What Law Enforcement Needs to Know About Auto Injury Insurance
GRANT WINTER
Managing Attorney
Mastagni Holstedt, APC
BRANDON GOMEZ
Associate Attorney
Mastagni Holstedt, APC
PORAC LDF beneficiaries are constantly driving patrol vehicles while on duty and preventing crime. It is a natural consequence that patrol officers are more likely to experience on-duty motor vehicle accidents since they spend more time on the road.
“In the last 10 years, on average, an officer per week has been killed on our nation’s roads (2011–2020 = 50 deaths per year). Most years, motor vehicle-related incidents — including crashes and being struck by moving vehicles while on foot — are the main cause of death for officers.”1
In the case of an on-duty motor vehicle accident, officers are entitled to pursue a third-party claim against the at-fault driver and that driver’s automobile insurance. However, what happens if the at-fault driver is uninsured (UM) or underinsured (UIM) at the time of the accident? The PORAC LDF member could be deprived of a source of recovery to compensate them for their damages.
Don’t find yourself without personal UM or UIM coverage against which you can make a claim to cover the unrecouped damages.
UM/UIM’s Application to On-Duty Accidents
Officers are frequently surprised when they learn it’s possible to make a claim against their own insurance for an on-duty accident. The general rule is that absent an express exclusion written into the policy, UM and UIM coverage applies to an on-duty accident just like any other. It generally does not matter that the officer was driving a car other than his or her own personal vehicle because the coverage is triggered by the at-fault driver’s lack of sufficient coverage, not the vehicle the officer was driving. However, some policies do exclude on-duty accidents. For example, policies may sometimes explicitly exclude UM/UIM claims for accidents that occur while within the course and scope of employment, while operating a vehicle owned by a government agency, while operating a vehicle in response to an emergency, if their employer’s automobile insurance provides the insured with UM/UIM coverage and more. It is of vital importance that officers read their policy thoroughly and address any exclusions that may bar employees from pursuing a UM or UIM claim for an on-duty accident.
In a real-life situation, Mastagni Holstedt, APC, represented a PORAC LDF member who had been injured in an automobile collision in his patrol car on the job. Even though the responsible third-party driver only had a small bodily injury insurance policy, Mastagni was able to help the PORAC LDF member recover more money by pursuing a claim against the member’s own UIM motorist insurance. The member and his family were much closer to being made whole than if there had been no UIM motorist claim.
UM Versus UIM Motorist Limits
A personal automobile insurance policy ordinarily includes UM/UIM coverage unless the insured specifically declines to purchase it. UM coverage applies when an insured is hit by a motor vehicle that is not covered by automobile insurance. Alternatively, UIM coverage applies when an insured is hit by a motor vehicle that is covered by automobile insurance with third-party bodily injury policy limits less than the insured’s UM policy limits. For instance, suppose an officer is responding Code 3 and is T-boned in an intersection because the other (and at-fault) driver ran a red light. The officer is gravely injured and makes a claim against the at-fault driver’s insurance. However, the at-fault driver only has $15,000 per-person bodily injury limits, while the officer’s personal automobile policy provides for $100,000 per person in UIM limits. The officer must first exhaust (recover the whole amount of) the third-party’s smaller limit of $15,000, and then will be able to pursue a UIM claim against his own insurance.
The state of California has required every personal automobile insurance policy to provide a minimum of $15,000 per person/$30,000 per accident in UM/UIM limits unless the insured waives that coverage. [Cal. Insurance Code § 115802(a)(1); Cal. Vehicle Code § 16056(a).] Additionally, if an automobile insurance policy fails to provide UM motorist coverage, the state minimum limits will nevertheless be read into the policy, absent an express waiver. [See Enterprise Ins. Co. v. Mulleague 196 Cal.3d 528, 534 (1987).] PORAC LDF members should be cautious when purchasing their automobile policies. Some insurers will regularly request insureds to waive their UM/UIM coverage for no additional benefit to the insureds, and when the insureds are not required to do so.
Insured’s Duties and Nature of UM/UIM Coverage
When officers intend to pursue a UM or UIM claim, they should be informed of their required duties under the insurance policy and California law. For example, in a case of a hit and run, the insured must report the accident to law enforcement within 24 hours and provide a written statement under oath to the insurer within 30 days. [Cal. Insurance Code § 11580.2(b)(2).] Policies may also require other things from the claimant, including: (1) the insured give notice to, and/or obtain consent from, their insurer if the insured is to settle their claims against an UM driver; (2) submit to a recorded statement; (3) submit to a physical examination; (4) authorize the insurer to obtain their medical records; and (5) cooperate and assist the insurer in any matter concerning a claim or suit, and more. The officer will want to satisfy her duties under the policy so that she is not wrongfully denied on a technicality while pursuing a UM or UIM claim. The conservative approach is to report all motor vehicle collisions to your own insurance company right away.
Pursuing a UM or UIM claim can be adversarial to some extent. UM/UIM coverage does not make the insurer liable without fault. The officer, or employee, is only able to recover what they would have legally been entitled to recover from the at-fault driver. If the at-fault driver was, in fact, not negligent and/or did not cause the accident, then the officer may not be entitled to recover from their UM or UIM limits, even if the officer was severely injured.
Negligence is when a person fails to exercise care to the extent that a reasonable person would in the same or similar circumstances. A person could theoretically cause an accident but not be negligent if the act that caused the accident was reasonable. If the insurer refuses to accept the claim or provide any benefits to the insured, then the insured will have to make a demand for arbitration pursuant to the policy and prove their case for coverage and recovery. This is a long and difficult process which should be handled by an attorney. A PORAC LDF member who attempts to handle their own UM/UIM claim does so at great risk of falling into the procedural morass and losing the claim.
Conclusion
The nature of a PORAC LDF member’s duties inherently puts them at a higher risk of experiencing an on-duty motor vehicle accident. Motor vehicle accidents are not to be taken lightly. They often cause great bodily injury or death, and it is not uncommon that the perpetrator of the accident is uninsured or underinsured. For that reason, officers, and employees overall, should analyze their personal automobile policies to ensure that they are sufficiently covered if they are to experience an on-duty accident.
About the Authors
Grant Winter is the managing attorney of Mastagni Holstedt, APC’s Civil Litigation Department. His practice focuses on personal injury, civil rights, employment law and appellate practice. He is an experienced PORAC Legal Defense Fund panel attorney and his defense practice is focused on defense of civil rights claims made against law enforcement officers who are sued in their individual capacities. He can also answer any questions or concerns regarding UM or UIM claims.
Brandon Gomez is an associate attorney in Mastagni Holstedt, APC’s Civil Litigation Department. He is also an experienced PORAC Legal Defense Fund panel attorney. Additionally, he represents clients in personal injury matters ranging from motor vehicle accidents, slip and falls, product liability and other catastrophic injuries.
1 Center for Disease Control https://www.cdc.gov/niosh/topics/leo/