underinsured Motorist

I’ve previously written about the need to obtain strong insurance coverage, especially Uninsured/Underinsured Motorist coverage. See my article here.

This is in case the bad guy that hits you is either uninsured or underinsured. I’ve advised to get a 500k liability policy backed up with a 500k UM/UIM motorist policy provision with a two million UM/UIM umbrella policy provision.

Now the question is why do you need a lawyer to handle these types of cases? There are a lot of pitfalls in handling such a case alone. Here are a few.

First of all, if the underlying liability (i.e. the bad guy’s) insurance coverage is limited, it’s important to fully “exhaust” this underlying policy in order to trigger the larger UM/UIM case.

If you fail to fully exhaust the underlying liability policy, then you may be precluded from reaching the large UM/UIM policy. This includes pending workers’ compensation remedies. This means if you settle for one dollar less than the policy limits, you’ve lost your UIM claim.

Insurance defense lawyers write releases for a living, and they’re very good at it. There are a lot of different provisions that a clever lawyer can slip into a release that will preclude further claims. So it’s very important to have an attorney negotiate your settlement so that you don’t waive future claims.

One of the reasons for the exhaustion rule is that the insurance companies obtain a credit from any prior liability payment, as an offset against your UM/UIM award. So, they want the reduction to save money.

One other pitfall is that when you do settle the underlying case to get to the UM/UIM policy, it’s important to exempt the specific UM/UIM policy from the underlying release from the insurance company so you don’t end up releasing the UM/UIM carrier as a part and parcel of the first release “of all claims” language. I recently was asked by an arbitrator if we exempted the UM/UIM policy in a release, before we went into arbitration which ultimately produced a large award. So, this is a known pitfall.

There are other preliminary issues as well, like proving a UM/UIM case. There are legal ways that this must be done. Since the plaintiff bicyclist has the burden of proof, it must be proved the case warrants a UM/UIM proceeding.

Moreover, some insurance companies stall, so your lawyer may have to compel arbitration. If a lawsuit was filed in the underlying matter, it’s important to reserve your right to arbitration so as to not waive it by litigating.

Of course, there is the discovery process and other procedures that must be conducted to establish your case, like depositions of the defense witnesses and experts.

During the case, a CCP §998 offer of compromise can be made to force the insurance company to seriously weigh the bicyclists settlement offer against the costs of litigation.

Generally, If the insurance company fails to accept a CCP §998 offer and the plaintiff bicyclist beats his/her reasonable settlement offer, then he/she can recover certain costs. I recently obtained $19k in post-verdict costs on top of the great arbitration award for an injured bicyclist.

This CCP §998 procedure adds to the bicyclists negotiating power and helps settle cases, because it forces the insurance company to be reasonable and take a settlement seriously, or face additional consequences. However, it applies equally against the bicyclist who when confronted with this strategy must evaluate settlement too.

If you’re injured, hire an experienced trial attorney.

Ride Safe, Ride Strong! * 760-730-0500

©Richard L. Duquette, Esq. All rights reserved April 25, 2017


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