UM/UIM Demand Letter - Massachusetts

UM/UIM (UNINSURED/UNDERINSURED MOTORIST) DEMAND LETTER

Commonwealth of Massachusetts

[LAW FIRM LETTERHEAD]

PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION - FOR COMPROMISE PURPOSES ONLY
PROTECTED UNDER Mass. G. Evid. § 408 and Fed. R. Evid. 408
M.G.L. c. 233, § 23B (Offers of Compromise Inadmissible)

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA EMAIL TO: [ADJUSTER_EMAIL]

Date: [__/__/____]

[INSURANCE_COMPANY_NAME]
[UM_UIM_CLAIMS_DEPARTMENT_ADDRESS]
[CITY], [STATE] [ZIP]

Attention: [________________________________], [ADJUSTER_TITLE]

Re: UM/UIM POLICY LIMITS DEMAND — MASSACHUSETTS LAW
Insured/Claimant: [________________________________]
Policy Number: [________________________________]
Claim Number: [________________________________]
Date of Loss: [__/__/____]
UM Limits (per M.G.L. c. 175, § 113L): [________________________________]
UIM Limits (per M.G.L. c. 175, § 113L): [________________________________]
Tortfeasor: [________________________________]
Tortfeasor's Carrier: [________________________________]
Tortfeasor's Limits: [________________________________]
Response Deadline: [__/__/____]

Dear [ADJUSTER_NAME]:

I. INTRODUCTION AND NATURE OF DEMAND

This firm represents [________________________________] ("our client") in connection with a claim for ☐ Uninsured Motorist ☐ Underinsured Motorist benefits under Part 3 (Bodily Injury Caused by an Uninsured Auto) and/or Part 12 (Bodily Injury Caused by an Underinsured Auto) of the Massachusetts Standard Automobile Policy, pursuant to M.G.L. c. 175, § 113L, arising from a motor vehicle collision that occurred on [__/__/____] in the Commonwealth of Massachusetts. This letter constitutes a formal demand for payment of the full UM/UIM policy limits of $[UM_UIM_LIMITS].

Our client's damages far exceed the available coverage. Under Massachusetts law, UM/UIM coverage is mandated by M.G.L. c. 175, § 113L and exists precisely for situations like this — to place the insured in the position they would have occupied had the tortfeasor carried adequate liability coverage. See Cardin v. Royal Ins. Co. of Am., 394 Mass. 450 (1985).

This letter also serves as formal notice under M.G.L. c. 93A, § 9 and c. 176D, § 3(9) of unfair claim settlement practices if this demand is not met in good faith.

II. MASSACHUSETTS UM/UIM LAW FRAMEWORK

A. Statutory Basis — M.G.L. c. 175, § 113L

Massachusetts is a compulsory insurance state. Under M.G.L. c. 175, § 113L(1), every Massachusetts motor vehicle liability policy must provide uninsured motorist coverage in amounts equal to those prescribed for bodily injury liability — the minimum compulsory limits being $20,000 per person / $40,000 per accident. Higher limits may be purchased, and most policies include underinsured motorist coverage at the insured's elected limits under Part 12 of the Massachusetts Standard Auto Policy.

B. No-Stacking Rule

Important note regarding stacking: Under M.G.L. c. 175, § 113L(5), UM/UIM limits from multiple vehicles or policies may not be stacked to determine the limits of insurance available. See Preferred Mut. Ins. Co. v. Gamache, 426 Mass. 93 (1997). However, an insured who is not a named insured on any policy providing UM coverage may recover from the policy of a resident relative providing the highest limits of such coverage, whether or not that vehicle was involved in the accident. M.G.L. c. 175, § 113L(2).

C. Trigger for Underinsured Motorist Benefits

Under M.G.L. c. 175, § 113L(2), underinsured motorist coverage is triggered when the tortfeasor's liability limits are less than the insured's UIM limits AND insufficient to compensate the insured for injuries sustained. The UIM carrier is entitled to a credit equal to the tortfeasor's limits (not the amount actually paid). See Santos v. Lumbermens Mut. Cas. Co., 408 Mass. 70 (1990).

