WIXLIB

Presenting a live 90-minute webinar with interactive Q&AUninsured and Underinsured Motorist Claims:Leveraging Insurance StackingMaximizing Settlement Awards in Auto Accident CasesTHURSDAY, DECEMBER 5, 20131pm Eastern 12pm Central 11am Mountain 10am PacificToday’s faculty features:Sidney E. Wheelan, Partner, Tatlow Gump Faiella Wheelan, Moberly, Mo.Charles M. McDaniel, Jr., Partner, Carlock Copeland & Stair, AtlantaThe audio portion of the conference may be accessed via the telephone or by using your computer'sspeakers. Please refer to the instructions emailed to registrants for additional information. If youhave any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

Tips for Optimal QualityFOR LIVE EVENT ONLYSound QualityIf you are listening via your computer speakers, please note that the qualityof your sound will vary depending on the speed and quality of your internetconnection.If the sound quality is not satisfactory, you may listen via the phone: dial1-866-869-6667 and enter your PIN when prompted. Otherwise, please send usa chat or e-mail sound@straffordpub.com immediately so we can address theproblem.If you dialed in and have any difficulties during the call, press *0 for assistance.Viewing QualityTo maximize your screen, press the F11 key on your keyboard. To exit full screen,press the F11 key again.

Continuing Education CreditsFOR LIVE EVENT ONLYFor CLE purposes, please let us know how many people are listening at yourlocation by completing each of the following steps: In the chat box, type (1) your company name and (2) the number ofattendees at your location Click the SEND button beside the boxIf you have purchased Strafford CLE processing services, you must confirm yourparticipation by completing and submitting an Official Record of Attendance (CLEForm).You may obtain your CLE form by going to the program page and selecting theappropriate form in the PROGRAM MATERIALS box at the top right corner.If you'd like to purchase CLE credit processing, it is available for a fee. Foradditional information about CLE credit processing, go to our website or call us at1-800-926-7926 ext. 35.

Program MaterialsFOR LIVE EVENT ONLYIf you have not printed the conference materials for this program, pleasecomplete the following steps: Click on the symbol next to “Conference Materials” in the middle of the lefthand column on your screen. Click on the tab labeled “Handouts” that appears, and there you will see aPDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon.

UNINSURED ANDUNDERINSURED MOTORISTCLAIMSLEVERAGING INSURANCESTACKING TO MAXIMIZERECOVERYPresented By:Sidney Wheelan

WHAT IS STACKING?“Stacking” is an insured’s ability to obtain multipleinsurance coverage benefits for an injury: either from more than one policy, as where the insuredhas two or more separate vehicles under separatepolicies; or from multiple coverages provided for within a singlepolicy, as when an insured has one policy which coversmore than one vehicle.6

ESTABLISHING THE RIGHT TO STACKSTATE STATUTESDoes your state’s statutes regarding UninsuredMotorist or Underinsured Motorist Coverage reflect alegislative purpose which would be furthered bypermitting stacking in the circumstances presented?7

ESTABLISHING THE RIGHT TO STACKSEPARATE PREMIUMSWhere separate premiums have been charged, whetherin separate policies or on the basis of multiple vehiclesunder a single policy, the plaintiff may be able tosuccessfully argue that stacking is necessary in order toprovide the coverage corresponding to the premiumand to prevent illusory coverage.8

ESTABLISHING THE RIGHT TO STACKREASONABLE EXPECTATIONSStacking may be permitted if it is within thereasonable expectations of the person purchasing thecoverage*Courts often construe the meaning of the words aswould a reasonable person in the position ofthe insured.9

ESTABLISHING THE RIGHT TO STACKCLASSES OF INSUREDSDistinctions between classes of insureds, which mayaffect the plaintiff’s right to stack, may be found in thestatutes, in the automobile insurance policy or as amatter of common law. Class I: Usually the named insured & familymembers Class II: Not identified as insureds specifically, butcovered only if they occupy an insured vehicle.10

ESTABLISHING THE RIGHT TO STACKSINGLE POLICY OR MULTIPLE POLICIESDistinctions are sometimes made between stacking ofmultiple coverages provided by a single policy (intrapolicy stacking) and stacking of separate coveragesprovided by separate policies (inter-policy stacking)11

