QUESTION:
If you are making an under-insured motorist claim and there are two parties at fault, do you have to get policy limits from both parties before you can make your UIM claim?
ANSWER:
It would be important to get the policy limits of each party at fault because the Under-insured Motorist Coverage is triggered only if the tortfeasor’s (other driver’s) policy limits are less than claimant’s policy limits [Ins.C. §11580.2(p)(2)]. Thus, claimants are not entitled to under-insured motorist policy benefits where the tortfeasor has the same or higher policy limits. [Lopez v. Allstate Ins.Co. (1993) 14 CA4th 1835, 18 CR2d 463; Royal Ins. Co. v. Cole (1993) 13 CA4th880, 884–889, 16 CR2d 660, 663–666; Fagundes v. American Int’l Adjustment Co.(1992) 2 CA4th 1310, 3 CR2d 763; see Hartford Fire Ins. Co. v. Macri (1992) 4 C4th318, 328, 14 CR2d 813, 818] [7:286.3]. This rule applies even if claimant receives less in proceeds than the tortfeasor’s policy limits(as may occur where insurance proceeds are spread among several injured persons or disproportionately allocated to persons who suffered more serious injuries). The purpose of underinsurance coverage is not to guaranty claimant a minimum damages recovery but, rather, to place claimant in the position he or she would have been in had the tortfeasor motorist possessed liability coverage equal to claimant’s. [Lopez v. Allstate Ins. Co., supra; Schwieterman v. Mercury Cas. Co. (1991) 229 CA3d 1044, 1048, 280 CR 804, 806; see Explorer Ins. Co. v.Gonzalez (2008) 164 CA4th 1258, 1263–1264, 79 CR3d 893, 897–898] [7:286.3].
Furthermore, unless and until a lawsuit is filed, insurers may not divulge policy limits without the insured’s consent (see ¶ 6:141 ff.). However, insurers can usually be persuaded to obtain the insured’s consent to furnish this information. I suggest that you seek personal assistance from a lawyer to guide you more with the procedure in filing your claim.