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Georgia Uninsured Claim
I was involved in an no fault auto accident 4/6/07. The other driver's insurance company has agreed to settle for $100,000 the policy limit.
Am I able to sue my own insurance company for additional monies to cover bills. My policy for uninsured motorist is $50,000 per person/$100,000 per accident.
My attorney is telling me that I can't file a claim with my own insurance company.
I beliveve my attorney agreed to the following in his settlement letter on my behalf- "This letter is also provided for your insured's use as evidence in any direct action against your automobile insurance company following judgement in this case in excess of policy limits.
Our offer is made to eliminate all exposure to your insured, and would anticipate you would notify your insured of this." Please tell me what all this means.
Is my attorney for going my right to file a claim for uninsured (underinsured) motorist?
I don't have enough information to give you an answer. Who's letter are we talking about. Is this from their insurance company to you, or your own insurance company to you? The best advice is always of your own attorney. They know all the facts and they will do everything to get the best result for you.
I will outline what generally happens, but again, your circumstance might be very different and the only person that can answer is your lawyer.
The "usual" and "normal" process is that you go after the person that cause the accident, if they have insurance then you collect from that insurance company, you can exhaust their policy limits and then go after that person's personal assets or your own uninsured or under insured policy. However, (this is where it gets difficult)
The other person's insurance company will not settle unless you give them a release of any and all claims. This is an agreement (a contract) were you give up any rights against this person because of the accident.
This would essentially bar you from going after any of his/her assets above and beyond the policy limits. This also means that you would destroy the "right of subrogation" of your own insurance company (something you cannot do or you void your policy).
Visit http://www.auto-insurance-claim-advice.com/Subrogation-of-Rights.html for more information about subrogation of rights.
If you settle, you are saying "this person has paid me and I am done", in exchange they will give you their policy limits. You cannot recover from your own carrier because they cannot go after the person that hit you, that person had been completely released by your previous agreement, so your insurance company will not be able to go after him or her (will not be able to subrogate).
So why would sometimes a settlement be a good idea? Basically because the first insurance company (the other's person) will not give you policy limits unless you agree to the release. That insurance company has a very strong duty to protect their own client.
If they don't, they can be suit for bad faith and all sort of other claims by their own client. This money is the only "leverage" they have to "save" their own insured. They will not settle unless you sign this. They also cannot give you more money as the policy limit is stated.
Your own uninsured policy will not pay unless you show that his/her policy was first exhausted. So you are in a bind.
The most common option to get out of this bind is to go to trial. You would have to prove that your damages were over 100K, get a judgment against that person, get their policy limits, and then go for whatever above and beyond the his/her policy did not pay against your own policy.
The problem is that going to trial and getting a big award like that one can be very difficult. Again, I have no way of knowing what kind of injury or situation you are in, only your lawyer knows, so they are the best people to ask.
What I do know is that trials are very expensive and sometimes if you do not have a very strong case then you could end up loosing more at the end.
Say you go to trial and the judgment is 80K, then you would have to pay your attorney at trial rates (higher than normal) and you would only get 80K, at that point the 100K offer is of the table, so you end up with less. This is a benefit cost or risk analysis. Only your attorney really knows.
I hope I was able to answer your question.
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