Immediately Following an Accident/Motor Vehicle Collision

Posted Monday, March 05, 2018 by Ed Harper

Here is our attorney-approved, easy-to-remember list for what to do immediately following an accident:

1. Protect: Keep yourself safe. Then, if able, determine if anyone else is injured or needing medical attention.

2. Call 911 to report the collision and obtain the assistance of first responders.

3. Document: Obtain all necessary information: Take property damage pictures of all vehicles involved, all insurance information, witness names, vehicle and driver’s licenses and registration.

4. Move: When there is no further danger, get the permission of policemen or first responders at the scene, and move your vehicle.

5. Get Checked: Schedule an appointment to have all your injuries examined by a professional. Even minor injuries must be treated after an accident.

6. Contact: Seek legal counsel regarding your accident, preferably by contacting Harper Law. Legal counsel is imperative to successfully bringing a personal injury or property damage claim. Finally, contact your insurance provider for further assistance.

Negligent Entrustment – Every Vehicle Owner’s Fear

Posted Monday, February 12, 2018 by Ed Harper

For one to be found responsible for the actions of another, negligently entrusting the vehicle for example requires a certain amount of knowledge leading to negligent conduct being determined. The court with Mejia v. Irwin, 45 Wn.App. 700 (1986) determined that a parent who merely rented a car for their son, would not be found responsible under the theory of negligent entrustment. The rule is quote a person entrusting a vehicle to another may be liable under a theory of negligent entrustment only if that person knew, or should have known in the exercise of ordinary care, that the person to whom the vehicle was entrusted is reckless, heedless, or incompetent. Cameron v. Downs, 32 Wn.App.875, 877 (1982).

In Mejia, a 29-year-old young man, Phillip Irwin, asked his father Felix if he could borrow Felix’s credit card to rent a vehicle. Felix agreed and rented the vehicle. The rental car company’s agent knew that Philip was to be the only user of the automobile. The plaintiffs attorney was creative and attempted to show that a poor driving history, some 11 years earlier put the father, Felix, on notice that his son was an irresponsible driver.

The young man, Philip, sadly died in this collision. Stella Mejia, as a passenger was injured and brought this claim. When Philip was a teenager he had some moving violations, and a car accident. But meanwhile his son had no tickets, and was not a bad driver, at least according to what his father knew.

The court continued that, “After some period of time, knowledge of the trustee’s previous reckless acts should have little bearing on the trustee’s present perception of the in trusted’s competence to drive at the time of the entrustment.… We recognize that the entrusted is only responsible for the subsequent negligent acts if the trustee as a reasonable man could have foreseen the negligent acts; and that when the for symptoms foreseeability of harm stems from past conduct, it must be conduct so repetitive as to make its reoccurrence foreseeable.” The court determined, “As a matter of law, Phillip’s citations and accident 11 years before the date of the alleged entrustment were too remote in time to permit the question of Felix’s alleged negligence to go to the jury.” Mejia at 705 – 706

Insurance Policies and Anti-Stacking Clauses

Posted Saturday, February 03, 2018 by Ed Harper

Under RCW 48.22.030(6) anti-stacking exclusions are allowed. Insurance polices often include statements limiting the highest possible amount of coverage of liability that applies. In the case of Greengo v. Pemco, 135 Wn. 2d 790 (1998) Justice Sanders stated (1) – the anti-stacking provision in the passengers policy did not violate the UIM statute or public policy; (2) the provision would not bar coverage if the facts showed that more than one “accident” had occurred.

In Greengo, because there were two collisions, and Ms. Greengo was rendered a permanent quadriplegic, she could recoup two UIM claims which she made against Pemco. Factually, in Greengo, 27-year-old Lori Greengo was severely injured when the car in which she was riding as a passenger driven by David Frawley and owned by Kerry Carefree, rear-ended another car on Interstate 5 as the Frawley vehicle was itself rear-ended by a third car driven by Michael Hampshire. While the precise sequence of events is disputed, all agree there were two collisions and Ms. Greengo was rendered permanently quadripelic. Greengo at 658.

The issue is as follows if there were two accidents, then Ms. Greengo is entitled to UIM recovery from Pemco for the second accident.

In retrospect, Pemco had an exclusion which was authorized by RCW 48.22.030(6) the statute mentioned above. “To the extent it limits the total UIM liability per accident to the single highest UIM liability limit when an insured is covered under more than one UIM policy.”

The statute authorizes insurers to set liability limits on a per accident basis regardless of the number of vehicles involved in the accident. The court determined this exclusion did not violate the public policy underlying the UIM statute. The court articulated the public policy underlying UIM is to create a second layer of floating protection, not full compensation. (See Elovich case mentioned in a previous blog post.) Additionally, the court supported that this position in this anti-stacking clause applies only after the insured has received a full UIM recovery, thus satisfying the requirement that the insured receive a second layer of protection.

In Greengo the question was in a chain reaction type collision – how many accidents were there? Ms. Greengo asserted that she was “was involved in two accidents for purposes of her Pemco policy because two drivers proximately caused her injuries in two collisions.”

The court determined when there are two collisions it should be determined if each accident has its own proximate cause. If so then there are two accidents. Greengo, at 663 – 64.

