Rachel of Virginia Beach, VA, writes (3/17/03):
Aug. 2000 I was rear-ended. The man who hit me accepted liablilty. State Farm paid to fix my car (very little damage). I suffered immediate pain in my neck and down my left arm. I have had surgery, Physical Therapy and am currently on a lot of medicine for pain and stiffness. I have missed months of work and am not currently working. It is painful for me to sit and type at a computer for long periods of time. I suffer from the time I wake until I go to bed.

Geico (the man's insurance) offered me what coverage the man had ($20,000). He purchased coverage in a state with $20,000 limits. My medical bills are way over that amount. The Navy has a medical lien on my case (had coverage under my ex-husband). State Farm had denied me benefits under my underinsured motorist coverage claiming I had pre-exisiting condition (degenerative disc disease). I have $100,000 coverage.

The doctors I have seen all say the accident didn't cause the condition but did aggravate it. My attorney feels that it is best to settle because of jury attitudes in Va. Beach. I didn't know I had any condition until I was rear-ended. There is nothing in any medical files that show I ever went to the doctor for it. I did however note that I have had about four occasions in my life that I had a stiff neck sometimes when I had a cold.

State Farm sent the nastiest lawyer they could find to question me at the deposition. They will not pay. If I take Geico's offer of $20,000, that's the end of the case. I can't go after State Farm separately. I have been insured with them off and on since about 1989. I have had everything from tenants to Life. I am appalled that State Farm can take your money and then not protect you when you have a legitimate claim

I have two minor children that I can't play with anymore. I can't clean my home, lift certain object. I am about to look into bankruptcy.

Cliff Horwitz, a Chicago attorney, responds: Your situation is common. I find it grim and personally depressing. You have suffered a serious injury requiring surgery. The defendant has insufficient insurance to even pay your medical bills. If you sue the Defendant, he will likely file for bankruptcy protection and therefore avoid paying any compensation. However, you did buy underinsured motorist coverage with State Farm and obtained $100,00.00 in coverage. You would think that after watching all those State Farm commercials wherein they advertise how "they care" and "you're in good hands", that they would surely and immediately pay the $100,000.00 due to your serious injury. Even if they did do that, the compensation would be woefully insufficient to compensate you for this tragedy in your life.

Due to the weak consumer protection laws that failed to protect you, you are left little or nothing and are probably doomed to be dependent on the government, when private insurance should be footing the bill.

I do want to note some potential procedural disagreements I have with your plight. Perhaps this is because you were hurt in Virginia and the laws are significantly different there. However, I doubt that. You would need to consult with your attorney and make sure your attorney knows what he is doing.

First, under the law in most states, you would not be precluded from pursuing your Underinsured Motorist Coverage if you collect the $20,000.00. In fact, collection of that $20,000.00 policy limit should be a pre-requisite to then pursuing the $100,000.00. In most states, as long as your UIM carrier (State Farm) doesn't object to the $20,000 settlement, you can receive the money. If they do object, then State Farm would be required to tender you the $20,000.00 and they could then step into your shoes and sue the defendant personally for the losses caused. Again, check with a good Virginia personal injury lawyer.

As to the pre-existing condition that was aggravated by this accident, in most states, that would not significantly harm your claim as long as you have a good lawyer. Most states, and I assume Virginia is the same way, have a rule called the "egg shell" rule. The rule says that if you are susceptible to injury due to a weakened condition or a pre-existing condition that makes you more likely to be hurt, then the defendant has to pay for all injuries caused by his aggravating those conditions. In other words, "you take them as you find them". A defendant can't complain because he hurt the weak instead of the strong. Hence, in most states, the pre-existing condition should not present a significant problem.

So, what is the problem? It's the insurance. Plus, it's the way government protects insurance companies. As to the Underinsured Motorist case, those can be problematic. The first problem with UIM cases is that you do not have a right to a jury. A jury comprises your only chance for full justice. The UIM system on the other hand is a pro-insurance, unjust system. Your case is decided by arbitrators who are usually biased, rather than by a juror of your peers. The decisions frequently result in low, paltry verdicts. They are generally insensitive and biased since they receive most of their income from insurance companies. The system is a disgrace.

Further, most states have very poor laws relative to insurance bad faith. If you can't sue the insurance company, like State Farm, for exercising bad faith, then what motive does State Farm have to pay you in a timely fashion? They can just earn interest on their money and starve you out until you are forced to accept a lower sum.

You have no chance for justice here because there is insufficient insurance thanks to Virginia's weak laws. Your only chance for any compensation is to have a great trial lawyer who knows what he is doing and understands UIM law. Does your lawyer?
-- Clifford W. Horwitz, HorwitzLaw.com