As we explained in the prior blog post, you are required to seek permission of any underinsured motorist carrier PRIOR to acceptance of the at fault driver’s insurance policy. If you do not notify and get permission of your underinsured motorist carrier in Florida to accept the settlement and you accept the settlement, you may NOT be able to make the underinsured motorist coverage claim. The reason why is as follows. First, generally, under a Florida uninsured motorist policy, the insurance company has a subrogation right to sue the at fault driver when it has to pay uninsured motorist benefits. This means the insurance company can sue that driver, just as you would be able to, to recover the monies it pays to someone under an uninsured motorist case. It’s right is generally contractual but flows through you, the injured person. So if you don’t have a case against the at fault person, neither does the insurance company who pays the uninsured motorist benefit. However, when the other person has insurance, but not enough, in order to settle, they will require a release which will extinguish the underinsured motorist carriers subrogation rights if signed. Thus, if you sign the release against the other driver in exchange for its policy limits, then the underinsured motorist carrier cannot pursue that interest. Thus, the law requires the underinsured motorist carrier to decide, in 30 days, whether to waive its subrogation rights and allow you to accept the monies or to cut you a check for the same amount and thus retain their subrogation rights. In that later scenario, you get a check for the same amount and you must return the check to the at fault insurance company. Again, the general idea here is that you should have a lawyer look at your case before you accept even a full policy tender to determine whether there is any underinsured motorist coverage.
Of course, every case is different and unique and has to be judged based on the specific facts. The advice in this personal injury blog is intended to be general in nature and should not to be construed as specific advice for your case, as a slight difference in the facts could ultimately change the result. Also, this blog is based on Florida law and the laws of any other states or another country could vary significantly from Florida.
