By Paul R. Kiesel, Esq.

At the outset, the first question when you are faced with a possible Uninsured Motorist claim is to determine whether or not the defendant really is not insured. This is often accomplished by sending a simple letter to the defendant requesting insurance information. If there is no insurance, and the defendant mails you back this information, this will provide a declaration from the defendant that he or she is not insured, thereby allowing you to file the necessary claim for uninsured motorist coverage. However, you cannot, in many cases, simply rely upon the representations made by the defendant of non-insurance status and, therefore, you need to make an appropriate filing with the Department of Motor Vehicles to fully determine and authenticate the defendant's insurance status.

The first document to be filed with the Department of Motor Vehicles is the SR-1 form. The SR-1 is to be prepared and filed with the Department of Motor Vehicles any time there is a motor vehicle collision which involves either property damage in excess of $500.00 and/or personal injuries. Failure to file a Form SR-1 can, in fact, lead to a suspension of the driving privileges of your client. Forty-five (45) days after the filing of the SR-1, the Department of Motor Vehicles' Form SR- 19 should be filed. The Form SR- 19 is a request for the Department of Motor Vehicles to issue uninsured motorist certificate from the State of California. With this certificate, you will have conclusive proof to provide to your client's insurance carrier regarding the uninsured status of the defendant. Obviously, in the event your claim arises out of an underinsured motorist situation, you would simply have to provide evidence to your client's insurance company regarding the policy limits of the defendant and how, if at all, those limits are below the actual value of your client's injury claim. (This area of uninsured motorist law is fairly detailed and, for that reason, will not be discussed herein. However, for a more detailed discussion of the inter-relationships between uninsured and underinsured motorist claims, see California Trial Lawyers Association Forum Vol. 21, No. 4, May, 1991 "Uninsured and Underinsured Law in California: Controversy, Confusion and Conflict.")

Assuming you have now been able to establish the uninsured and/or underinsured status of the defendant, the next significant event in your client's case will be protecting the statute of limitations and, if it is necessary, pursuing an uninsured motorist claim. Most insurance policies which are, today, written in California, require that a lawsuit be filed against the uninsured and/or underinsured defendant. The only exception to the filing of the lawsuit would be in the situation where a case is settled with a defendant based on an underinsured motorist claim, and for which settlement a release is given. Otherwise, it is good practice, regardless of whether it is required by the policy, that a lawsuit be filed against the uninsured defendant.

At the time of the filing of the action, careful consideration should be taken as to the venue sought. You should always remember that filing in Municipal Court is less expensive for the client and that, despite the extent of the client's injuries, the case could always be transferred to Superior Court. An important pointer is that the caption of the complaint should, just above the case number, read UNINSURED MOTORIST ACTION. Ibis is because most courts exempt an uninsured motorist claim from the delay reduction calendar and the specific time table which increasingly govern the prosecution of civil cases. The courts recognize that it is not likely that uninsured motorist cases will proceed as do other cases, and that the chances of the complaint actually being served upon the defendants is minimal. The purpose of the complaint is simply a procedural matter designed to protect any future claims of plaintiff(s) which may exist. It is also necessary to send a courtesy copy of the complaint to the client's insurance company, thereby providing notice to them that a lawsuit has been filed and the statute of limitations, vis-à-vis the uninsured defendant, has been protected.

The last point concerning service of the complaint on the client's insurer is important. Be aware that most insurance policies now require that notice of the lawsuit having been filed be served on them. Therefore, it is not enough to simply file the lawsuit and maintain it in your off ice without notification to your client's insurance company of your having filed suit to protect the statute. Contemporaneous with the filing of the lawsuit, it is also necessary to "Demand Arbitration" from the insurance company. This can be done simply by including the words at the top right margin of your letter DEMAND FOR ARBITRATION. This letter should simply indicate that, pursuant to the terms of your client's insurance contract, you are demanding arbitration in light of the uninsured status of the defendant. This should also be done if your claim is one involving underinsurance. The letter should simply set forth the reasons you are seeking the application of this provision of your client's policy. This does, by no means, mean that your client's claim will be arbitrated. However, by submitting the demand for arbitration, you are simply protecting the client's claim and preserve the claim within the statute of limitations. The letter demanding arbitration must be mailed via Certified Mail, Return Receipt Requested. This enables you to, if necessary, establish proof of service of the demand upon the insurance company. Remember, any Demand for Arbitration is required to be made within one year of the date of loss. Any claim made after one year of the date of loss is time barred and the results are similar to blowing the statute of limitations.

Having discussed the mechanics of the claim, let us look at the actual Uninsured Motorist claim and the issues it presents. This type of claim presents an interesting issue. On the one hand, your client is required to provide a statement to the insurance company regarding the facts, circumstances and injuries sustained in the motor vehicle collision. On the other hand, in the event the matter does not settle before a Demand for Arbitration is made, your client's insurance carrier is certainly entitled to take a deposition of your client. In many ways, the carrier has two bites at your client. One way to minimize this is to simply to demand arbitration at an early date, whether or not this is appropriate, and indicate that the statement should take the form of a deposition. This limits the form of access to your client and also circumvents the ability of the insurer to first take a "statement" and later depose the client. Having said this, however, it is often not a practical option. You should recognize, therefore, that there may be two opportunities which the carrier has to take a statement under oath from their insured / your client.

The next step in the prosecution of the uninsured motorist claim is the discovery phase. Discovery is permitted in uninsured motorist claims just as it would be in third-party claims. If there is a need to make a motion to compel further responses, however, you should be aware that a filing fee must be posted with the court on the filing of the motion itself. The fee would be an appearance fee similar to that filed when a lawsuit is filed. The court does, however, have jurisdiction to issue orders compelling responses to discovery.

Once discovery has been completed, the case is ripe for arbitration. Typically, the insurance carrier's counsel will propose a list of judges for your consideration and from which you are to select the individual who will preside at the hearing of the case. Note, you may similarly pose a list of judges for the insurer to consider. The Consumer Attorneys Association of Los Angeles maintains an active database of some 300 retired judges, arbitrators and mediators who are available for the hearing of these types of actions. It is strongly recommended that you examine the background and judicial proclivities of the jurists proposed by the defense and/or be familiar with the profile of the judges proposed by your office prior to your selection of a mutually agreeable hearing officer. Unfortunately, there is often a breakdown in communication between the client's insurance company and your office in finding a mutually agreeable arbitrator. In the event you are unable to arrive at an acceptable mutual hearing officer, a motion to compel arbitration and selection of an arbitrator can be filed with the court. As with discovery disputes, if no appearance has been previously filed with the court, a filing fee must be posted, a case number assigned, and a hearing date set. At that time, the court will typically follow the arbitration rules of the Superior Court in having an arbitrator selected. Once discovery has been completed and your client's medical treatment has reached a permanent and stationary level, you are in a position to have the claim arbitrated. Typically, the hearing officer is not told of the maximum amounts available under the insurance policy, and either side is free to argue the nature and extent of the full damages suffered by the plaintiff / claimant. The rules of evidence at the time of the hearing are liberally applied and, typically, are within the discretion of the individual hearing officer. At the time of the arbitration, should you wish, you have the ability to subpoena witnesses to the hearing and, usually, the subpoenas may be obtained from the hearing officer himself.