Holcomb Dunbar - North Mississippi Attorneys

Insurance Law From A to Z Series – Uninsured and Underinsured Motorists

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Uninsured/Underinsured Motorist

UM Statute

Mississippi law does not treat uninsured motorists (UM) claims separately from underinsured motorist (UIM) claims.  The statute merely defines an uninsured motorist to include the underinsured motorist.

Mississippi’s UM statute, incorporated into every policy, does not speak to accidents or negligence, but only provides that it covers “all sums which the insured is entitled to recover as damages . . . .”  Miss. Code Ann. § 83-11-101.  The Automobile Insurance Law and Practice treatise states that the purpose is to protect innocent insureds that are injured “as a result of the negligence of” financially irresponsible drivers.  See also, Harthcock v. State Farm Mut. Auto. Ins. Co., 248 So. 2d 456 (Miss. 1971).  While the UM statute does not clearly describe what constitutes an insured event, UM endorsements commonly contain a coverage provision which requires that the insured’s injuries or damages be caused by an “accident.”

Further, UM coverage must arise out of the “ownership, maintenance or use” of an uninsured vehicle.  Spradlin v. State Farm Mut. Auto. Ins. Co., 650 So. 2d 1383 (Miss. 1995).

The UM statute does not mandate coverage for punitive damages that might be assessed against an uninsured motorist.  State Farm Mut. Auto. Ins. Co. v. Daughdrill, 474 So. 2d 1048 (Miss. 1985).  Policy language excluding punitive damages is permitted.

Caveat: The statute does not prevent an insurer from providing greater coverage than required.  Thus, it is very important to always review both the statute and the policy.

Uninsured Motor Vehicle Definition

Miss Code Ann. § 83-11-103 defines an “uninsured motor vehicle” to mean:

(1) a motor vehicle as to which there is no bodily injury liability insurance; or

(2) a motor vehicle with liability insurance, but the insurance company has legally denied coverage or is unable, because of being insolvent at the time of or becoming insolvent during the 12 months following the accident, to make payment with respect to the legal liability of its insured; or

(3) an insured motor vehicle, when the liability insurer of such vehicle has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage; or

(4) a motor vehicle as to which there is no bond or deposit of cash or securities in lieu of such bodily injury and property damage liability insurance or other compliance with the state financial responsibility law, or where there is such bond or deposit of cash or securities, but such bond or deposit is less than the legal liability of the injuring party; or

(5) a motor vehicle of which the owner or operator is unknown; provided that in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured; or

(6) a motor vehicle owned or operated by a person protected by immunity under the Mississippi Tort Claims Act, if the insured has exhausted all administrative remedies.

No vehicle owned by the United States government and against which a claim may be made under the Federal Tort Claims Act, is considered uninsured.

Bodily Injury Definition

Miss. Code Ann. § 83-11-102 defines “bodily injury” simply by saying that it includes death resulting from such injury.  This term has received little attention for the Mississippi Supreme Court.  See Miss. Ins. Law and Prac. § 16:28 (citing E.E.O.C. v. Southern Pub. Co., Inc., 894 F.2d 785 (5th Cir. 1990) (noting the Mississippi Supreme Court has not defined bodily injury)).

Evaluating UIM Coverage (triggering the UIM claim)

In determining whether a tortfeasor is properly considered to be an underinsured motorist with regard to a particular insured, the limits of the tortfeasor’s liability should be compared to the stacked total of UM benefits applicable to the insured.  In short, compare the liability limits to the stacked UM limitsCossitt v. Federated Guar. Mut. Ins. Co., 541 So. 2d 436 (Miss. 1989).  It does not matter that a particular insured does not recover the full liability limits to determine coverage for UM.  The statute only requires comparing limits to limits.  For a UM claim to be valid, for policies following the Mississippi statute, the UM limits (stacked) must exceed the liability limits.  If they are equal or less than then liability limits, there is no UM claim.  Again, the fact that an insured may not actually receive the limits does not matter.  It is a limits to limits only analysis.  If a UM claim is triggered via the limits-to-limits analysis, you then determine how much UM is available under other rules, discussed below.  Miss. Code Ann. § 83-11-101 et seq.

