Missouri Insurance Lawyer Blog

Perhaps you've just been involved in an automobile accident with another vehicle. Your car is damaged, but still drivable. Your neck and back feel a bit sore. The accident was not your fault. Now you must make several very important decisions. Undoubtedly, you will also have many questions.

Given the current financial market, it has become more difficult for insurance companies to receive a good return on the premiums you pay. Therefore, greater pressure is placed on the claims departments to pay out less in claims dollars. It's important for you to remember that the only way a claims department accomplishes this goal of making an "underwriting profit" is by paying out as little as possible on each and every claim.

You can read more about this topic, as well as read CFA's Checklist for Getting the Settlement You Deserve here.

Unfortunately, not all accidents are just minor fender benders. Should you find yourself in a serious accident, medical payments coverage pays for medical bills (and sometimes funeral bills) incurred by the driver and passengers injured in a motor vehicle accident regardless of who caused the accident. It also pays for you or your family members injured while riding in another's car or if struck by a car as a pedestrian.

Medical payment coverage is offered by most automobile insurance coverage and is usually sold in increments of $1000, $5000 or $10,000 per person.

Even if you have health insurance, there are often deductibles and co-payments that must be paid. If your health plan requires you to pay a deductible, medical payments coverage may help pay it. This coverage can also help pay for items not covered by your health plan, such as dental treatment, professional nursing services, prostheses, and funeral services.

In Missouri, medical payments coverage is not required. However, I recommend this coverage for most of my clients. If you decide this protection is appropriate for you, make sure you specifically request it from your insurance agent or representative. It is not always provided by simply requesting "full coverage" from your agent.

Continue reading "Do I Need Automobile Medical Payments Coverage?" »

This article discusses what California is doing to address uninsured motorists on the road.

California Taking Aim at Uninsured on the Roads - New York Times.

Missouri also has a large problem of uninsured vehicles on the road, which our legislature has failed to address. Consider also that the the required auto insurance limits are only $25,000.00 per person and $50,000.00 per accident in Missouri. These limits have not changed since the 1980's and have been reduced in actual value by inflation. These limits will not cover medical bills and lost wages if an injury of any magnitude is suffered. To protect yourself until the Missouri legislature acts you should carry limits of uninsured and underinsured motorist limits of at least $100,000.00 to protect yourself if your are in a car accident and are injured. If you have been injured and need help contact the lawyers of Tatlow, Gump, Faiella, & Wheelan, LLC at 1-800-264-3455 or visit our website to learn more.

If you have been injured by negligence you have a personal injury claim. Depending on how the claim happened you may also have a property damage claim, such as damage to your car. If you want to pursue a claim for damages you should consult with an attorney experienced in personal injury law. Many claims can be handled without hiring a lawyer but you should always consult with a lawyer first because the law is complex and in your particular situation there may be reasons that an untrained person should not handle their own claim. For example, all personal injury claims are subject to statutes of limitations, which require that you bring your claim within the time period specified or your claim is forever barred. The general statute of limitation for personal injury in Missouri is five years, but that does not mean that is the time limit that applies to your case. Time limits can be drastically shorter depending on a variety of factors that a non-lawyer would not know. So step one is see a lawyer. Step two is asking your lawyer if this is something that they need to handle or if you could do it on your own. You may have claims or rights you don't know about so if you proceed without speaking to a lawyer you are taking a big risk.

Step three; if you proceed on your own collect all the information about how the injury happened such as accident reports, photos, witness names, addresses, and phone numbers. Get written or recorded witness statements and ask the witnesses to state what they saw, what they heard, and what they did. Finding all the witnesses may take some legwork because it's rare that all the witnesses are listed on accident or incident reports. Gather documentation to support your damages including, medical bills, and pharmacy records, lost wages, loss profits, expenses and property damage.

Once you have gathered all these documents make a demand upon the insurance company for the responsible person(s) that sets out how the incident happened, and your damages. A demand is simply a letter sent to the insurance company setting out the facts of your case and asking for an amount of money to settle your case. The letter should have the supporting information attached.

The total of all the bills, losses and expenses are called special damages. In addition to special damages you are entitled to compensation for pain and suffering. Pain and suffering is difficult to place a value on, but it is easier to get money for if you have evidence that supports the claim. Evidence includes pictures of injuries, medical records documenting pain, pain medication prescriptions, and witness testimony. Including this information in your demand will help you get the true value of your claim. If you can get a letter from your doctor setting out the injuries that you suffered as a result of the incident you should do so. If you have medical issues that pre-existed the injuries you claim from your accident then this is particularly important. Insurance companies often refuse to settle or make low offers when they believe there is evidence that you already had the injury before the accident. Any evidence you can use to support that the injury is new, different, or an aggravation is helpful.