D. Coverage Analysis

E. Coverage Trigger

☐ Uninsured Motorist (Part 3) — Triggered Because:

• ☐ The tortfeasor had no Massachusetts compulsory insurance at the time of the collision
• ☐ The tortfeasor's insurer has denied coverage or is insolvent (triggering Massachusetts Insurers Insolvency Fund rights under M.G.L. c. 175D)
• ☐ The tortfeasor was an unidentified hit-and-run driver (physical contact required under M.G.L. c. 175, § 113L(2))
• ☐ The out-of-state vehicle carried no insurance

☐ Underinsured Motorist (Part 12) — Triggered Because:

• ☐ The tortfeasor's liability limits of $[TORTFEASOR_LIMITS] are less than our client's UIM limits of $[UIM_LIMITS]
• ☐ Our client's damages exceed the tortfeasor's available coverage
• ☐ The liability carrier has tendered (or offered to tender) its policy limits

III. THE COLLISION AND LIABILITY

A. Facts of the Collision

On [__/__/____] at approximately [____] [AM/PM], our client was [________________________________] at or near [________________________________] in [CITY/TOWN], Massachusetts.

[DETAILED_DESCRIPTION_OF_COLLISION]

B. Tortfeasor's Negligence

The tortfeasor, [________________________________], was negligent as a matter of Massachusetts common law and statute:

• ☐ Failure to maintain proper lookout
• ☐ Violation of M.G.L. c. 89, § 4 (failure to yield right-of-way at intersection)
• ☐ Violation of M.G.L. c. 89, § 4B (failure to yield when entering highway)
• ☐ Violation of M.G.L. c. 90, § 14 (failure to keep right / improper passing)
• ☐ Violation of M.G.L. c. 90, § 17 (speeding / operating at unreasonable speed)
• ☐ Violation of M.G.L. c. 90, § 24 (operating under the influence — OUI)
• ☐ Violation of M.G.L. c. 90, § 13 (following too closely)
• ☐ Violation of M.G.L. c. 90, § 13B (use of mobile device — distracted driving)
• ☐ Other: [________________________________]

Massachusetts recognizes negligence per se where a statutory violation causes the precise harm the statute was designed to prevent. See Juliano v. Simpson, 461 Mass. 527 (2012).

C. Evidence of Liability

1. Police Crash Report
[________________________________] Police Department / Massachusetts State Police Crash Report (Motor Vehicle Crash Police Report — MVCPR No. [REPORT_NUMBER]), filed pursuant to M.G.L. c. 90, § 29.

2. Registry of Motor Vehicles Records
Operator history obtained from the Massachusetts Registry of Motor Vehicles pursuant to M.G.L. c. 90, § 30.

3. Witness Statements
[NUMBER] independent witnesses observed the collision.

4. Physical Evidence
Point of impact, vehicle damage patterns, crush analysis, and skid marks.

5. Expert Analysis (if applicable)
[ACCIDENT_RECONSTRUCTIONIST_NAME] has concluded: [SUMMARY_OF_OPINION]

D. Our Client's Freedom from Comparative Negligence

Under M.G.L. c. 231, § 85 (Modified Comparative Negligence — 51% bar), our client's recovery is reduced only by the percentage of fault attributed to our client, and is barred only if our client's negligence exceeds that of the tortfeasor. Here, our client bears zero comparative fault.

IV. TORT THRESHOLD AND PIP COORDINATION

A. Massachusetts Tort Threshold — M.G.L. c. 231, § 6D

Our client has satisfied the Massachusetts tort threshold under M.G.L. c. 231, § 6D, which permits recovery for pain and suffering where:

• ☐ Reasonable and necessary medical expenses exceed $2,000; OR
• ☐ Injury consists in whole or in part of death; OR
• ☐ Loss of a body member; OR
• ☐ Permanent and serious disfigurement; OR
• ☐ A fractured bone; OR
• ☐ Substantial loss of sight or hearing

Our client's medical expenses of $[____] exceed $2,000, AND our client sustained [________________________________], independently satisfying the threshold.

B. PIP Benefits — M.G.L. c. 90, § 34M

Our client has received/is receiving Personal Injury Protection benefits from [PIP_CARRIER] in the amount of $[____] (up to the $8,000 statutory maximum under M.G.L. c. 90, § 34M). The first $2,000 in medical expenses paid by PIP does not count toward the tort threshold under M.G.L. c. 231, § 6D. We confirm that PIP benefits have been properly coordinated and that any PIP lien rights are acknowledged.

C. Tort Exemption Does Not Bar UM/UIM Recovery

The partial tort exemption under M.G.L. c. 90, § 34M does not bar UM/UIM recovery. See Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112 (1999).

