Make sure you know, in writing and with seeing declaration pages and copies of policies, the full amount of insurance for a claim. There may be more insurance or benefits that are not being told to you. In workers’ compensation claims, workers regularly resolve and/or do not pursue their lump-sum disability claim at the end of their case/treatment. After an employer pays temporary disability and wage loss damages, it must pay temporary or permanent total disability settlement. Do not settle your case without that recovery. Every employer with 5 or more employees must carry workers’ compensation insurance in Missouri and Illinois.

In auto crash cases, the negligent driver has to have car insurance under the law of each State. That should pay for your property damage and injuries to you and your passengers. These damages include medical bills, wage loss and pain and suffering and mental anguish. But you have insurance too, which will pay you all of this if the negligent driver does not have insurance. In addition, you probably have medical payment coverage which pays medical bills or co-pays regardless of fault. You also have Uninsured Motorist insurance coverage and may have Underinsured Motorist Coverage.

Uninsured Motorist Coverage

All auto insurance policies carry uninsured motorist coverage (in Missouri and Illinois) in the amount of $25,000. This provision means that if you, a family member or friend are injured in an automobile accident and the driver who was at fault did not have insurance and is uninsured, your insurance pays. This includes compensation for medical expenses, wage loss, pain and suffering, and emotional distress. Every policyholder has this coverage and it is the same as if the other driver actually did have insurance-but your insurance policy provides coverage for the other driver’s negligence.

Uninsured coverage applies in a wide variety of situations. If there is a hit and run or phantom driver, your uninsured coverage applies. If your car is struck by a driver who then drives away and you don’t know who it is, if you’re walking and you are struck as a pedestrian by another driver who leaves, or a circumstance where you do not know or cannot track down the identity of the phantom driver, you have an uninsured claim under your own policy to recover all your damages. More typically this coverage is used in cases where the driver who rear-ended you or pulled out and struck you or did not look when they changed lanes and struck your car does not have insurance. Also, they could have failed to pay their premium and their insurance was canceled even though they had an insurance card at the scene and you think they had insurance. Under these circumstances, you can recover under your uninsured policy.

Amount of uninsured coverage and stacking are two important areas. You may just have the minimum uninsured amount, or you may have bought higher uninsured coverage. We can figure this out for you, or you can call your insurance agent and find out yourself. Have them email you the terms of your policy or your declaration page. Sometimes insurance companies print this off on your insurance card. Many times insurance companies sell $50,000 uninsured policies so you may have that amount of coverage.

In addition, there is a legal idea called “stacking” insurance coverage. The law in Missouri is that you get to stack the minimum $25,000 uninsured from every vehicle you own under that same policy. This is because uninsured coverage is mandatory and the State of Missouri, both through statutes and court decisions, require that coverage. For example, if you are injured and your vehicle has $25,000 of uninsured coverage, but you also own two other vehicles that are insured on that policy, you will have $75,000 in uninsured coverage. Insurance companies will never tell you this and very often try to settle uninsured claims directly with their claimants without advising them about stacking.

I have had instances where a family with very large damages is contemplating a $25,000 settlement that is being pushed by an insurance company. Upon inquiry, we discovered that family had 3 additional cars and actually had $100,000 in coverage available. If you settle for the $25,000 and sign a release, you cannot go after the additional coverage. There are also unique circumstances if you are driving a company vehicle or are a pedestrian that provides you this coverage as well.

Make sure you get fully compensated for all damages regardless of whether you are pursuing an uninsured claim against your own insurance company. You should make sure you get all your medical treatment and reach your maximum medical improvement. Your claim should include all of your medical expenses, your wage loss damages, and all the pain you have gone through and the emotional distress you have experienced. You also should get your medical payment coverage in addition to your uninsured claim.

Underinsured Motorist Coverage

Although not mandatory, many automobile insurance policies contain coverage for when a negligent driver injures you or your family and that driver does not have enough insurance to cover all your damages. If your damages are $100,000 and the defendant driver who struck your car or hit you while you were walking only had $25,000 in insurance coverage, you are underinsured for $75,000. So, all insurance companies sell coverage to fill in this underinsured gap. To find out if you have underinsured coverage, look on your insurance card or call your insurance agent.

