An attorney or personal injury victim representing him or herself should keep several factors in mind when filing a lawsuit against an insurance company to enforce UM benefits.
A lawsuit against a UM carrier must be filed in a proper venue (parish). A lawsuit against a UM carrier is to enforce rights under a contract. “An action on [an insurance policy] may be brought in the parish where the loss occurred or the insured is domiciled.” La. CCP art. 76; also see Gaspard v. Louisiana Farm Bureau, 96-C-2148 (La. App. 4 Cir. 11/06/96), 684 So. 2d 55. The “insured” under a UM policy “refers to the person seeking to recover under the policy.” See Tardiff v. Valley Forge Ins. Co., 99-CC-2815 (La. 12/17/99). Thus, it is the domicile of the plaintiff filing the lawsuit and claiming benefits under the UM policy that is relevant for purposes of venue, not the domicile of the person or company that purchased the UM policy.
Venue for a lawsuit against a UM carrier is also appropriate in any venue proper for solidary obligors. The domicile (parish of residence) of a tortfeasor (the person or company causing the accident) is also an appropriate venue for a lawsuit against a UM carrier because the UM insurance company is obligated to pay the same damages owed by the defendant driver (torfeasor).
Let’s apply the rules to some sample facts. There is a Kenner car accident involving two vehicles. Vehicle 2 is rear-ended by Vehicle 1. Vehicle 2’s passenger resides in New Orleans. Vehicle 2’s owner purchased a UM policy for Vehicle 2. Vehicle 1’s driver is domiciled in Laplace. A lawsuit against the defendant driver and Vehicle 2’s UM carrier can be filed in the following parishes: Jefferson, Orleans and St. John the Baptist. If a lawsuit only against the UM carrier is to be filed, the lawsuit can only be filed in Orleans Parish or Jefferson Parish under these facts.
The petitioner (person filing the lawsuit) should name the tortfeasor(s) (defendant driver), tortfeasors’ insurer(s), tortfeasors’ employer(s), and plaintiff’s UM carrier(s). Allege a “solidary relationship” between the named defendants. See Wimberly v. Zeta Home Health Care, Inc., et. al., 07-CA-559 (La. 5 Cir. 11/27/07), 973 So. 2d 75 (suit filed in improper venue with service on some solidary obligors within one year interrupted prescription as to other named defendants not served within one year when case was later transferred to proper venue). Do not name plaintiff’s employer in a tort suit when you are naming the employer’s UM.
Allege Bad Faith in the Petition where Applicable
Allege the specific facts that gave rise to the bad faith claim. What did the carrier do? Did it fail to issue an unconditional tender after receiving adequate proof of loss and insufficiency of the underlying liability policy to pay the claim? Did carrier fail to make a reasonable attempt to settle the UM claim?
Remember: “An insurer owes its insured a duty of good faith and fair dealing. As such an insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims.” Daniels v. Imperial Fire and Casualty Ins. Co., 47,572 (1/16/13), 109 So. 3d 32, citing La. R.S. 22:1973(A). Allege bad faith under La. R.S. 22:1892 and La. R.S. 22:1973.
Prescription (Statute of Limitations)
The prescriptive period (statute of limitations) for UM claim is 2 years from the date of accident. See La. R.S. 9:5629. Thus, a UM lawsuit must be filed within two years of the accident date. However, payment of an unconditional tender by the UM insurer to the plaintiff interrupts prescription, which starts anew from the date the payment is made. See Demma v. Automobile Club Inter-Insurance Exchange, 2008-C-2810 (La. 6/26/09), 15 So. 3d 95. Furthermore, a timely filed lawsuit by an accident victim against the tortfeasor (i.e., negligent driver) interrupts prescription against that victim’s UM carrier because the tortfeasors and the victim’s UM carrier are solidarily liable under the Civil Code. See Hoefly, supra, 418 So. 2d at 579 and La. CC art. 1794.
Once a lawsuit to enforce UM insurance rights is filed in a court of proper jurisdiction, prescription is interrupted and the claim is preserved. La. CC art. 3462. However, if a lawsuit is filed in an improper venue, prescription is only interrupted if service of the lawsuit is made on solidary obligors before the prescriptive period runs.
The above is intended for information purposes only. It should not be construed as legal advice. If you have additional questions about procedure and practice relating to filing personal injury lawsuits and UM, 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 welcomed to call him as well. Lawyer Don is a frequent speaker at legal seminars. Check his firm’s Facebook and Blog for a list of his upcoming speaking engagements.