A woman injured in a motorcycle accident failed to make timely or proper claims against the myriad of insurance companies from which she might have otherwise been able to collect, resulting in the court’s dismissal of her pending claims.

motorcycle1 (1)The case of Barlett v. Commerce Ins. Co. reveals why it is so imperative to consult early on with an experienced auto accident attorney who can carefully review your case and make informed recommendations regarding your legal options.

According to court records, plaintiff was injured in a New York crash in 2004, when the motorcycle on which she was a passenger was struck by a car. The motorcycle was owned and operated by the insured of a policy issued by Foremost Insurance Company. That firm provided up to $250,000 of uninsured/underinsured motorist coverage per person.

The motor vehicle driver was insured under a liability policy issued by Allstate Insurance Company, which offered up to $100,000 in coverage per person.

Meanwhile, plaintiff also had three other insurance policies. The first was provided by Progressive Insurance Company, which provided up to $250,000 in UM/UIM coverage. The second was an auto insurance policy for up to $250,000 per person from Commerce Insurance Company. The third was also from Commerce, an umbrella policy that allowed for up to $1 million for a single UIM claim. Her own policies were issued in her home state of New Hampshire.

While being in a motorcycle accident is never a desirable thing, this plaintiff was fairly well-situated to recover damages for her injuries.

A month after the accident, plaintiff’s attorney requested information from the motorcycle operator’s insurance company, and notified both Progressive and Commerce plaintiff intended to file claims for UIM coverage.

It took years of wrangling with the car driver’s insurance company, but finally, the firm agreed to render its policy limit to the plaintiff – $100,000. Plaintiff’s attorney notified the other insurance companies, and asserted that under New York state law, the companies either had to grant plaintiff permission to collect on that policy or pay her that amount within one month.

However, the law plaintiff attorney cited didn’t apply to any of the other insurance companies. The only company that responded to that request was Commerce, and it did grant plaintiff permission to collect on that $100,000 claim.

Then in 2011 – six years after the crash – plaintiff sued Commerce, Progressive and Foremost. None of the insurance companies disputed that each policy provides UIM coverage, that the accident and plaintiff’s injuries fall within the provisions of each policy, that Foremost was the main insurer while the other two were “excess” insurers and that plaintiff had to exhaust each layer of coverage before the next could be triggered.

Defendants move for summary judgment and plaintiff cross-appealed for a declaratory judgment.

Trial court first ruled the claim against Foremost was untimely, falling outside the state statute of limitations for UIM claims. It then ruled Commerce was required to “drop down” to provide primary coverage to plaintiff (for her first $250,000 in damages). The court further ruled Progressive was next in line, and would have to provide any excess coverage.

Later, the trial court reconsidered the claim against Progressive, and ultimately agreed plaintiff forfeited her right to collect anything from Progressive when she took the settlement with Allstate absent Progressive’s consent.

Finally, the court ruled Commerce had to provide under its umbrella policy any damages in excess of what was already paid.

All-in-all, this wasn’t horrible for plaintiff, and it still seemed she would be able to recover a significant portion of damages.

But then, on review from the New Hampshire Supreme Court, much was undone.

The court affirmed the dismissal of the Foremost claim for untimely filing and the claim against Progressive for failure to obtain consent before settling with Allstate. However, it reversed the finding that Commerce had to drop down to provide primary coverage.

While no one initially disputed Commerce was the provider of excess coverage, there was a clause in the policy that allowed for it to “drop down” to provide primary coverage if primary coverage from the other insurer was neither available nor collectible. The court found those terms ambiguous, but even interpreted in the light most favorable to insured, the reason the policy was not available or collectable was because plaintiff didn’t timely file her claim for coverage, a failure that was deemed unreasonable.

So in essence, failure to act timely and properly in filing one insurance claim had a domino effect on the others.

This is why it is so important to consult with an experienced legal team following a serious traffic accident.

If you have been a victim of a Fort Myers traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Report: Ignition Interlock Could Slash DUI Fatalities by 80 Percent, April 10, 2015, Fort Myers Motorcycle Accident Lawyer Blog