Uninsured | Underinsured Motorist Accidents Lawyer
Woodland Hills auto accident lawyer Barry P. Goldberg is an expert on all things “Uninsured” and “Underinsured”, including preserving the statute of limitations pursuant to Ins. Code §11580.2(i). One of the most frustrating realities for an insured is forfeiting compensation by failing to take the requisite action during the two-year limitation period after an accident which involved an uninsured vehicle. It is critical to understand Ins. Code §11580.2(i) and the applicable case law. Here is a guide to preserve a case, and some possible reasons to excuse strict compliance.
There are three different ways to preserve an Uninsured Motorist case before the statute of limitations expires. The first way is to file a third-party lawsuit against the uninsured motorist and to promptly notify the insurer. (Ins. Code §11580.2(i)) The second way is to finalize an agreement on the amount owed under the applicable policy. (Id.) This finalized agreement cannot be merely speculative based on the amount of the available policy limits, the amount of payments made to other people involved in the accident, or even on representations of the insurer’s willingness to pay. (See, Sangster v. Paetkau (1998) 68 Cal.App.4th 151,162-63.) There must be an actual enforceable agreement made between the insured and their insurer. In the UM context, the word “policy” in the statute refers to the insured’s UM policy. (See, Ins. Code §11580.2(i)) Reaching an agreement under the third-party liability policy will not satisfy the statute. (Id.)
The last way to preserve an uninsured motorist case is to formally initiate arbitration proceedings in writing and certified. (Id.) Again, of course, the demand for arbitration must be to the insured’s own UM insurer. (See Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1057) Beware—even if there is a separate arbitration in process, for example, between two insurance companies concerning the same incident, that is not an initiation of arbitration proceedings for the purposes of preserving the insured’s UM case. (Id.)
If the insured is not represented by counsel in an uninsured motorist case, the two-year statute might be tolled. If the uninsured motorist insurer is aware of the claim, the insurer is required to notify the insured, in writing, within thirty days before the statute expires. (Ins. Code §11580.2(k)) If the UM insurer fails to notify the insured, then the limitations period is tolled, until notification is provided. Once the insurer provides notice, there is only an additional thirty days to act before the statute expires. (Id.)
Ins. Code §11580.2(i) provides a few exceptions for failing to preserve the UM limitations period– estoppel, waiver, impossibility, practicability, and futility. Futility and impossibility are difficult to prove. Even a dispute for damages is completely dependent on the outcome of another investigation which will conclude after the statutory period, that has been held not to satisfy the exception of futility or impossibility. (See, Santangelo v. Allstate Ins. Co. (1998) 65 Cal.App.4th 804) To satisfy the exception of estoppel, one must have:
“(a) a representation or concealment of material facts,
(b) made with knowledge, actual or virtual, of the facts,
(c) to a party ignorant, actually and permissibly, of the truth,
(d) with the intention, actual or virtual, that the ignorant party act on it, and
(e) that party was induced to act on it.” (Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1462)
Scheduling doctor’s appointments after the statutory period and representing potential settlement (which do not occur) do not satisfy the estoppel exception. (Santangelo, 65 Cal.App.4th at p. 817; See, also, Lobrovich v. Georgison (1956) 144 Cal.App.2d 567, 573-74.) An example of estoppel was found when an insured was misled by the UM insurer to not take action to preserve that UM claim. (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1315) Estoppel was found when the insurer induced the insured to delay or refrain from filing a lawsuit; i.e., statements by the insurer that a lawsuit was unnecessary to receive a settlement. (See Miles v. Bank of America Etc. Assn. (1936) 17 Cal.App.2d 389, 397-98.) Unless an exception is provided in the statute, it is unlikely to toll the limitations period. (Rojas v. Superior Court (2004) 33 Cal.4th 407, 424.)
Our office recommends early and decisive action to preserve the statute of limitations. In every case, it is advisable to consult with an experienced auto accident attorney with advanced knowledge concerning uninsured and underinsured motorist law and arbitration. If you have been in an accident and have questions about any uninsured or underinsured motorist issues, contact an uninsured or underinsured motorist accidents lawyer from Barry P. Goldberg right away.