Once you make your demand you then need to stay on top of your claim and make sure the insurance company makes a response. You also need to be responsive to the company's reasonable request for additional information. You should make your demand high enough so that you have room to negotiate down. There is no hard and fast rule for how much to demand, although insurance professionals often say 3 to 5 times special damages is typical for an opening demand. If the company makes an offer that is unacceptable you should negotiate to get to their best offer. If you can't get them to a reasonable sum, then you may wish to speak to a lawyer again. If you settle, make sure you carefully read and understand the release before you sign. Depending on your personal situation you may also have to satisfy liens of medical providers, health insurers, Medicare, Medicaid or others. You should also make proper claims under your insurance policies. If you were injured on the job or receiving social security disability you should consult with an attorney.

This article is an overview and provides tips on handling your own personal injury claim. It does not cover all the legal issues that may be presented in your particular case. This article is not legal advice and you should consult with a lawyer before proceeding on your own.

If you or a loved one has suffered an injury in a car cash you need to consult with an experienced personal injury lawyer. The more information you can give your lawyer the better. If you are able, gather the following information and bring it with you when meeting with your lawyer. Obtain the names of all the people involved in the car crash, and any witnesses. A copy of the accident report should be available within 7-10 days after the crash and is available to anyone who requests a copy. Bring the name and contact information for any insurance adjuster you have spoken with. Photos of the vehicles and scene if you have them. A copy of your own auto policies. Copies of written statements. Medical records or bills, and a copy of your health insurance card. Documents regrading any lost wages or business losses. Receipts for any property damage, or other expenses related to you injuries or the crash. Gathering this information will help your lawyer help you with your Missouri personal injury claim. For more information about personal injury visit the personal injury information center.

Umbrella insurance provides an extra level of protection for your home or business. Umbrella insurance provides protection against claims or lawsuits that exceed the coverage on your home, car and business liability insurance policy. Umbrella coverage is usually sold in $1,000,000.00 increments and is very cost effective. If you need additional coverage this is an inexpensive way to cover your risk and protect yourself or your business. The New York Times has written an excellent article on this topic that is well worth reading.

Umbrella Coverage for Preventing Your Ruin - NYTimes.com.

Missouri, Illinois Collateral Source Rules Affect Bodily Injury Claims Differently.

This is an interesting story reported by the Insurance Journal. Missouri changed its collateral source rule under tort reform in 2005. Since then the vague law has been applied differently by many circuit courts. Recently, a St. Louis judge declared the law unconstitutional.

How you may buy your insurance policy is changing in Missouri and national. Many insurance companies are placing a large emphasis towards online purchase of policies. In some of these ads the major point is a cheap price and insurance coverage is displayed as commodities that can simply be purchased like picking a cereal box off your grocery's shelf.
The problem of course is insurance policies are way more important than what cereal you choose. Obviously the price of anything is important, and consumers are naturally price sensitive, but the old adage, you get what pay for continues to be true. If you buy at rock bottom prices online you're getting paired down coverage that may leave you with many gaps.
Simply put, all coverage are not the same, and just because you have a coverage doesn't mean you are covered exactly the same way you would be if you had seen and agent and purchased a policy that cost a little more. My advice is see an insurance agent or two in person. Get advice on what the scope and price of coverage is and then choose which policy is best for your particular situation.
Let me give you an example of how two policies can differ greatly. An inexpensive underinsured motorist policy from a national online advertiser defines underinsured motorist coverage in a way that totally off sets the coverage by what the opposing driver has in liability coverage. A more traditional company that sells its policy through agents cost a little more, but it treats the same coverage as excess over the other driver's liability coverage. So if buyer one has $100,000.00 of underinsured coverage and is in a sever crash with another driver who has $100,000 of liability coverage and is badly injured he collects $100,000.00. The second buyer who paid a little more gets to collect $200,000.00. Obviously one of these policies offers much more protection than the other.
As I see it the problem with buying on line is that you don't get to ask questions face to face, and you really don't get an understanding of what is really covered. I recommend that you treat insurance like what it really is, a very important part of your financial risk management, even if some companies want to race to the bottom competing over price.

