For two years, Lesley Wilks had car insurance from State Farm, which she obtained through the Manobianco Insurance Agency. Her policy included liability and both uninsured motorist and underinsured motorist coverage.
Wilks later replaced the State Farm policy with a policy from another insurance company. A year later, she decided to switch back to State Farm. When doing so, Wilks asked Manobianco to obtain “the exact same coverage that [she] had previously, full coverage.” Manobianco did not look up Wilks’s prior coverage and procured insurance that did not include underinsured motorist coverage. In the course of signing several insurance forms, Wilks signed a form document which had been filled out by Manobianco to reject underinsured motorist coverage.
Several years later, Wilks was rear-ended by an underinsured driver. State Farm denied the underinsured motorist claim she made under her policy. Wilks then sued Manobianco for malpractice for failing to procure the insurance coverage she had requested.
HOW TO AVOID LESLEY WILKS’ FATE
Wilks v. Manobianco raises an all too common problem: one of the first questions I ask personal injury and business clients when they have been in a crash or suffered a loss or claim is whether they have insurance. However, oftentimes the answer is “I don’t know” or “Yes, but I don’t know how much or what my insurance really covers.”
Many individuals and businesses do not pay attention to insurance until an unforeseen event occurs. Then, they rush through their drawers, files, and closets to search — and hope — for an insurance policy which covers their loss.
This article is a call for individuals and businesses to understand the importance of insurance and conduct an immediate self-audit to ensure that they have adequate coverage. A small amount of effort and thought can reap large dividends.
A LITTLE KNOWLEDGE GOES A LONG WAY
It is not uncommon for car crash victims to be hit by a driver who is either underinsured or has no insurance whatsoever. Typically, such drivers do not have enough assets to satisfy injury claims. It would seem that such a client is out of luck — with no means of collecting damages from the person that hit them. Such is not the case if the person bought uninsured or underinsured motorist insurance coverage.
Uninsured motorist coverage protects you if you’re in an accident with an at-fault driver who doesn’t carry liability insurance. Underinsured motorist coverage, on the other hand, steps in when you’re in an accident with an at-fault driver whose liability limits are too low to cover the damage or medical expenses.
Over the last several weeks alone I have encountered no less than three situations where underinsured motorist coverage, or the lack thereof, was a client’s sole means of being made whole as a result of being hit by an underinsured driver.
To understand the importance of underinsured coverage, here is an example: assume that your case is worth $200,000, but the negligent driver only has $100,000 of coverage. In that case, you can make an underinsured driver claim against your own insurer as long as you have more than $100,000 in underinsured driver coverage. If you had $150,000 in underinsured driver coverage, you would settle with the negligent driver for $100,000, and would settle with your insurer for $50,000. You cannot take the negligent driver’s $100,000 policy and another $100,000 from your policy. You can only take from your policy that amount that exceeds the negligent driver’s coverage.
DEALING WITH YOUR INSURANCE AGENT
Arizona law requires insurers to offer uninsured motorist and underinsured motorist coverage to their insureds. Insurers may prove compliance with the statute by having their insureds sign an Arizona Department of Insurance approved form selecting or rejecting such coverage.
It is therefore critical to carefully review all forms you are asked to sign when obtaining new insurance or update an existing policy.
Avoid a Wilks v. Manobianco scenario: understand the importance of every form you sign and obtain an adequate amount of uninsured and underinsured motorist coverage.
TYPES OF BUSINESS INSURANCE TO CONSIDER
Here are types of insurance that businesses should consider obtaining:
- General Liability Insurance: The type of policy provides both defense and damages if you, your employees or your products or services cause or are alleged to have caused bodily injury or property damage to a third party.
- Property Insurance: This kind of policy typically covers office equipment, computers, inventory or tools due to fire, vandalism, theft, smoke damage etc.
- Business owner’s policy (BOP): A business owner policy packages all required coverage a business owner would need. Often, BOP’s will include business interruption insurance, property insurance, vehicle coverage, liability insurance, and crime insurance . Based on your company’s specific needs, you can alter what is included in a BOP. Typically, a business owner will save money by choosing a BOP because the bundle of services often costs less than the total cost of all the individual coverages.
- Commercial Auto Insurance: This policy protects a company’s vehicles. You can protect vehicles that carry employees, products or equipment. With commercial auto insurance you can insure your work cars, SUVs, vans and trucks from damage and collisions. If you do not have company vehicles, but employees drive their own cars on company business you should have non-owned auto liability to protect the company in case the employee does not have insurance or has inadequate coverage. Many times the non-owned can be added to the BOP policy.
- Directors and Officers Insurance: This type of insurance protects directors and officers of a company against their actions that affect the profitability or operations of the company. If a director or officer of your company, as a direct result of their actions on the job, finds him or herself in a legal situation, this type of insurance can cover costs or damages lost as a result of a lawsuit.
- Data Breach: If the business stores sensitive or non-public information about employees or clients on their computers, servers or in paper files they are responsible for protecting that information. If a breach occurs either electronically or from a paper file a data breach policy will provide protection against the loss.
- Professional Liability Insurance: This type of insurance is also known as errors and omissions insurance. The policy provides defense and damages for failing to or improperly rendering professional services. Professional liability insurance is applicable for any professional firm including lawyers, accountants, consultants, notaries, real estate agents, insurance agents, hair salons and technology providers, among others.
The Southwest leads the nation in uninsured motorists, with New Mexico at a staggering 29% and Arizona not far down the list at 18% (see the graphic below).
Given these depressing numbers, be sure to have a plan when you walk into your agent’s office to buy insurance. Understand what you sign. Your financial future may depend on your preparation and diligence.
For further information on personal injury claims, obtaining insurance or making insurance claims, and general tort and commercial matters, contact Art Bourque at Bourque Law Firm.