Offsets and Exhaustion

Different from determining if UM coverage exits, the UM carrier has the right to offset liability coverage payments.  If provided for in its policy, the UM insured’s carrier may only validly offset the amount of UM benefits available to the insured by the amount of liability benefits “actually received” by the UM insured.  In this context, “actually received” has been defined as those amounts that are either tendered by the tortfeasor’s liability carrier or otherwise available to the UM insured.  Fidelity & Guaranty Underwriters, Inc. v. Earnest, 585, 591-92 (Miss.1997).  Therefore, if multiple claimants are involved and an insured does not receive the full limits available to him, the carrier can only offset those amounts received or that he could have actually received.

Exhaustion: An insured has the right to elect to pursue a claim directly against his UM carrier and forego the right to seek damages against the tortfeasor (and liability carrier).  In such situations, the UM carrier does not have an offset, and must advance the total UM limits (if otherwise appropriate) and force the UM carrier to seek subrogation from the tortfeasor.  In other words, it has been held that a UM insured is not required to exhaust the limits of the tortfeasor’s liability before he can collect against his UM carrier.  Harthcock v. State Farm Mut. Auto. Ins. Co., 248 So. 2d 456, 461-62 (Miss. 1971).  But see Robinette v. American Liberty Ins. Co., 720 F. Supp. 577 (S.D. Miss. 1989).

Priority:  “Primary First” – It has been noted that the primary insurer has the right to offset its UM limits first. Dixie Ins. Co. v. State Farm Auto. Ins. Co., 614 So. 2d 918 (Miss. 1992).  Check policy language to determine applicability.  See Primary/Excess Issues.

An insurer may not offset MedPay payments to the insured against UM coverage limits.  Prudential Prop. & Cas. Ins. Co. v. Mohrman, 828 F. Supp 432, 438 (S.D. Miss. 1993).

An insurer may not offset Workers Compensation payments to the insured against UM coverage limits.  Nationwide Mut. Ins. Co. v. Garriga, 636 So. 2d 658 (Miss. 1994).

Workers Compensations liens do not apply to UM proceeds.  Miss. Ins. Guaranty Assoc. v. Blakeney, 51 So. 23 208 (Miss. App. 2009). Accordingly, a carrier does not need to seek approval from a court or workers compensation commission in order to pay UM proceeds.

Written Rejection/Minimum Coverage

Unless the insured rejects the coverage in writing, the policy must provide minimum UM coverage of at least 25,000/50,000/25,000.  See Miss. Code Ann. §§ 83-11-101(1) and (2); 63-15-3.

The statute explains that “any insured named in the policy” can reject the coverage in writing. Miss. Code Ann. § 83‑11‑103(2).  A statutorily required waiver of UM coverage can be obtained only from a fully informed insured.  In other words, the waiver must be knowing and intelligent, meaning that the insured was “reasonably knowledgeable and informed of the costs and benefits of such UM coverage prior to signing the waiver.”  Owens v. Mississippi Farm Bureau Cas. Ins. Co., 910 So.2d 1065, 1074 (Miss. 2005).   The burden is on the carrier to demonstrate that a waiver was knowingly and intelligently made.  Honeycutt v. Coleman, No. 2010-CT-01470-SCT (Miss. May 30, 2013).  This can be accomplished by proof that an appropriate explanation of the ramifications of rejecting UM coverage was provided to the insured, or that the insured was a sophisticated purchaser of insurance or was otherwise informed.  The Mississippi Supreme Court recently explained that in most cases if an insured denies he was fully informed of his UM rights, it will create a jury question.

There is no requirement of a written rejection of UM coverage above the minimum amount, and there is no duty on an agent to provide an explanation of such optional coverages.  Owens v. Mississippi Farm Bureau Cas. Ins. Co., 910 So.2d 1065, 1074 (Miss. 2005).

The statute does not require that the written rejection be maintained.  In other words, the mere fact that a carrier cannot produce the written rejection does not automatically create a violation of the statute.  The carrier is free to provide affidavits or other circumstantial evidence that an insured at one time had signed a written rejection of coverage, and it is up to the insured to present proof to the contrary.  Travelers v. Stokes, 838 So. 2d 270 (Miss. 2003).