To make an underinsured claim, you first have to settle the claim with the main tortfeasor, or person who injured you and exhaust their coverage. So, if you are rear-ended by a negligent driver, you first have to resolve the claim against the person who rear-ended you. This means getting all of your medical care, reaching your maximum improvement, and making a claim against that driver.

Sometimes these cases will settle before suit, sometimes after you hire a lawyer and suit is filed. It is very important to note you have to get all of the money available from the negligent driver. If the negligent driver has $25,000 in insurance, and you settle that claim for $20,000 you cannot get underinsured coverage. You must completely exhaust all other available insurance before you can make a claim for underinsured coverage. So, under the previous example, you must settle the claim against the driver who rear-ended you for $25,000.

It is important that you first put your underinsured carrier on notice, and let them know that you have the claim, let them know that you are settling and resolving the case against the driver who hit you, and make sure they do not object. Then, your claim is ripe against your underinsured carrier. This does not mean that you cannot let them know early on about the claim, you should notify them when you file. This should be done in writing, and they will give you a claim number.

Very often insurance companies will not tell you that you have underinsured coverage or tell you how to make that claim. Often they will have separate claims adjustors and separate departments for underinsured coverage. They do this for a reason: to make it harder to make an underinsured claim. The adjustor for your property damage and your medical payment coverage will not tell you that you have a possible uninsured claim or a possible underinsured claim. Rather, you must press the issue. As a lawyer, I even have to pursue these vigorously.

I recently made a clear underinsured claim and had adjustors calling me asking me if I was really trying to settle a property damage claim, or get medical payment coverage or what exactly I was writing about. They knew and it was perfectly clear-but by putting up obstacles they decrease their payouts and improve their profits. Make sure that when you file an underinsured claim that you do so clearly, in writing and that the insurance company assigns you an underinsured claims adjustor separate from any property or med pay adjustor. Communicate with that adjustor about the status of the claim and advise that adjustor when you are about to settle and resolve the claim against the defendant who was negligent.

With underinsured coverage, there are “set off” and other issues so it is sometimes difficult to determine the exact amount of coverage. Underinsured policies are often written to say that they get a “set off” or credit for the amount you recovered from the underlying insurance of the person who injured you. This is actually a misrepresentation on the part of the insurance company that is regularly done.

For example, you buy $100,000 in underinsured coverage and it is promised as such, and you pay the premiums on that. What you do not know is that it really only offers $75,000 in coverage. Why? Assume that you are injured by a negligent driver and your damages are $500,000 (because you herniated a disc in your neck, had to have neck surgery, have permanent pain and problems for that, need lifelong medical treatment and there are significant wage loss damages). You sue the driver who rear-ended you and caused this accident and you settled the claim for his insurance policy limits of $25,000. Now you go to your underinsured carrier and may a demand for the $100,000. They will say that under a part of your policy the amount that you got from the driver who rear-ended you is credited against the policy limits of your underinsured coverage so you can only get $75,000. If the driver who rear-ended you had $100,000 and you settle and resolve that claim for that full $100,000, you can make no underinsured claim. The amount to be credited against the coverage is equal to the amount of insurance.

Many polices try to limit underinsured coverage. For instance, if the driver did not have any insurance, then it is an uninsured claim not underinsured. If you do not get all of the money in a settlement from the underinsured driver who hit you or if you do not communicate to your insurance company, they may find grounds to deny your claim.

Many times insurance companies will decline coverage and say there is no coverage, or that they will not pay a loss, with strained and inaccurate readings of the insurance policy. Make sure that you get a lawyer or someone to review these insurance policies. Do not take the insurance company’s word for this, even though you are their insured, they are not on your side and they are actively working to decrease your recovery as much as they can.

It is just the way insurance companies operate. They will wrongly read their policies, they will misinterpret policies, they will ambiguously word policies on purpose to give them wiggle room, and employ lots of other tactics to decrease the amount they have to pay out to claimants, including their own insured customers. They do not owe a fiduciary duty to their insured clients, even if you think they should.

Note that in Illinois, underinsured motorist coverage claims are arbitrated and you don’t have the right to file a suit in court. In Missouri, those arbitration provisions are not enforced. Arbitration in Illinois fosters quicker resolution of these claims. But the downside is that you do not have the right to a jury trial and it can and does lead to insurance company abuse.