V. OUR CLIENT'S INJURIES AND TREATMENT

A. Injury Summary

As a direct and proximate result of this collision, our client sustained:

Primary Injuries:

• [PRIMARY_INJURY_1]
• [PRIMARY_INJURY_2]
• [PRIMARY_INJURY_3]

B. Treatment Timeline

C. Current Condition and Prognosis

[DESCRIBE_CURRENT_CONDITION_AND_PROGNOSIS]

D. Permanent Impairment

Per the AMA Guides to the Evaluation of Permanent Impairment (6th Ed.):

VI. DAMAGES

A. Medical Expenses (Post-PIP)

Past Medical Expenses:

Note on Massachusetts Collateral Source Rule: Under M.G.L. c. 231, § 60G, collateral source payments are generally not admissible in evidence to reduce damages in personal injury actions, subject to specific exceptions. The billed amount — not the paid amount — is the relevant measure of medical damages.

Future Medical Expenses (Present Value):

B. Lost Wages

Past Lost Wages (Post-PIP):

PIP covered 75% of lost wages up to the $8,000 combined cap. Remaining lost wages: $[TOTAL_PAST_LOST_WAGES]

Future Lost Earning Capacity:

$[FUTURE_LOST_EARNING_CAPACITY] (Present Value)

C. Pain and Suffering / Non-Economic Damages

Massachusetts permits recovery for physical pain, mental suffering, loss of enjoyment of life, scarring/disfigurement, and loss of bodily function. See Mass. Superior Court Civil Jury Instructions, Model Jury Instruction 3.03.

[DESCRIBE_PAIN_AND_SUFFERING]

D. Loss of Consortium (if applicable)

M.G.L. c. 231, § 85X recognizes loss of consortium claims by spouses and minor children. Value: $[____]

E. Damages Summary

VII. SETTLEMENT WITH TORTFEASOR'S INSURER AND CONSENT TO SETTLE

A. Settlement Status

We ☐ have reached ☐ are pursuing a settlement with [TORTFEASOR_CARRIER] for the tortfeasor's policy limits of $[TORTFEASOR_LIMITS].

B. Consent to Settle / Preservation of Subrogation Rights

Pursuant to Part 12 of the Massachusetts Standard Automobile Policy and Liberty Mut. Ins. Co. v. Tabor, 407 Mass. 354 (1990), we hereby request written consent to settle with the tortfeasor's carrier. The Massachusetts Standard Policy requires the UIM carrier's consent before the insured releases the tortfeasor in order to preserve the UIM carrier's subrogation rights.

Please provide written consent within [____] days. If [CARRIER_SHORT_NAME] wishes to preserve its subrogation rights, it may do so by tendering the tortfeasor's limits to our client within [____] days of this letter, as described in Fisher v. Liberty Mut. Ins. Co., 472 Mass. 828 (2015). Failure to respond will be deemed consent to settle.

VIII. DEMAND FOR UM/UIM BENEFITS

A. Calculation of UIM Benefits Due

B. Policy Limits Demand

We hereby demand payment of the full UM/UIM policy limits of $[UM_UIM_LIMITS].

Our client's damages of $[TOTAL_DAMAGES] vastly exceed the combined coverage available. Under the standard articulated in Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556 (2001), and Bobick v. United States Fidelity & Guar. Co., 439 Mass. 652 (2003), liability is reasonably clear and this is a policy-limits case. Anything less than policy limits would constitute a failure to effectuate "prompt, fair and equitable settlement" under M.G.L. c. 176D, § 3(9)(f).

IX. M.G.L. c. 93A / c. 176D NOTICE AND BAD FAITH WARNING

A. Statutory Duty

[CARRIER_SHORT_NAME] owes our client, its own insured, statutory duties under M.G.L. c. 176D, § 3(9), including the duty to:

• Effectuate prompt, fair and equitable settlement of claims in which liability has become reasonably clear (§ 3(9)(f))
• Acknowledge and act reasonably promptly upon communications (§ 3(9)(b))
• Adopt and implement reasonable standards for prompt investigation (§ 3(9)(c))
• Not refuse payment without conducting a reasonable investigation (§ 3(9)(d))
• Not compel insureds to institute litigation by offering substantially less than amounts ultimately recovered (§ 3(9)(g))
• Promptly provide a reasonable explanation of the basis for denial (§ 3(9)(n))

B. Private Right of Action Under c. 93A, § 9

An insurer's violation of M.G.L. c. 176D, § 3(9) constitutes, per se, an unfair or deceptive act under M.G.L. c. 93A, § 2. Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556 (2001); Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671 (1983). A claimant has a private right of action under M.G.L. c. 93A, § 9.

C. Available Remedies

Under M.G.L. c. 93A, § 9(3):

1. Actual damages (or $25 minimum)
2. Double to treble damages for knowing or willful violations
3. Reasonable attorneys' fees and costs
4. Prejudgment interest at 12% per annum under M.G.L. c. 231, § 6B

Under Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486 (2012), multiple damages are calculated based on the underlying judgment (not merely loss-of-use damages). AIG's $22+ million exposure in Rhodes should serve as a cautionary example.

