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MAKING A CLAIM AGAINST YOUR OWN INSURANCE COMPANY AFTER THE DEATH OF A LOVED ONE. HOW TO PURSUE DAMAGES IN A CHARLESTON, SC WRONGFUL DEATH CLAIM AGAINST YOUR OWN INSURER.

Posted by Jay McMillian | Nov 15, 2020 | 0 Comments

THE MCMILLIAN LAW FIRM

COMPASSIONATE LEGAL REPRESENTATION FOR VICTIMS, FAMILIES OF ACCIDENT VICTIMS, AND SURVIVORS IN CHARLESTON, SOUTH CAROLINA

The focus of this article is to discuss the interaction that family members and spouses have with your / their own insurance company following an auto accident that results in the death of a family member. To be concise, this article will discuss what to expect when you have to file a claim with your own insurance company either through uninsured or underinsured coverage for a wrongful death claim as a result of an auto accident. These underlying theme that I always see in practice is that grieving family members are under the impression that "their insurance company" will be there to make fair offers and provide a helping hand when that terrible time comes along. The surviving wife, the surviving child, or whoever the family member may be always believes that by paying premiums and being a loyal customer of the insurer, they will be treated fairly and compensated justly. The sad reality is that even "your insurance company" will look for ways to minimize their payment and move you along before you seek legal counsel and have an understanding of what you are truly due.

* For full disclosure, the hypothetical that I am using in this article (the policy coverage limits) to explain the theories of recovery for wrongful death are the actual policy coverage limits that our firm dealt with in a recent wrongful death claim. 

CALCULATING DAMAGES IN A CHARLESTON, SC WRONGFUL DEATH CASE

It is common knowledge for most drivers in South Carolina that our state requires a minimum of $25,000 per person / $50,000 per accident liability coverage on any automobile in operation. Translation, an auto policy in South Carolina must protect, at a minimum, each person in an accident up to $25,000 with a cap of $50,000 payable in total for all victims of the accident. 

In the context of a wrongful death claim, that is not a lot of money. Additionally, demographic studies have shown that individuals carry state minimum insurance limits are far less likely to have any real property or major assets to attach a judgment against. It is sad to say that I consult on many wrongful death matters, specifically in the area of auto accidents, and have to counsel the family that they have a $10 Million dollar case but we are only going to a limited recovery due to the insurance limits and lack of assets. Therefore, in most cases when we are dealing with a wrongful death claim, the at-fault driver's liability coverage will usually pay the limits of its coverage (This would assume of course that we are dealing with a straight up individual auto policy and not an "umbrella policy" utilized by businesses).

In using the hypothetical mentioned above, that would mean that an at fault driver with the state minimum policy would pay the full liability coverage of $25,000.00 on a wrongful death claim with no dispute over liability. 

Now, most policies will also have property coverage up to an amount that is equal to the amount of liability coverage on the specific policy. So in the hypothetical state minimum policy we are discussing, let's assume that the policy had property coverage in the amount of $25,000.00. It is correct to assume that property damage coverage is there to cover actual damage to the property, i.e. the actual car. However, in most claims for wrongful death when there is no dispute on liability, the at fault insurer will usually tender the property coverage limits as well. This is especially true on lower limit state minimum policies. 

So, at this point, the family has exhausted the coverage limits of the at-fault driver at $50,000.00 ($25,000 for liability and $25,000 for property damage) . . . Hardly the true value of a case where a dear family member has been lost due to the negligence of a bad driver. Where can the family go for additional sources of compensation . . . 

The McMillian Law Firm is known for compassionate and effective legal representation. Call us now at (843) 900-1306 or use the online form to schedule your free no-obligation case evaluation today.

UNDERINSURED COVERAGE AND A WRONGFUL DEATH CLAIM

When an individual purchases an auto policy, they are also allowed the opportunity (by law) to purchase underinsured coverage. Underinsured Motorist (UIM) pay the policy holder(s) benefits if the at fault driver's policy limits do not offer sufficient coverage to cover all of the damages resulting from the act that gave rise to the wrongful death claim. I can not think of one case involving wrongful death that I have ever worked where an examination of my clients' underinsured coverage was not a part of the final analysis in maximizing compensation to the surviving family members. In going further into the hypothetical used in this article, it will emphasize the point and the need for every driver to have underinsured motorist coverage!

In keeping with the example used in this article, lets say that the deceased party (victim of the wrongful death) had an automobile policy that carried underinsured motorist coverage (UIM) in the amount of $100,000.00. In every case I have negotiated, the victim's insurance company will tender the policy limits on his/her own underinsurance coverage.

Therefore, a wrongful death claim under these facts will at this point have provided the family $150,000.00 in total compensation. 

Now, here comes a little devil in the details. When an individual purchased underinsured motorist coverage, there is usually a property component to that which is equal to the liability component. So in other words, not only would there be $100,000.00 of additional compensation for liability, but there is also this extra $100,000.00 in coverage that on paper looks like it is for "property." It is important to note that insurers will handle this coverage in different ways as part of a wrongful death claim. I have consulted with family members who informed me that the insurer (mind you their insurer) has not even brought this up as part of the settlement package. Other insurers tender this additional coverage on the spot. As a lawyer, part of my job is to identify this coverage and usually once I put the insurer on notice that we (the survivors and I) are aware of this coverage, it is tendered to the policy limits. 

