QUESTION:
My client is in a friend’s car. The friend causes an accident with a truck. The truck is also partially at fault. Friend’s policy limit of $15,000 was offered and truck offers $45,000. The client has UIM of $100,000. Can I make UIM claim here ($40,000) even though policy limits of truck are not exhausted? Ins. Code 11580.2 (p) 3&4 seem to apply but they seem to contradict each other.
ANSWER:
The insured’s right to under-insurance benefits does not accrue until after he or she exhausts the tortfeasor’s policy limits (Ins.C. § 11580.2(p). In the case of Farmers Ins. Exch. v. Hurley (1999) (76 CA4th 797, 799–804, 90 CR2d 697, 698–702)—insured who stipulated with tortfeasor’s carrier that $15,000 policy limits judgment would be satisfied by $5,000 paid within 2 months not entitled to UM benefits despite insured’s willingness to credit UM insurer $15,000 (tortfeasor’s policy not “exhausted”).
In your case,in order for you to obtain under-insurance benefits, you have to exhaust the policy limit of your tortfeasor who is the owner or driver of the truck, and that would be for the amount of $45,000. I suggest that you seek personal assistance from a lawyer to guide you more with the procedure in filing your claim.