D. 30-Day Response Requirement

Under M.G.L. c. 93A, § 9(3), [CARRIER_SHORT_NAME] has thirty (30) days from receipt of this demand letter to tender a written offer of settlement. Failure to make a reasonable written offer within 30 days exposes [CARRIER_SHORT_NAME] to multiple damages and attorneys' fees. A tender that is reasonable in relation to the injury limits recovery; an unreasonable tender does not.

Any attempt to deny, delay, or lowball this policy-limits claim will result in immediate filing of a c. 93A / c. 176D action seeking treble damages and attorneys' fees.

X. ARBITRATION UNDER THE MASSACHUSETTS STANDARD POLICY

A. Arbitration Clause

Part 12 of the Massachusetts Standard Automobile Policy provides for binding arbitration of UM/UIM disputes where the parties cannot agree on (1) whether the insured is legally entitled to recover, or (2) the amount of damages. See Liberty Mut. Ins. Co. v. Tabor, 407 Mass. 354 (1990).

B. Arbitration Demand (If Applicable)

If [CARRIER_SHORT_NAME] fails to accept this demand within the deadline below, consider this letter formal notice of demand for arbitration under Part 12 of the Massachusetts Standard Auto Policy. We will select [________________________________] as our client's arbitrator pursuant to the policy provisions. Please identify [CARRIER_SHORT_NAME]'s arbitrator within [____] days.

The three-year statute of limitations under M.G.L. c. 260, § 2A (tort) and six-year statute under M.G.L. c. 260, § 2 (contract) apply to UM/UIM claims.

XI. RESPONSE DEADLINE

This demand expires at 5:00 p.m. Eastern Time on [__/__/____].

Note: This deadline is separate from and in addition to the 30-day response period mandated by M.G.L. c. 93A, § 9(3).

Consequences of Non-Response

If [CARRIER_SHORT_NAME] fails to accept this demand:

1. We will invoke binding arbitration under Part 12 of the Massachusetts Standard Auto Policy
2. We will file suit in Massachusetts Superior Court (M.G.L. c. 212, § 4) or appropriate District Court
3. We will pursue a c. 93A / c. 176D action seeking treble damages, prejudgment interest at 12%, and attorneys' fees
4. We will file a formal complaint with the Massachusetts Division of Insurance, 1000 Washington Street, Suite 810, Boston, MA 02118-6200
5. We will notify the Attorney General's Insurance and Financial Services Division

XII. CONCLUSION

This claim presents clear liability, serious injuries satisfying the M.G.L. c. 231, § 6D threshold, and damages far exceeding the available coverage. [CARRIER_SHORT_NAME] has an opportunity to resolve this matter fairly by paying the policy limits to its own insured under Massachusetts law. We look forward to your prompt written response within 30 days as required by M.G.L. c. 93A, § 9.

Respectfully submitted,

[LAW_FIRM_NAME]

By: _______________________________
[ATTORNEY_NAME]
BBO# [________________________________]
[ADDRESS]
[CITY], MA [ZIP]
[PHONE]
[EMAIL]

Counsel for [CLIENT_NAME]

ENCLOSURES:

• ☐ Policy declarations page and Massachusetts Standard Auto Policy
• ☐ M.V.C.P.R. (Police Crash Report)
• ☐ Medical records and itemized bills
• ☐ PIP payment ledger
• ☐ Wage loss documentation (W-2s, paystubs, employer letter)
• ☐ Photographs of vehicle damage and injuries
• ☐ Expert reports
• ☐ Tortfeasor carrier correspondence

CC:

• [CLIENT_NAME]
• [TORTFEASOR_CARRIER] (re: consent to settle)

MASSACHUSETTS UM/UIM LAW QUICK REFERENCE

Sources and References

• M.G.L. c. 175, § 113L — Uninsured Motorists; Insufficient Liability Limits
• M.G.L. c. 90, § 34M — Personal Injury Protection
• M.G.L. c. 93A, § 9 — Consumer Protection, Private Remedies
• M.G.L. c. 176D, § 3 — Unfair Claim Settlement Practices
• M.G.L. c. 231, § 6D — Tort Threshold
• M.G.L. c. 231, § 6B — Prejudgment Interest
• Hopkins v. Liberty Mutual Insurance Co., 434 Mass. 556 (2001)
• Bobick v. United States Fidelity & Guaranty Co., 439 Mass. 652 (2003)
• Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486 (2012)
• Massachusetts Division of Insurance
• 211 CMR 133.00 — Standards for Motor Vehicle Insurance