In Missouri, if you get in a car crash and are seriously injured you need a Missouri car accident lawyer to help you. These lawyers are generally called personal injury lawyers. Personal injury lawyers have experience in dealing with injury and insurance law. If your case must be decided by a jury, then a personal injury lawyer knows how to present your case to the jury to maximize the value of your case. Car accident cases are decided by determining two things: fault and cause. To collect money damages the person you are suing must have been at fault and must have caused damages. Whether they are at fault is determined by the law of negligence. Negligence is a person while driving fails to act like a very careful person would act under the same circumstances.
Car accident negligence is usually a result of improper attention to rules, regulations and/or safety. This breach of the rules must also directly cause the crash and resulting injuries. Sometimes the injuries are clear such as a death from trauma, at other times the injuries may be less clear because of other aliments or conditions in the injured person's medical history.
A car accident lawyer also has the ability to help you value your case depending on the severity of your injuries, and the disruption to your life and occupation. In most cases although you were injured by a negligent motorist, your real opponent will be an insurance company who will be insuring the opposing driver or the driver and his employer. If the opposing driver is uninsured or underinsured you may have to fight your own insurance company to get paid. Insurance companies know the law, and have an incentive to minimize the value of your claim, and to delay or avoid payment. If you want to learn more visit the car accident lawyers of Tatlow, Gump, Faiella, and Wheelan, LLC.

Missouri has taken a stand against texting while driving as reported on the Missouri Injury Lawyers Blog story, entitled Missouri Legislature Moves to Curb Car Crashes Caused by Texting.
Now national legislation is being considered at the federal level. As reported in Insurance News Net Nationwide Insurance has announced that it will support this national effort. As reported by Insurance News Net,
"There is a growing body of research and evidence that suggests a ban on texting while driving will save lives and make our roads a safer place to drive, said Bill Windsor, Nationwide's Safety Officer."
Clearly a ban on texting while driving will prevent personal injuries and deaths. Can there be any doubt that a driver should not be driving down the road texting? Driver inattention is the largest single cause of crashes on our roads. Let's discourage people who believe that they can text and drive by making it illegal everywhere.

Roy Rogers once said an insurance policy is one page that tells you what insurance you have and 50 pages that tell you why it does not apply in your particular situation. The 50 pages that take coverage away are called exclusions.
Exclusions are the insurance companies way of narrowing the risk they have accepted under the contract. For example if you have a policy of insurance on your car, but the situation that arises falls within an exclusion you bear the risk of loss and not the insurance company. In a recent post entitled Don't Believe The Hype You Are Not Friends, I made the point that all you get from insurance is the written contract. The nice sales pitch and fuzzy promises on TV give way to the hard realities of what's written in the insurance contract when its time for a claim.
If the insurance company denies your claim, it is usually because of exclusion. By way of example consider a common exclusion in a personal auto insurance policy, the business exclusion, which takes coverage away if your vehicle is used in a business instead of personal use. Even if you have your car insured for liability and you are in a crash and hurt someone you won't have any coverage if you were using a personal auto on business. Fortunately exclusions in the policy must be phrased in clear, plain and unambiguous language. If the insurance company claims that exclusion applies it is their burden to prove that it applies. So to protect yourself read your policy carefully to see what is covered before you need to make a claim.

It's amazing how many times I have clients injured in a car crash tell me that that thought they had "full coverage." In Missouri there are minimum state requirements for insurance coverage, but these minimums are very far from full coverage. When your only instruction to an agent or insurance company is that you want full coverage you are leaving your financial protection to chance. Missouri law requires that auto policies have liability insurance coverage of $25,000 per person and $50,000 per accident, and the same limits for uninsured auto coverage. There is no legal requirement to have underinsured motorist coverage, medical payments coverage, accidental death, or extended benefits coverage.
Underinsured coverage offers protection from drivers who injure you but do not have enough coverage to cover your injuries. Medical payments coverage pays for medical bills you incur as a result of being injured by a vehicle related incident, if you are killed this coverage pays all or part of the face amount of the benefit depending on the policy. Accidental death provides additional coverage should you die in an auto related incident. Extended benefits coverage pays lost wages if you are off work from an auto related incident.
If you want full coverage you would purchase all of this coverage to insure that you are truly protected. You also need to purchase insurance limits that make sense for you given your financial circumstances. I suggest that your minimum limits should be no less than $100,000 for liability insurance, uninsured motorist, and underinsured motorist. $10,000 in medical payments coverage and accidental death is adequate if you have adequate health insurance and life insurance. If you have significant assets or income then you should purchase higher limits to protect yourself and your family.