“Under our approach if each accident, collision, or injury has its own proximate cause, then each will be deemed a separate accident for insurance policy purposes even if the two accidents occurred coincident, or nearly coincident in time.” The court in Greengo relied on Transcontinental Insurance Company v. Public Utility District, 111 Wn. 2d 452 (1988), “(t)he number of triggering events for insurance policy purposes depends on the number of causes underlying the alleged damage and resulting liability.” Transcontinental, at 467.

The Washington Supreme Court submitted this case Greengo v. Pemco back to the trial court to determine if there were two separate collisions each with their own inherent proximate cause.

Underinsured Motorist Coverage Provides a Floating Layer of Coverage

Posted Thursday, January 25, 2018 by Ed Harper

In the State of Washington, underinsured motorist (UIM) insurance provides coverage above any liability coverage for an at-fault party. This can be beneficial to provide more available funds to an injred person and may be the only avenue of insurance to collect for a personal injury.

RCW 48.22.030 (1) requires insurers to provide a layer of coverage which “floats” above any liability insurance available to the tortfeasors. (Elovich v. Nationwide Insurance Company, 104 Wn. 2d 543 [1985]). The UIM coverage provides a secondary layer of protection over and above the recovery from other sources.

The Supreme Court of Washington in interpreting RCW 48.22.030(1) stated “UIM vehicle means a motor vehicle…with no bodily injury…liability…insurance policy which applies at the time of the accident, or with respect to which the some of the limits of liability under all bodily injury…insurance policies applicable to a covered person after an accident is less than the applicable damages which the covered person is legally entitled to recover.” Elovich, supra. Thus, when an at-fault party has no insurance or limited insurance, you can ask for UIM benefits.

In Elovich, which involved a two car accident, on July 12, 1981, 6 persons were riding in the Elovich vehicle. The at-fault vehicle collided with the Elovich vehicle. This at-fault driver was un-insured driver with negligible financial assets. Two of the six persons died, two suffered serious injuries, and two were less seriously injured. The parties settled with several defendants, including the governmental entity responsible for road design. The plaintiffs then asserted they were entitled to UIM coverage up to the policy limits or full compensation for their injuries. The plaintiffs asserted the settlement figure should be subtracted from the total damages, and Nationwide must pay the difference up to the policy limit.

The Elovich court was concerned with resolving an ambiguity in the statute: whether the UIM coverage is a “decreasing” layer of coverage that guarantees a minimum payment, or a “floating” layer of coverage that applies up to the total of damages suffered.” Elovich, supra.

The court determined RCW 48.22 030 shifted the emphasis from minimum recovery defined by policy limits to the total damages the party had suffered. This amendment indicates that the floating layer theory applies. Here, the court understood the legislative’s purpose was to focus on full compensation for the insured and that when an insurance policy is less than the damages which the covered person legally may recover, the UIM coverage must step in.

This does not mean the insured person is allowed full compensation, but the UIM carrier is responsible for damages up to their liability limits. Another way to look at UIM claims is to consider insurance coverages as building blocks. In a no-fault accident, the injured person has as a first layer of coverage, the personal injury protection (PIP) coverage. The second layer is the liability coverage for the at-fault vehicle or driver. And the third layer is UIM coverage, which stacks on top of the PIP and liability coverages.

A UIM Insurance Carrier Receives Full Credit for Underlying Insurance Limits

Posted Monday, January 15, 2018 by Ed Harper

A UIM claimant must be aware when settling their liability claim for less than the full policy limits, the UIM carrier obtains a set-off and is allowed to deduct the underinsured’s full policy limits from the claimant’s underinsured motorist benefits. This issue arose with DeVany v. Farmers Insurance Company 134 Wn.App 204 (2006), when plaintiff Mary DeVany argued that Farmers Insurance Company should not be allowed to deduct the underinsured’s full policy limits from her UIM benefits.

In Devany, the plaintiff was injured in a car accident when her car collided with a car driven by Noah Bowling. Mr. Bowling (the underinsured tortfeasor) was insured by Allstate with liability limits of $25,000. DeVaney was insured by Farmers Insurance with UIM coverage of $100,000. After the accident, DeVaney sued Bowling and ultimately settled her third-party claims with Allstate for $23,000. Ms. DeVaney then filed a UIM claim with Farmers. An arbitrator determined that her total damages were $44,838. Devaney and Farmers disagreed on whether Farmers as the UIM carrier could deduct the underinsured tortfeasor’s full $25,000 liability limits. Farmers paid her the undisputed amount. However, $2,000 remained in dispute.

The rule in UIM claims are as follows “for purposes of UIM coverage, the insurance carrier is said to stand in the shoes of the tortfeasor, and payments made by the UIM carrier are treated as if they are made by the tortfeasor.” Hamm v. State Farm Mutual Auto Ins. Company, 151 Wn.2d 303, 308 (2004).

DeVany settled short, $2,000 less than the tortfeasor’s available insurance policy maximum ($23,000 v. $25,000). However, in this case it would be unfair as the UIM carrier gets credit for the full $25,000. “Farmers should not be penalized for DeVany accepting a settlement amount less than the full $25,000 policy limit. The under insurer always is allowed to credit the full amount of the tortfeasor’s liability coverage against the insured damages.” Hamilton v. Farmers Insurance Company, 107 Wn.2d 721, at 728 (1987).

In conclusion, Farmers is entitled to a set off in the tortfeasor’s full policy limits. This case exemplifies the set off rule, but also demonstrates a UIM claimant need not receive the full underlying policy limit prior to pursuing and obtaining a UIM settlement.