ESTABLISHING THE RIGHT TO STACKSAME INSURER OR DIFFERENT INSURERMany automobile insurance policies contain “otherinsurance” clauses which may operate to preclude orlimit stacking of policies issued by different insurers.12

ESTABLISHING THE RIGHT TO STACKUNINSURED OR UNDERINSUREDIn some jurisdictions, the stacking of uninsuredmotorist coverage is governed by different rules thanthe stacking of underinsured motorist coverage*Ie. Insurers may be required by statute to offer UMcoverage and may not utilize restrictions on stacking toavoid stacking but insurers are not required to issueUIM coverage and thus may use policy language to tryto limit stacking13

ESTABLISHING THE RIGHT TO STACKAMBIGUITYWhere there is ambiguity, there is a potential for stackingmultiple coverages Courts determine ambiguity from the position of areasonable lay person in the position of the insured Policies must be interpreted not in isolation but as awhole Policies may be ambiguous if they promise something atone point and take it away at another14

DEFENSES TO STACKINGDEFINITION OF UNINSURED ORUNDERINSURED MOTORIST IS NOT MET Definition may be tied to whether limits of plaintiff’spolicy are more than the limits of the underinsureddriver rather than whether plaintiff’s damages are morethan the coverage for the other driver Some states allow stacking of coverages first, using thestacked amount to determine whether the definition ofunderinsured motorist is met***Even if definition is not met, it may not be thedetermining factor in establishing coverage***15

DEFENSES TO STACKINGLIMIT OF LIABILITY CLAUSESThe limit of liability shown in the Declarations for eachperson for UIM coverage is our maximum limit of liabilityfor all damages for loss of services or death arising out of“bodily injury” sustained by any one person in any oneaccident. . . .The limit of liability shall be reduced by all sums paidbecause of bodily injury or by or on behalf of persons ororganizations who may be legally responsible.16

DEFENSES TO STACKINGANTI-STACKING CLAUSESIf more than one policy we issued to you covers aclaim, this policy covers only the proportion of ourultimate liability that is limits bear to the total limits ofall our policies that cover the claim . Our total liabilityunder all our policies will not exceed the highest limitof any one policy . . . .17

DEFENSES TO STACKINGANTI-STACKING LANGUAGE, cont.Or more specifically:If more than one vehicle is insured under this policy orif more than one policy issued to the insured applies tothe same accident, the limits applicable toUnderinsure d Motorist Coverage may not bestacked.18

DEFENSES TO STACKINGOTHER INSURANCE CLAUSESIf there is other applicable underinsured motoristinsurance available under one or more policies orprovisions of coverage . . . :Any underinsured motorist insurance weprovide with respect to a vehicle you do notown shall be excess over any collectibleunderinsured motorist insurance.19

PRACTICAL TIPS FOR MAXIMIZINGRECOVERYLOOK FOR STACKING OPPORTUNITIES Serious injuries Cases arising out of the use of a non-ownedautomobile Injuries to unrelated passengers20

PRACTICAL TIPS FOR MAXIMIZINGRECOVERYUNDERSTAND THE DETAILS OF YOURCLIENT’S ACCIDENT Who was driving the vehicle? Who were the passengers? Where were they sitting in the vehicle? How did the collision happen?21

PRACTICAL TIPS FOR MAXIMIZINGRECOVERYGATHER THE INFORMATION Obtain all of your client’s insurance policies Ask about any other vehicles your client may own Ask about ownership of the vehicle involved in thecollision Ask about the relationship of any of the passengersin the vehicle Ask whether anyone was on company business at thetime of the collision22

PRACTICAL TIPS FOR MAXIMIZINGRECOVERYREAD THE INSURANCE POLICIESCAREFULLY Begin with the Declaration Page What types of coverage? Limits of coverage How many vehicles are insured? Who are the named insureds23

PRACTICAL TIPS FOR MAXIMIZINGCOVERAGEREAD THE INSURANCE POLICIESCAREFULLY Read the definitions carefully Definition of Underinsured or Uninsured Motorist Definition of “you” Definition of “insured”24

