UM/UIM Demand Letter - West Virginia

UM/UIM (UNINSURED/UNDERINSURED MOTORIST) DEMAND LETTER

State of West Virginia

[LAW FIRM LETTERHEAD]

SETTLEMENT COMMUNICATION — FOR RESOLUTION PURPOSES ONLY
W. VA. R. EVID. 408 / FED. R. EVID. 408 MAY LIMIT SPECIFIED USES OF DISPUTED-CLAIM NEGOTIATIONS; THEY DO NOT CREATE A GENERAL PRIVILEGE

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Article No.: [________________________________]
AND VIA EMAIL TO: [________________________________]

Date: [__/__/____]

[INSURANCE COMPANY FULL LEGAL NAME]
Attn: UM/UIM Claims Department
[________________________________]
[________________________________], WV [________]

Attention: [________________________________], [________________________________]
Re: FORMAL UM/UIM POLICY LIMITS DEMAND — WEST VIRGINIA LAW
Insured/Claimant: [________________________________]
Policy Number: [________________________________]
Claim Number: [________________________________]
Date of Loss: [__/__/____]
UM/UIM Policy Limits: $[________________________________]
Tortfeasor: [________________________________]
Tortfeasor's Carrier: [________________________________]
Tortfeasor's Bodily Injury Limits: $[________________________________]
Response Deadline: [__/__/____] at 5:00 p.m. Eastern Time

Dear [________________________________]:

I. INTRODUCTION AND NATURE OF DEMAND

This firm represents [________________________________] ("our client") in connection with a claim for [☐ uninsured / ☐ underinsured] motorist benefits under West Virginia law arising from a motor vehicle collision on [__/__/____]. This letter constitutes a formal demand for payment of the full UM/UIM policy limits of $[________________________________].

West Virginia mandates minimum UM coverage and requires an offer of optional UIM coverage. Confirm the issued policy and optional-coverage election before asserting UIM limits. Under W. Va. Code § 33-6-31, your company is legally obligated to provide this protection. Our client's total damages vastly exceed all available coverage, making this a clear policy-limits case.

This demand expires at 5:00 p.m. Eastern Time on [__/__/____]. If the claim remains unresolved, our client may seek policy benefits and any relief supported by Marshall v. Saseen. A separate § 33-11-4(9) unfair-practice claim requires its own factual and procedural predicates.

II. WEST VIRGINIA UM/UIM LAW — CONTROLLING FRAMEWORK

A. Mandatory UM and Optional UIM Coverage

West Virginia requires policies covered by W. Va. Code § 33-6-31(b) to include minimum uninsured motorist coverage. Higher UM limits and UIM coverage are optional coverages offered through the prescribed form under § 33-6-31d. Failure to return the form as required creates a presumption of knowing rejection of the optional coverages; check the issued policy, offer, return, and premium before stating the available limits.

☐ The policy in this case includes UM/UIM coverage at limits of $[________________________________].
☐ The issued policy and election records establish the optional UM/UIM limits stated above.

B. Stacking of UM/UIM Coverage — W. Va. Code § 33-6-31(b)

Section 33-6-31(b) addresses the treatment of bargained-for multivehicle discounts. Determine any available combined UM/UIM limits from the policy language and current controlling case law before including a stacked amount in this demand.

Stacking Analysis:

C. UIM Setoff Rules — W. Va. Code § 33-6-31(b)

Section 33-6-31(b) states that "No sums payable as a result of underinsured motorists' coverage may be reduced by payments made under the insured's policy or any other policy." Identify the applicable UIM limits, tortfeasor liability limits, payments to other accident victims, and recoverable damages; do not assume an offset formula from this sentence alone.

D. Consent to Settle Requirement

For a full-limits bodily-injury or death offer conditioned on UIM subrogation waiver, § 33-6-31e permits the specified written notice by certified mail, return receipt requested. We request a response concerning the proposed settlement with [________________________________] for liability limits of $[________________________________]. If using the statutory notice route, include every item required by § 33-6-31e(b).

☐ Consent is requested under the policy. Please respond by [DATE].
☐ A complete § 33-6-31e(b) notice was sent on [DATE]; the statutory 60-day period runs from the carrier's receipt, and waiver of subrogation depends on § 33-6-31e(c).

