Where’s The Insurance?
Where’s the Insurance?
-Learn to Read an Insurance Policy
-Persistence/Tenacity
-Creativity
Multiple Claimants/Not Enough
Insurance Coverage
• Difficult situations for all parties involved.
• Have to explore ALL possible coverage!
• For EACH individual claimant!
• Unusual situations for Plaintiff’s lawyers.
Multiple Claimants/Not Enough
Insurance Coverage
Two Important Cases
Janes v. Western States Ins. Co., 335 Ill.App.3d 1109 (5th
Dist. 2001)
Columbia Mutual Ins. Co. v. Herrin, Duncan, et. al., 2012
IL App (5th) 100037
Encompass Insurance UIM
coverage on the Duncan host
vehicle $900,000
(Policies issued to Dr. Roger Herrin, Michael’s
father)
1) Monroe Guaranty UIM coverage on Saline
County Care Center $3 million
2) Monroe Guaranty UIM coverage on Severin
Intermediate Care $2 million
3)
Cincinnati Insurance $500,000 UIM
Brian
Bramlet
Michael Herrin
Jared Head
Ross Duncan
Katherine Duncan
Bramlet Farm Truck
Columbia Insurance Auto
Liability coverage on Bramlet:
$100,000
Duncan Vehicle
(Host Vehicle)
Multiple Claimants/Not Enough
Insurance Coverage
Duncan Trial Court Verdicts:
Herrin Estate: $10,000,000.00
Jared Headd: $633,804.70
Katherine Duncan: $155,855.11
Ross Duncan: $125,892.50
Russell Duncan: $40,000.00 (LOC)
Multiple Claimants/Not Enough
Insurance Coverage
Duncan Trial Court Distribution
(Misapplication of Janes)
Herrin Estate: $677,851.06
Jared Headd: $147,368.96
Katherine Duncan: $36,228.77
Ross Duncan: $29,286.12
Russell Duncan: $9,256.09
Multiple Claimants/Not Enough
Insurance Coverage
Fifth District reversed. Error to use a ratio
methodology.
Herrin Estate not entitled to receive any of the
common UIM fund.
Multiple Claimants/Not Enough
Insurance Coverage
What do Janes and Duncan teach us?
-MUST determine UIM coverage for EACH
claimant.
-CANNOT have an equitable distribution of the
common insurance fund without this
information.
Multiple Claimants/Not Enough
Insurance Coverage
To be determined…
Actual amount of UIM recovered vs. actual
amount of UIM available?
-Duncan court did not need to address this
point.
-Could make a difference in some cases.
Multiple Claimants/Not Enough
Insurance Coverage
Does this theory apply in different contexts?
-Is it limited to just dividing a common pool of
UIM coverage?
-Hypothetical: Car crash. 3 claimants. Defendant
interpleads his insufficient limit. Some have
personal UIM, some do not. How do you divide
the Defendant’s policy?
Multiple Claimants/Not Enough
Insurance Coverage
Is the Janes/Duncan methodology limited to
consideration of UIM coverage?
-Health Insurance (public or private)?
-Other causes of action available to only one of the
claimants? Product liability theory?
-Other “collateral sources”? Workers compensation
benefits?
Statute of Limitation
Country Preferred Ins. Co. v. Whitehead, 2012 IL
113365, 979 N.E.2d 35 (2012)
-Uninsured motorist claim.
-Accident in Wisconsin; 3 year SOL.
-Two year contractual limitation policy does not
violate public policy even though Wisconsin had
a longer SOL.
Statute of Limitation
How do I protect the UM SOL?
-READ the policy!
-Presentation of UM claim within time limit:
-Be precise. Don’t rely on a “general” notice.
-Outline facts leading to claim. Send documents.
-Demand formal arbitration.
-Nominate your arbitrator.
-What else does your insured need to do?
Statute of Limitaton
How do I protect the SOL? (cont’d.)
-Request certified copy of policy/dec sheet.
-Can always agree to defer arbitration pending
settlement negotiations.
-File a formal lawsuit.
Statute of Limitation
How do I protect the UIM SOL?
-Same as UM.
-Be careful about timing. Prudent practice: do it
immediately, do not automatically wait until there is a
limit tender from tortfeasor’s insurer.