PRACTICAL TIPS FOR MAXIMIZINGCOVERAGELOOK FOR AMBIGUITY IN THE POLICYLANGUAGE Remember: Ambiguities are construed in favor ofthe insureds25

PRACTICAL TIPS FOR MAXIMIZINGRECOVERYAMBIGUITY IS OFTEN FOUND WITHIN THE“OTHER INSURANCE” CLAUSE Remember that policies must be read “as a whole” If language indicated that coverage is excess in oneclause, but not in another, it may be consideredambiguous26

PRACTICAL TIPS FOR MAXIMIZINGRECOVERYCASES INVOLVING STACKING ARE ALWAYS FACTDEPENDANT AND DEPENDANT UPON POLICYLANGUAGE Expect to see many more cases litigated as moreplaintiffs push for stacked limits and insurancecompanies respond by trying to tighten policylanguage27

LEVERAGING INSURANCE STACKINGTHANK YOUSidney Wheelan, PartnerTatlow, Gump, Faiella & Wheelan, LLC110 N. Fifth St.Moberly, MO 65275660-263-3100E-mail: swheelan@tgflaw.com28

UNINSURED AND UNDERINSUREDMOTORIST CLAIMSLEVERAGING INSURANCESTACKING TO MAXIMIZERECOVERYPresented by:Charles M. McDaniel, Jr.December 5, 2013

UNINSURED AND UNDERINSUREDMOTORIST CLAIMSLEVERAGING INSURANCESTACKING TO MAXIMIZERECOVERYANALYSIS THROUGHRECENT CASE LAW30

Three Fundamental Principles31

Three Fundamental Principles 32Read and understand theterms and conditions of theapplicable policies;

Three Fundamental Principles 33Know the applicablestatutory scheme, and

Three Fundamental Principles 34Learn the facts of the case

Three Fundamental Principles 35Read and understand theterms and conditions of theapplicable policies;Know the applicable statutoryscheme, andLearn the facts of the case

Uninsured Motorist CoverageExample of Stacking andPriority of CoverageDetermination36

Uninsured Motorist CoverageTests for DeterminingPriority of Coverage receipt37of premium test;

Uninsured Motorist CoverageTests for DeterminingPriority of Coverage morewith;38closely identified

Uninsured Motorist CoverageTests for DeterminingPriority of Coverage circumstances39of the injury.

Uninsured Motorist CoverageTests for DeterminingPriority of Coverage receiptof premium test; more closely identifiedwith; circumstances of the injury.40

Maximize UM/UIM CoverageRecent Court Decisions41

Maximize UM/UIM CoverageMunroe v. ContinentalWestern InsuranceCompany, -- F. 3d --, 2013WL 5942625 C.A. 8 (MO)Nov. 7, 201342

Maximize UM/UIM CoverageCorrigan v. ProgressiveInsurance Company, -- S.W.--, 2013 WL 5421978 (E.D.Mo.)Sept. 10, 201343

Maximize UM/UIM CoverageRatnayake v. FarmersInsurance Exchange, 2013WL 5603583 (D. Nev.)Oct. 11, 201344

Maximize UM/UIM CoverageHorace Mann Insurance Company v.Chase, 121 So. 3d 1191, 38 Fla. L.Weekly D2064Sept. 26, 201345

Maximize UM/UIM CoverageState Farm Mutual AutomobileInsurance Company v. McFadden,2012 IL App (2d) 120272, 979 N.E.2d551, 365 Ill. Dec. 947Oct. 31, 201246

Maximize UM/UIM CoverageWestveer v. Garrison Property& Casualty Insurance Company,526 Fed.Appx. 224, 2013 WL1174014 (C.A.4 (Va.))March 22, 201347

Maximize UM/UIM CoverageSaladin v. Progressive NorthernInsurance Company349 Wis.2d 526, 2013 WL2401033 (Wis.App.))June 4, 201348

Maximize UM/UIM CoverageWestra v. State Farm MutualAutomobile Insurance Company349 Wis.2d 409, 835 N.W.2d 280June 18, 201349

Uninsured Motorist CoverageHall v. Allstate Insurance Company407 S.W. 3d 603 (Dec. 11, 2012)50