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How Underinsurance Can Save Your Personal Injury Case

It's called Part 12 coverage, and it's invaluable in a car accident negligence case that's resulted in an injured party. Part 12 coverage is also known as "under-insurance" or, more formally, "Bodily Injury Caused by an Under-insured Auto." The reason it's called, "Part 12?" Just look at your car insurance declarations page and you'll see that each type of coverage is called a Part.

Part 12 can be invaluable, and here is why. When you are struck by another car and sustain personal injuries, you'd ordinarily look to the coverage under Part 1 of the policy of the driver who hit you, given that the driver who struck you was at fault. That driver will either have coverage or no coverage, which would mean he or she has no Massachusetts car insurance because Part 1 is compulsory or required. If that driver has no insurance, you'd then look to your own Part 3 coverage, which is "Bodily Injury Caused by an Uninsured Auto." Your compulsory minimum on that insurance Part is $20,000/$40,000, just as with your own Part 1. That may create its own issue if your own damages exceed what you have for coverage under Part 3. If you only have the compulsory level, you will likely be unable to recover the full value of your case. At least with Part 3 coverage, you are forced to obtain it and, in the process, consider the appropriate amount coverage.

The different and arguably greater problem arises when the other driver actually does have the compulsory level and your damages greatly exceed $20,000. Just by the very nature of how we purchase insurance, it's far more likely that you have inadequate, or under-insurance. I've discussed our typical process for purchasing car insurance in other blog posts. Basically, it usually happens while we are purchasing a new car, and our focus is entirely on the new car, leaving really an inappropriate amount of focus on purchasing car insurance. The fact that this is the 12th (and last) type of coverage down the page doesn't help make it any more focus. Here's why you need it.

It is incredibly easy to run up medical bills at an astounding rate through the process--consider the emergency room visit, ambulance ride, followed by doctors' appointments, specialist appointments, surgery, physical therapy, and the like. It is additionally very easy to lose a substantial amount of work, particularly with more physically demanding jobs. The medical expenses and lost wages are what we call "special damages" in Massachusetts. They are basically grouped together because they're relatively easy to calculate. Unless there is some reasonable basis for attributing a portion of the medical bills and lost wages to a different injury or ailment, there won't be much debate about the applicability and calculation of those damages. Important but less easy to calculate are other, noneconomic damages, such as pain and suffering and loss of enjoyment. These too can amount to substantial figure. Under-insurance is a coverage type that protects you when the other at-fault party's coverage is inadequate to compensate you for all of these types of damages.

Whereas you would typically recover against the at-fault party in tort, under-insurance claims are recovered under contract law, because they are the result of the enforcement of a contract between you and your own insurance company. The fact that they are being paid to you by your insurance company does not mean that they are more easily obtained. Similarly to the adjuster from the at-fault party, there will be an adjuster assigned by your own insurance company. That adjuster's role will be identical to that of the at-fault party's insurer--that is, to reduce the value of your claim by the greatest extent possible.

So, I still highly recommend seeking counsel, a competent lawyer to assist you with both the bodily injury and the under-insured auto claims, even if you have under-insurance coverage. Making the election on your coverage selections page first is obviously a prerequisite. Probably the best thing about under-insurance is that it is very affordable. Drivers with relatively clean driving records can obtain $100,000 under insurance coverage for typically under $100 a year. That means that for just a few dollars a month, you're very likely looking at the difference of $20,000 to $100,000 in the event you are in a car accident and have personal injuries.

It is difficult to imagine being in a car accident and incurring personal injuries while you are in the process purchasing new car. However, the reality is that life is a risk that should be adequately insured against. If you've taken the step to have under-insurance, congratulations. If you have done so and you are now the victim of personal injury, consult with a competent lawyer about the strength of your case and what steps you take, particularly in the communication with your own under-insurance adjuster. It is recommended that you speak with the attorney prior to speaking with either of these adjusters or with the insurance companies generally. Because it is also recommended that you put the insurance companies on notice immediately after the accident, you should consult the attorney as soon after the accident as possible.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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