The Single Biggest Mistake Lawyers Make on Uninsured and Underinsured Motorist Claims

Barry P. Goldberg, has studied and re-studied the statutes, case law and treatises concerning Uninsured and Underinsured motorist. In addition, Mr. Goldberg has authored some ofthe most popular articles on Uninsured ("UM") and Underinsured ("UIM") motorist claims and has written countless blog posts on the subject. Mr. Goldberg regularly fields calls from other lawyers and insureds seeking advice on how to advance or conclude their UM and UIM claims. More often than not, lawyers and insureds make the same mistake which stalls the claim and there is no instruction on how to get the claim "back in gear" ---- until now!

The single biggest mistake that is made over and over again is that lawyers and insureds fail to effectively demand arbitration. Uninsured and Underinsured motorist claims fall outside the regular legal system. All such claims are decided by arbitration in California. As a practical matter, insurers discourage arbitration and claimants fail to push for this important remedy. So, the claim is stalled and there is no end in sight. The insurers ask for additional information and diary the claim ahead. Claimants wish to avoid "litigation" and fail to push for arbitration and an arbitration date. When the topic is brought up, insurers often contend the claim is not ready for arbitration because they require a defense medical exam or some other information or discovery.

Falling into the delay trap defeats the whole purpose of the Uninsured/Underinsured motorist laws---to provide a prompt and inexpensive conclusion to the claim. Even the most experienced and effective personal injury trial lawyers fall victim to this ambiguity. For the UM/UIM laws to work, lawyers and insureds must effectively demand arbitration at the earliest opportunity. Argument that more information is required is not a recognized ground for delaying the selection of an arbitrator and setting an arbitration date. Rather, it is best practice to demand arbitration as an alternative to acceptance of a settlement demand. The demand should include at least three arbitrator names for the insurer to pick from.

The preferred timetable is that the insurer should respond, in writing, to your arbitration demand within seven days by either selecting one of the candidates provided, or propose an alternative list. If no response is received, the claimant should file a Petition to Compel Arbitration, followed by a Motion to Select an Arbitrator. [C.C.P. §1281.2] (The insurers rarely allow these petitions and motions to be heard and reluctantly agree to an arbitrator because it could be some evidence of a "bad faith" delay.) As soon as an arbitrator is selected, he or she should be immediately contacted to have a scheduling conference to set the arbitration date. Arbitrations should be set at the outside limit of 90 days.

With an arbitration date set, the claim will not linger. Of course, there is a lot of work to be done to be sure. However, lawyers and insureds know that the case will be concluded within 90 days---so it's worth it! Perhaps more importantly, the overwhelming number of UM/UIM cases set for arbitration settle before the arbitration. As a practical matter, the insurers pay more on cases set for arbitration and, within reason, will not let cases be arbitrated if there is any real chance that the award will be more than the low amount it previously offered. The insurers know that an arbitration award for an amount greater than the insurer's offer is the main precursor to a first party insurance bad faith case.

Accordingly, it is vitally important to avoid the single biggest mistake on UM/UIM cases by effectively demanding arbitration and securing arbitration on a date certain. There is simply no excuse for allowing a case to stall.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Barry P. Goldberg, A Professional Law Corporation | Attorney Advertising

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