Weekly Law Resume - July 15, 2010: Uninsured Motorist Claim - Statute of Limitations

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An insured may file a claim for uninsured motorist damages with his carrier, but under Insurance Code Section 1158.2 he or she may not subsequently file a legal action against the carrier unless within 2 years he or she has (1) filed a lawsuit against the uninsured motorist, (2) has demanded UM arbitration with the carrier or (3) has settled the claim with the carrier. This case raised the question of whether a minor is excused with complying with acting within that two year period.

On September 10, 2004, 13 year old Dakota Blankenship was riding his bicycle on the wrong side of the road and was struck by a car when he turned into traffic. The car was owned by Edward McEnespy, and was driven by Jennifer Outcalt. Outcalt had no insurance, and McEnespy's carrier denied coverage. Four months later, Blankenship's stepfather, Michael Moore, made a claim on behalf of Dakota with his automobile insurer, Allstate Insurance Company. After reviewing Dakota's medical records and files, Allstate sent a letter on May 25, 2006 offering $10,000 to settle Dakota's claim. Allstate also advised that the statute would run on Dakota's claim on the second anniversary of the accident, September 10, 2006. Allstate also sent a second letter to Mr. Moore informing him that Dakota had two years from the date of the accident, September 10, 2004, to settle the claim, file suit or institute formal arbitration proceedings.

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