In January of 2013, the Court of Appeals of Kentucky decided a case that involved a car accident that involved an issue involving underinsured motorist (UIM). (See Bandy v. Bevins, 2013 WL 44027 (Ct. App. 2013)). The plaintiff in this Louisville personal injury car accident brought a lawsuit against the driver of the other car. The trial court that handled the personal injury case dismissed it on summary judgment. Id. So, the personal injury plaintiff filed her appeal.
The issue on appeal had to do with whether or not the UIM benefits were available to the plaintiff driver because the amount available was identical. Plaintiff’s car insurance UIM did not have to provide UIUM benefits because an identical amount was available under the wrongful party’s liability insurance benefits, requiring an offset under the plaintiff’s policy and Virginia law. Id. But, Plaintiff still hired a Personal Injury Attorney in Louisville.
The plaintiff in this Louisville personal injury case hurt her shoulder. She claimed that this damaged her ability to compete as a professional bowler. Id. The plaintiff claimed that the insurance on the wrongful car was not enough to compensate her for her injuries. Id. The UIM policy is a Virginia contract. The plaintiff had a Virginia driver’s license and the car was registered in Virginia.
Both policies had $100,000 for coverage. The UIM provider filed a motion for summary judgment because the UIM coverage it provided was identical to the liability coverage provided by the wrongful party’s insurance. So, the court looked at the policy language in the UIM policy. In it, it stated that a underinsured motor vehicle is available for payment when it is less than the sum of the limits of liability applicable to the insured for Uninsured Motorist Coverage under this policy or any other policy. With “available for payment” as used in this paragraph means the amount of liability coverage applicable to the claim of the insured as reduced by the payment of any other claims arising out of the same occurrence. Id The UIM policy also stated that “any damages payable under this coverage: shall be reduce by all sums paid because of bodily injury or property damage by or on behalf of persons or organizations who may be legally responsible.”
So, this court agreed that Virginia law applied. The test being “the most significant relationship test.” Though this Louisville personal injury car accident occurred in Kentucky, that is insufficient to require the application of Kentucky law. “In most cases, the law of the residence of the named insured will apply to determine the scope of the coverage.” (cites omitted). In this Louisville personal injury case the named insured reside in Virginia, the policy covers the Virginia vehicle, and she was a Virginia resident.
Next, as to the issue of whether or not the UIM applied, the court after looking at the UIM policy, the vehicle is not an underinsured motor vehicle and therefore the UIM was not available. Both policies in question were for the same amount, $100,000, thus since they both provided the same coverage, the UIM cannot be considered. Id. The Virginia law takes the ‘narrow view’ on this UIM issue.
“Under the narrow view, the insured’s UIM coverage is always setoff or reduced by the tortfeasor’s liability limits. The purpose of the narrow view is to place the insured in the same financial condition that he would be in if the tortfeasor had liability limits equal to the insured’s own UIM limits. Under the broad view, UIM coverage is triggered when the insured’s damages exceed the tortfeasor’s liability limits, at which point the insured is entitled, if damages require it, to receive the full amount of the UIM policy. The public policy under lying the broad view is to provide full recover to the injured party.” (cites omitted).
If you have been the subject of a Louisville personal injury case, please call and speak to a personal injury attorney in Louisville at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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