Originally published by William K. Berenson.
After a car wreck, there are various ways that a Texan can recover his damages.
In addition to filing on health insurance, workers compensation, disability, Medicare, and Medicaid benefits, he can also attempt to collect from these sources:
- the at-fault driver’s or the vehicle owner’s car insurance company;
- the underinsured motorist (UIM) policy that he, the driver (if he is a passenger), or the vehicle owner purchased. This happens if the money offered is not sufficient to compensate him for his damages.
- the uninsured motorist (UM) policy he, the driver, or the vehicle owner purchased. This happens when the at-fault driver is not covered by liability insurance or is unknown, as in a hit and run.
- the personal injury protection (PIP) benefits on his, the driver’s, or the owner’s policy; and/or
- the at-fault driver if he has sufficient assets that exceed his insurance coverage. This is rarely, if ever, the case.
In a larger damage crash, multiple insurance company, adjusters, and attorneys will be involved. The process can be confusing and daunting. The services of a good personal injury lawyer are recommended.
The background of the new case
The Eastland court of appeals just handed down a decision that clarifies the interplay between available insurance policies. The key question considered was the maximum recovery that a claimant was legally entitled to receive under the Texas Insurance Code, Section 1952.106.
That statute provides that “underinsured motorist coverage must provide for payment to the insured of all amounts that the insured is legally entitled to recover as damages from owners or operators of underinsured motor vehicles because of bodily injury or property damage.”
Mr. Elwess’s vehicle was crashed into so forcefully by Mr. Molina’s truck that it flipped over. Hanging by his seat belt, Elwess injured his shoulder and had to undergo a rotator cuff surgery. Elwess received the full policy limits of $25,000.00 per person from the liability policy for Molina’s employer, which owned the truck. Molina was an uninsured driver. The policy limit was raised from $25,000 per person to $30,000 per person in Texas in 2011, so the crash happened before that.
The plaintiff then filed for additional compensation from the UIM policy held by his employer which owned the truck. He obtained an additional $70,000.00 for UIM benefits and the policy limit of $2,505.00 in PIP benefits. All told, his damages recovery was $97,505.00.
The lawsuit and appeal
When his claim for additional coverage for UIM coverage was denied, he sued for additional benefits he claimed were due under two $50,000.00 UIM policies. The trial court ruled against him and he appealed.
The appellate court found that the “other insurance” clause in the policies of the defendant companies prevented him from receiving underinsured motorists benefits.
The clause, which is standard in Texas automobile liability policies, states:
OTHER INSURANCE
If there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our Limit of Liability bears to the total of all applicable limits. However, any insurance we provide with a respect to a vehicle you do not own shall be excess over any other collectible insurance.
Past Supreme Court decisions
The plaintiff argued that this clause had been invalidated by the Supreme Court in two decisions. However the appellate court held that the first one, American Liberty Insurance Company v. Ranzau, was limited to situations where the claimant would only receive the state’s minimum policy limits, unlike the facts in this case.
The court found that the landmark case of Strainer v. United Services Automobile Association only controlled if the plaintiff would be prevented from recovering his actual damages, again not happened here. He stipulated that his damages were only $77,505.00.
The case is Elwess v. Texas Farm Bureau Mutual Insurance Company, 11-15-00286-CV.
Related post:
What Should You Do If You Are Crashed Into By Uninsured Driver?
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
from Texas Bar Today http://ift.tt/2rfCxlb
via Abogado Aly Website
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