Is this normal timing for UIM case?

[TXSponger]

What is the name of your state? Texas

I'm wanting to know if what I'm going through is typical for an UIM case and if there is anything that can be done to make things go faster.

Here are the facts/dates:

• Nov 2018 - car accident occurred
  • Other driver was 100% at fault per police report. I wasn't driving.
  • Taken to hospital via ambulance with several bi-lateral broken ribs and many other very painful but less severe injuries
  • Spent 17 days in ICU/trauma unit
  • Spent additional three weeks in skilled nursing/rehab
• Other driver had insurance with minimal coverages. I carry UIM with decent additional coverage
• late 2019 - attorney filed claim with driver's insurance co who promptly paid out full policy limits
• late 2019 - attorney filed UIM claim with my insurance company
• Feb 2020 - had deposition
• March 2020 - mediation scheduled
  • mediation cancelled days before it was to occur
  • tried to reschedule mediation for summer but OP never responded
• Sep 2020 - mediation finally occurred
  • opposing counsel admitted they had not discussed the case with any experts nor have they had any medical examination of the medical records. No settlement offer given.
• Sep 2020 - Jul 2021 - we repeatable tried rescheduling additional mediation once OC were prepared. very little interaction was provided.
• Sep 2021 - rescheduled mediation
  • mediation again was cancelled just before it was to occur

I'm nearly 80 years old, have alzheimer's which is starting to progress, and my general health has deteriorated since the accident. It seems like the other side just wants to wait for me to expire. Is this typical? can anything be done to pressure the insurance company or would any threats just be a paper sword?

Thanks

 

[Zigner]

Since you are represented, you really ought to push your attorney to push this matter with the insurance company.

 

[TXSponger]

quick response. thanks!

we are pressing. based on what others see in this forum, I wasn't sure if this timing was typical or seemed more like delaying tactics or both.

 

[zddoodah]

Whether what's happened in your unique case is or isn't "typical" is meaningless.

You wrote that the accident occurred in November 2018 but that your attorney didn't file claims with either the other driver's insurer or your own insurer until "late 2019" (basically a year later). Why the delay?

Also, when you say "filed claim," are you talking about a lawsuit (or lawsuits)?

You referred to "OP" and "OC" without being clear what those mean. Around here, "OP" refers to "original poster," but I assume that's not what you meant.

The statute of limitations in Texas is two years, so I hope you filed suit not later than November 2020. If so, it's not clear to me why you're repeatedly trying to mediate. After one failed mediation, it's not clear why you wouldn't push to go to trial.

Bottom line: you need to speak with your attorney about getting the case moving toward trial (since your insurer is seemingly uninterested in moving things along).

 

[Zigner]

quick response. thanks!

we are pressing. based on what others see in this forum, I wasn't sure if this timing was typical or seemed more like delaying tactics or both.

I really suspect this is a delaying tactic, perhaps rooted in a small bit of necessary delay.

 

[TXSponger]

we got the attorney in mid-2019. prior to that, I had a lot of other personal family things going on and didn't prioritize the accident. Prior to engaging the attorney, the driver's insurance co made a settlement offer of a couple of thousand $s so then I got the lawyer.

We filed a lawsuit after we engaged the lawyer. Sorry about the typo...meant "OC" (opposing counsel).

thanks for the answer. I was hoping to avoid trial given my age and thought that could take several more years but I guess we should push that.

 

[zddoodah]

I was hoping to avoid trial given my age and thought that could take several more years but I guess we should push that.

I can't even conceive of why a relatively simple lawsuit against a UIM insurer would take "several . . . years" to go to trial (much less "several more years"). Also, perhaps my state is unique in this regard, but my state gives cases involving folks over a certain age (not sure what the number is but it's certainly less than 80) or who have significant medical issues priority in trial setting. Something else to discuss with your attorney.

 

[Ohiogal]

I will say you ran smack into a pandemic and courts in many areas basically shut down for a while and many attorneys and other industries/clients were delayed. Is your situation normal? Maybe not.. but pandemic normal? Probably.

 

[adjusterjack]

Prior to engaging the attorney, the driver's insurance co made a settlement offer of a couple of thousand $s so then I got the lawyer.

We filed a lawsuit after we engaged the lawyer.

Correct me if I am wrong but I may have this figured out.

Initially you were dealing with the other driver's insurance company. You were offered a pittance. You retained an attorney who filed suit against the other driver. The other driver's insurance company settled for policy limits so that lawsuit was dismissed.

Your attorney, on your behalf, filed a UIM claim with your own insurance company and subsequently attempted to engage in mediation. I think you are engaging in arbitration, not mediation, as the Texas UIM section of an auto policy has an arbitration clause. My copy may or may not be current.

Since arbitration meetings do not occur in a courtroom I'm not sure I see the delays being excusable due to Covid. Frankly, i agree that your insurance company is intentionally delaying arbitration. If that is true your insurance company is in breach of contract and possibly in bad faith.

Please take out your policy and thoroughly read the UIM arbitration section and go over it with your attorney. It might be time to file suit against your own insurance company.

 

[zddoodah]

If that is true your insurance company is in breach of contract and possibly in bad faith.

If I'm not mistaken (and I could be) a UM/UIM claim is treated as a third-party claim. If that's right, does Texas recognize third-party bad-faith claims?

 

[quincy]

Third party claimants cannot pursue bad faith insurance claims in Texas. See Allstate Insurance Company v. Kathleen G. Watson.

 

[quincy]

Here’s a link to the Texas Supreme Court Opinion:

https://casetext.com/case/allstate-ins-co-v-watson

 

[adjusterjack]

If I'm not mistaken (and I could be) a UM/UIM claim is treated as a third-party claim.

I don't think so. It's a claim against one's own insurance company.

In fact the case decision posted by Quincy says:

"A third party claimant has no contract with the insurer or the insured, has not paid any premiums, has no legal relationship to the insurer or special relationship of trust with the insurer,..."

TXSponger has a contract with his/her insurer, has paid premiums, has a legal relationship with his/her insurer. The insurer has a contractual obligation to provide the UIM coverage just like any other coverage on the policy. A dispute about UIM is no different than a dispute about the Comprehensive or Collision coverage. That covers the breach of contract issue.

With regard to the bad faith issue see Arnold v. National County Mutual Fire Insurance Company in which the court imposed a common law duty of good faith and fair dealing in an Uninsured Motorist claim against Arnold's own insurance company.

Arnold v. Nat. County Mut. Fire Ins. Co., 725 SW 2d 165 - Tex: Supreme Court 1987 - Google Scholar

Whether or not TXSponger could prevail in a lawsuit against his/her own insurance company for breach of contract and bad faith is anybody's guess but the potential for the lawsuit is certainly there.