Now as part of this specific hypothetical, once we add in the $100,000.00 in property limits also from the victim's underinsured coverage, the total compensation to the family members is now at $250,00.00.

So out of $250,000.00 in total recovery thus far, we have been able to compensate the family because 80% of the recovery has been from the victim's own insurer! Are we beginning to see how important having underinsured motorist coverage is!! 

STACKING UNDERINSURED MOTORIST COVERAGE IN A CHARLESTON, SC WRONGFUL DEATH CLAIM

Under South Carolina law, underinsured motorist coverage follows the individual, not the vehicle. What does that exactly mean?  The family of the individual who was the victim of the accident may be able to access multiple policies because of policies purchased by the victim and/or the family members that are on cars that were not even involved in he accident. How does that work?

Lets say that the deceased party in the auto accident was married, and the victim's wife also had a car that had underinsured motorist coverage. The family pursing the wrongful death claim can seek underinsured motorist compensation from both cars, not just the car driven by the victim in the accident. 

So back to our example, lets assume that our victim had a spouse with a car at home (not involved in the accident) that carried the same underinsured limits as the victim's car ($100,000.00 in liability and $100,000.00 in property).Now, there is an extra $100,000.00 payable to the survivors from this "stacked" policy on the liability limits. Now once again, as with the victim's policy, there is also this extra $100,000.00 in property coverage. As before, a lot of insurers will not even inform the family of this pool of coverage. Secondly, many insurers, even if they have offered the "property" limits on the underinsured policy of the victim's policy, will not exactly volunteer this pool of compensation to the family. There job will be to get out on the cheap . . . even in a wrongful death claim by their own clients. This is why having a knowledgeable lawyer is so important!

So in pursuing these coverages in a hypothetical, we have now been able with some digging and firm negotiation with the underinsured motorist carrier, to get an additional $200,000.00 from the policy of the surviving wife that covers the second household car. That brings the total compensation to the surviving family tp $400,000.00. This is from a starting point of an at fault driver that only had $25,000.00 in liability coverage. 

This hypothetical shows what homework need to be done and the need for quality legal representation when survivors are pursuing a wrongful death claim on behalf of a lost loved one. 

UNDERSTANDING THE WRONGFUL DEATH CLAIM AND THE REMEDIES OFFERED BY SOUTH CAROLINA LAW

The absolute truth about any wrongful death claim is that the money from any settlement or lawsuit will never be enough to compensate the family for the grief and sorrow brought about by losing a loved one due to the negligence of another. However, it is important to note that, at least on the civil side of the law, compensation (i.e. money) is the remedy that is provided by the law. As a lawyer who handles many of these types of cases, I have to walk the line between offering the deserved empathy to each and every family I represent while also staying clinical and doing my job as legal advocate to identify and claim the compensation that is provided as the remedy by our system of justice. 

I can not implore upon the surviving victims the absolute necessary need to employ an attorney in prosecuting a Charleston, SC wrongful death claim so that you are armed with an expert to deal with the insurance companies and make sure that all legally viable options are placed on the table prior to commitment to a permanent solution. 

THE MCMILLIAN LAW FIRM

PROVIDING COMPASSIONATE REPRESENTATION FOR FAMILIES THAT HAVE BEEN VICTIMS OF A WRONGFUL DEATH IN CHARLESTON, SC

If a loved one has died as the result of the negligence, recklessness, or intentional acts of another person, please seek legal counsel immediately to help you navigate the time sensitive and procedural driven facets of a wrongful death claim. The McMillian Law Firm has experience in handling wrongful death claims and will do all that is necessary to help you and your family recover the maximum compensation possible. Please contact us at 843-900-1306 to schedule your free consultation and case evaluation at our office located at 925 Wappoo Road, Suite D, in Charleston, South Carolina.

We understand how difficult the unexpected loss of a loved one can be on a family and know that no amount of money can ever replace a lost family member. We are here to help you with your wrongful death claim and make sure that your family can receive all just compensation due under the law. 

About the Author

Jay McMillian

Background I chose to build my law practice in the areas of Car Accident and Personal Injury because these areas of the law are the most accurate reflection of my values and my upbringing. Being the son of a breakfast hostess and a retired US Army Sargent turned construction worker, the values instilled upon me by my par...

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The McMillian Law Firm

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Attorney Jay McMillian operates a solo practice with an emphasis on two core principles. First, to provide competent legal advice in the areas of Auto Accident and Personal Injury Law to the people he is proudest to serve, the people of the South Carolina Low Country. Second, to provide the most personal and intimate service to each and every client and give them the attention and compassion that they deserve while going through the stress and strain of negotiating or litigating an injury claim. If you live in Charleston, Summerville, Mount Pleasant, Goose Creek, James Island, Walterboro, Moncks Corner, and you or someone you love has been injured by the negligence of another, please call Jay at The McMillian Law Firm today.

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