Louisiana attorneys handling personal injury claims against uninsured/underinsured motorist (UM) carriers will often encounter “exclusions” to coverage found in the insurance policies issuing UM coverage. However, not all exclusions are valid. Some violate public policy, and some are not written narrowly and clearly enough. The following sections should help attorneys and insureds evaluate and handle insurance companies’ defenses to providing UM coverage based on exclusions.
- Benefit of Workers’ Compensation: UM policies often state that UM insurance does not apply to the “direct or indirect benefit of any insurance or self-insurer under any workers’ compensation, disability benefits or similar law.” This type of exclusion often helps the injured plaintiff because it prevents another insurance company from asserting a lien on money otherwise due the plaintiff.
- Occupying an Owned but Not Covered Vehicle: UM policies often state that UM insurance does not apply to “bodily injury sustained by an insured while occupying any vehicle owned by that insured that is not a covered auto.” This exclusion prevents a person with UM coverage on one vehicle from using UM coverage when he or she is occupying another vehicle that he or she owns but is not listed on the policy that provides UM coverage. Also see La. R.S. 22:1295(1)(e) (UM does not apply to bodily injury “while occupying a motor vehicle owned by the insured if such a motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle under the terms of the policy”).
- Non-Permissive User of a Vehicle: UM will not apply to “bodily injury sustained by you, a relative, or a rated resident while using any vehicle, other than a covered auto, a rental auto, or a temporary substitute auto without the express or implied permission of the owner of the vehicle.” Thus, you will likely not be able to use the UM insurance on a car that you do not have the owner’s permission to occupy at the time of the accident.
- Punitive Damages: UM policies typically exclude punitive and exemplary damages. Where that is the case and the defendant driver that caused the accident was intoxicated at the time of the accident, you will not be able to receive punitive damages as the result of the driver’s intoxication, even if the intoxication caused the accident.
- Regular Use Exclusion: UM will not apply to “bodily injury sustained by any person while using or occupying a motor vehicle that is owned by or made available for the regular use of you a relative, or a rated resident.” See my previous article on the regular use exclusion to Louisiana UM.
- Intentional Acts: UM policies exclude coverage for accidents caused by someone intentionally as opposed to negligently.
- Specifically Excluded Vehicles: UM policies typically exclude coverage when the offending vehicle is one of the following: a) designed for operation on rails (e.g., train tracks); b) a self-insured vehicle (unless the self-insurer becomes insolvent); c) designed for use on public roads while operated off road; and, d) located for use as a residence or premises at the time of accident (e.g., a trailer home).
Exclusions Must Be Clear and Cannot Violate Public Policy
When reviewing a UM policy’s exclusions, which may hurt your case, be creative and think of arguments that may invalidate the exclusion(s). Policy exclusions cannot violate public. See Cutsinger v. Redfern, et. al., 2008-C-2607 (La. 5/22/09), 12 So. 3d 945 (“It is well-settled that an insurer may limit liability and impose reasonable restrictions upon its policy obligations provided that such limitations do not conflict with statutory provisions or public policy”). Exclusions must be express. Bubrig v. Phoenix of Hartford Ins. Co., 306 So. 2d 60 (La. Ct. App. 4 Cir. 1974). Any exclusions from UM coverage must be clear and unmistakable. Elliot v. Cont’l Ca. Co., 949 SO. 2d 1247, 1254 (La. 2007).
Tips on Dealing with Exclusions
Always request a copy of the entire policy that you believe provides UM insurance. Check the exclusions section. Determine what exclusions are stated in the policy and determine if any apply to the facts of your accident. If so, is there an argument that invalidates the exclusion? Be creative. Determining whether you will likely be able to utilize UM coverage in the beginning of the case is important. It will indicate how much you will be able to spend on your case. Also, check with the UM adjuster early and get a feel for whether the UM insurer feels that it has a defense against awarding UM benefits.
The above is intended for information purposes only. It should not be construed as legal advice. If you have additional questions about exclusions in UM insurance policies, please contact Metairie personal injury attorney, Lawyer Don D’Aunoy Jr. His office is in Metairie. However, he represents clients throughout southeast Louisiana. His consultations and house calls are FREE. He can be reached at 504-508-6414. Attorneys are also welcomed to call him for advice. Lawyer Don is a frequent speaker at legal seminars. Check his firm’s Facebook and Blog for a list of his upcoming speaking engagements.