The insurance company will have a contractual right to control the defense, but no right to prevent the insured from retaining their own counsel. Therefore, it is the wise policy holder who receives a reservation of rights letter, that immediately hires personal counsel to handle not only the issues emanating from the reservation of rights letter, but to keep tabs on and participate in the defense being put on by the insurance company.

The reservation of rights letter also implicates the relationship between the insurer and its' policyholder with respect to the cooperation clause. Insurance companies expect that their insured will abide by the cooperation clause in the policy which mandates that policyholders provide information and comply with reasonable requests of the insurance company in order to evaluate the claim and provide a defense. Once a policyholder receives a reservation of rights letter, the policy holder may not be sure how to proceed or what is required under the cooperation clause. Fortunately, well established contract principles instruct that the policyholder's obligations under the cooperation clause are conditioned upon the insurance company's performance of its own contractual obligations. Therefore, where an insurance company interest diverge from the interest of a policyholder, the policy holder's duty to cooperate logically only runs to the defense of the claim which could terminate liability for both the insured and the insurance company. Such duty to cooperate should not run to the insurance company and the issues raised concerning insurance coverage.

The conflict can be heightened further if the insurance company completes its investigation and decides to rely on its reservation of rights and file litigation against its insured to declare that there is no insurance coverage. Fortunately, Missouri policy holders have the right to reject the insurance company's reservation of rights. This is a valuable right, because it forces the insurance company to choose whether they wish to fight the battle with their own insured, or if they will honor their contract, defend the case and fight liability and damages against the person suing their insured. This right serves policy holders by preventing insurance companies from putting off performance they have contractually obligated to perform, and subjecting the insured to a conflict of interest in which the insured is obligated to cooperate with someone who is looking to dump them and avoid their contractual responsibilities.

It is clearly important that an insurance policy holder understand the full ramifications of denying reservation of rights. If a policy holder denies a reservation of rights, the policy holder has the obligation to simply reject and proceed on their own or they could offer the insurance company the opportunity to continue its performance if the insurance company will withdraw the conditions leading to the reservation. Although individual policy holder situations vary, the choice to reject the reservation of rights is often the soundest choice for policy holders faced with a reservation. This is particularly true if the policy holder or their counsel has acted to appropriately limit claims brought by the plaintiff through the use of an alternative settlement arrangement. If, of course, settlement is not a viable alternative with the plaintiff, then the rejection of the reservation of rights would leave the policy holder with the obligation to defend itself as best it could and then sue for recovery of its costs and any indemnify from its insurer. However, because of the perceived conflict of interest that a policy holder may feel, an adequately financed policy holder may still choose this opinion as the best choice rather than by defended by an insurance company who is ultimately seeking to break its obligations.

Where settlement with the plaintiff is possible, such may be achieved by using a covenant not to sue or by complying with the provisions of Missouri Revised Statute Section 537.065 which allow the contracting parties to limit the collection of their suit to specified assets. Depending upon the nature of the allegations in the petition, the strength of the liability, and the extent and nature of damages suffered by the suing party, such restriction assets may include the policy or the policy in other specified assets. Other specified assets should be included if there is a potential for a bad faith claim for failure to settle a bad faith claim against the insurance company arising out of their handling of the claim or litigation. Nonetheless, a straight rejection or a rejection with an offer to allow continuing performance to an insurance company may provide just the remedy a policy holder needs to a reservation of rights letter.

Where the best interests of a policy holder are served by outright rejection of the reservations they should do so unequivocally and then proceed to defend the suit themselves or enter an appropriate settlement arrangement with the plaintiff to fully protect their own interests.

Where the policyholder is willing to accept the performance of the insurer if the insurer withdraws the reservation of rights, then the policyholder should make the insurer aware of this fact and give the insurance company a deadline within which to meet the demand. Failure of the insurer to meet the demand will result in a rejection of the reservation. It is also advisable that a policyholder who indicates a future willingness to accept performance should inform the company that if such performance is not undertaken by the insurance company within the time period, that a settlement or other arrangement with the claimant will be forthcoming and it's likely that the insurance company will be sued for breach of coverage, garnishment or bad faith as may be applicable to the particular fact situation involved. Such direct threats often motivate an insurance company to rethink their position, particularly if the liability is defendable, or their coverage position is weak.