Election of Remedies

If insured sued another tortfeasor, who was not an uninsured motorist, and obtained judgment for less than he sought, he cannot then claim that a different tortfeasor, who is uninsured, was actually the cause of his injuries.  He is precluded from pursuing a UM claim.  Carson v. Colonial Ins. Co., 724 F. Supp 1225 (S.D. Miss. 1989).

Exclusions

“Named driver” and “owned vehicle” exclusions have been found to be in conflict with the UM Act and are void and unenforceable.  Lowery v. State Farm Mut. Auto. Ins. Co., 285 So. 2d 767 (Miss. 1973) (owned vehicle); Atlanta Cas. Co. v. Payne, 603 So. 2d 343, 348 (Miss. 1992) (named driver).

The exclusivity provision in the Worker’s Compensation statute completely bars an employee from recovering UM benefits from his personal insurer when injured by a co-employee.  Wachtler v. State Farm Mut. Auto. Ins. Co., 835 So. 2d 23, 28 (Miss. 2003).

Property Damage Deductible

The UMPD deductible is $200.  Miss. Code Ann. § 83-11-101.

Stacking

UM stacking is permitted for “Class I” insureds (named insureds and resident relatives), generally, and more limited for “Class II” (permissive drivers and guest passengers).  Meyers v. American States Ins. Co., 914 So. 2d 669, 674 (Miss. 2005).  Class II insureds can only stack the accident vehicles’ coverage with any of his or her own personal coverage (i.e. other coverage he or she qualifies as an “insured” on).  A Class II insured does not have the right to stack an employer’s uninsured motorist coverage unless policy language provides otherwise.  Deaton v. Mississippi Farm Bureau Cas. Ins. Co., 994 So. 164, 167 (Miss. 2008).  Anti-stacking provisions in policies are void.

Hit and Run

A UM policy may include the requirement that actual “physical contact” occur between the insured and an unidentified motor vehicle.

An object that is simply thrown or tossed from one vehicle and hits the insured’s vehicle has been held not to meet the physical contact requirement as the insured vehicle was neither hit by the unknown vehicle nor was any object struck by that vehicle propelling it into the insured’s vehicle.  See Aetna Cas. & Sur. Co. v. Head, 240 So. 2d 280 (Miss. 1970) (finding no physical contact in case involving a soft drink bottle being tossed by unknown operator into windshield of insured).

In many cases, however, the physical contact requirement can be met by indirect contact; that is, if the unknown vehicle is said to have contacted the insured through a medium of an intervening vehicle or object.  For example, in Southern Farm Bureau Cas. Ins. Co. v. Brewer, the requirement was met when the unknown vehicle struck an object in the road thereby causing the object to be propelled into the insured vehicle.  Southern Farm Bureau Cas. Ins. Co. v. Brewer, 507 So. 2d 369 (Miss. 1987).  There, the Court emphasized that the injury-causing impact must have a “complete, proximate, direct and timely relationship with the first impact between the first hit-and-run vehicle and the intermediate [object].  In effect, the impact must be the result of an unbroken chain of events with a clearly definable beginning and ending, occurring in a continuous sequence.”  Southern Farm Bureau Cas. Ins. Co. v. Brewer, 507 So. 2d 369 (Miss. 1987).

However, the ruling in Brewer was based on Farm Bureau’s policy language at the time.  The Court stated that had the insurance company intended that the provision apply only where this is direct, as opposed to indirect physical contact, between the hit-and-run vehicle and the vehicle of the insured, it should have so provided in unmistakably clear language.  Since the Farm Bureau policy was cable of two meaning, the construction most favorable to the insured was applied.  Southern Farm Bureau Casualty Ins. Co. v. Brewer, 507 So. 2d 369 (Miss. 1987).  Thus, in fact scenarios like Brewer, it appears that the policy language controls when deciding whether to exclude damages for indirect contract by debris propelled from a hit and run vehicle.

 

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The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

2018