Despite the distress associated with receiving a reservation of rights letter, policy holders can come out ahead when they receive reservation of rights letters. The key is taking control of the situation by hiring independent counsel, in appropriate situations rejecting the reservation of rights, taking control of the defense, preventing and where appropriate entering settlement agreements that protect the policy holders interests and shifting the conflict from a policy holder facing lawsuits from both the injured party, and its insurance company to absolving itself of both lawsuits and allowing the injured party and the insurance company to become the combatants. This process allows the policy holder who purchased the insurance coverage to obtain their ultimate desired goal when they purchased the insurance, to protect their assets and transfer risks, while at the same time allowing both the aggrieved party and the insurer to fight the battle of coverage at a later date.

Chris Faiella is a personal injury in Missouri with the law firm of Tatlow, Gump & Faiella, www.tgflaw.com

An insurance policy is a contract and therefore subject to general principals of contract law. Missouri law allows a contract to be reformed when by reason of fraud or mutual mistake the written contract does not express the actual agreement of the parties to the contract. Mills v. Camerson Mut. Ins. Co., 764 S.W. 2d 244, 249 (Mo. App. 1984). In cases of mistake the mistake must be mutual, but that does not mean the parties have to agree that the mistake was a mistake of both parties as long as the evidence shows that both parties were in fact operating under a misapprehension of fact or law, or bot. See State Farm Mut. Ins. Co. v. McGuire, 905 S.W. 2d 150 (Mo. App. W.D. 1995).
In essence what this legal doctrine allows is a showing that there was an joint objective or purpose arrived upon by agreement between the parties, but that the expression of that agreement in the written contract is flawed. The proof required for reformation is clear, cogent and convincing evidence. However, where the litigants present conflicting evidence about the actual agreement, a Missouri court is free to sort out the conflicts which only need be supported by competent and substantial evidence. CMI Food Services v. Hatridge Leasing, 890 S.W. 2d 420 (Mo. App. W.D. 1995).

There are a variety of ways that this theory can help policyholders who have been left out in the cold without coverage. The theory can help not only where the policyholder and company make a mutual mistake but also where a mistake occurs between an agent and an insurance company, because legally the policyholders mistake is being a party to the erroneous policy. If you are in a situation where you thought you had insurance coverage and your insurance policy does not reflect your understanding of the agreement at the time the agreement was made, don't give up. The insurance company is not the final word on justice.

This is a two part blog covering some things Missouri policyholders involved in a personal injury claim and who receive reservation of rights letters from their liability insurance company should understand. There is some good news, a reservation of rights letter means the insurance company is offering to pay your defense costs, but the bad news is that the insurance company is reserving its rights to deny coverage and sue you the policyholder or insured to obtain back the defense costs expended. Insurance companies often send reservation of rights letters to their policyholders because their broad duty to defend is implicated by the filing of a petition against their insured. Because the duty to defend is broader than the duty to indemnify there is a possibility the insurance company may be contractually obligated to pay for the defense even if it is not eventually required to pay for any liability alleged. In addition by asserting a reservation of rights letter, a company can undertake a defense and investigation of the claim and coverage at the same time and preserve its rights to disaffirm coverage without precluding itself from asserting defenses to the coverage at a later date, and managing their exposure to bad faith claims. Generally speaking to avoid waiving defenses, the letter will identify every possible coverage defense. Depending upon the individual facts, the doctrine of estoppel and/or waiver may prevent an insurance company from later asserting a defense that it failed to include in its reservation of rights letter. Unfortunately, reservation of rights letters are favorable for insurance companies, are fraught with danger for the policyholder. The mere issuance of reservation of rights letter indicates that there is a conflict of interest between the policyholder and the insurance company. This conflict of interest alone would advise that a policyholder should hire an independent attorney to represent them and not rely on the attorney appointed by the insurance company to provide a defense. Attorneys hired by insurance companies are often financially dependent upon the insurance company and that they receive much of their work from the company. While appointed defense counsel may diligently represent your interest in the alleged lawsuit, it is difficult to believe that that counsel can ignore their own financial interest, and give independent advice on your dispute with the insurance company. Most defense insurance counsel will defend the allegations in the lawsuit, but advise that you should hire personal counsel on the coverage issues. Unfortunately, there is often interplay between the allegations of liability and the triggers for coverage which are in dispute between the policyholder and the insurance company which lead to conflict of interest issues with insurance defense counsel. Bottom line, you should hire an independant lawyer to protect yourself. In part II, we will discuss the right of control, the duty to cooperate and the right to reject the reservation of rights. Chris Faiella is a personal injury lawyer in Missouri with the law firm of Tatlow, Gump & Faiella.