E. West Virginia Modified Comparative Fault — 50% Bar

West Virginia applies modified comparative fault under W. Va. Code § 55-7-13A et seq. A plaintiff is barred only when plaintiff fault is greater than the combined fault of all other responsible persons, so equality does not bar recovery; an allowed recovery is reduced proportionally. Our client bears zero comparative fault for this collision, as set forth in Section III below.

III. COVERAGE ANALYSIS

A. Policy Information

B. Coverage Trigger

For Uninsured Motorist (UM) Claims — check all that apply:

☐ The tortfeasor had no liability insurance at the time of the collision (confirm via WVDMV records or police report)
☐ The tortfeasor's insurer has denied coverage
☐ The tortfeasor's insurer is insolvent (West Virginia Insurance Guaranty Association may be implicated under W. Va. Code § 33-26-1 et seq.)
☐ The tortfeasor was a hit-and-run driver who cannot be identified. Document physical contact or, for a qualifying near-contact bodily-injury claim, the independent third-party testimony described in Hamric v. Doe, 201 W. Va. 615, 499 S.E.2d 619 (1997).

Unknown-driver claim checklist: Under W. Va. Code § 33-6-31(e), report the accident to a police, peace, or judicial officer within 24 hours after discovering it and being physically able to report, unless police already investigated. Notify the UM insurer within 60 days after the accident that the claimant has a claim against an unknown driver, with supporting facts; comply with a timely vehicle-inspection request. Hamric permits a narrow alternative to direct contact for bodily injury when disinterested third-party testimony establishes that immediate evasive action prevented contact and the unknown driver's negligence proximately caused the accident. Confirm these requirements before selecting the hit-and-run option.
☐ The tortfeasor's liability limits are below the WV statutory minimum of $25,000/$50,000

For Underinsured Motorist (UIM) Claims — check all that apply:

☐ Tortfeasor's applicable liability limits of $[________________________________] are below our client's UIM limits of $[________________________________], or were reduced below those limits by payments to others injured in this accident
☐ We have exhausted / will exhaust the tortfeasor's policy by settling for the full liability limits of $[________________________________]
☐ Client's damages of $[________________________________] exceed all available liability coverage

IV. THE COLLISION AND LIABILITY

A. Facts of the Collision

On [__/__/____], at approximately [________] [☐ a.m. / ☐ p.m.], our client was [________________________________] at or near [________________________________], [________________________________] County, West Virginia.

[PROVIDE DETAILED NARRATIVE: describe what client was doing, road/weather conditions, direction of travel, speed, traffic control devices present]

[________________________________]
[________________________________]
[________________________________]

B. Tortfeasor's Negligence Under West Virginia Law

[________________________________] ("Tortfeasor") was negligent in one or more of the following respects. The cited code sections identify statutory duties where applicable:

☐ Failure to maintain proper lookout
☐ Failure to yield right-of-way at an intersection (W. Va. Code § 17C-9-1)
☐ Following too closely (W. Va. Code § 17C-7-10)
☐ Exceeding the lawful speed limit or traveling too fast for conditions (W. Va. Code § 17C-6-1 et seq.)
☐ Distracted driving / use of a handheld electronic device (W. Va. Code § 17C-14-15)
☐ Failing to stop at a red traffic signal (W. Va. Code § 17C-3-5(c)(1))
☐ Failing to stop at a stop sign (W. Va. Code § 17C-9-3(b))
☐ Improper lane change or failure to maintain lane (W. Va. Code § 17C-7-1 et seq.)
☐ Driving under the influence of alcohol or drugs (W. Va. Code § 17C-5-2)
☐ Reckless driving (W. Va. Code § 17C-5-3)
☐ [________________________________]

C. Evidence of Liability

1. Law Enforcement Report
[________________________________] Police Department / [________________________________] County Sheriff's Office
Traffic Crash Report No. [________________________________], dated [__/__/____]
The investigating officer: ☐ cited the tortfeasor ☐ noted fault indicators ☐ [________________________________]

2. Witness Statements
[____] independent witness(es) observed the collision:

• [________________________________], contact: [________________________________]
• [________________________________], contact: [________________________________]

3. Physical / Electronic Evidence
☐ Dash-cam footage obtained from [________________________________]
☐ Traffic/surveillance camera footage from [________________________________]
☐ Vehicle EDR / black-box data showing pre-crash speed of [____] mph
☐ Point of impact, vehicle damage patterns, and debris field consistent with our client's account

4. Expert Analysis
☐ [________________________________], accident reconstructionist, has concluded: [________________________________]

D. Our Client's Freedom from Comparative Fault

Our client bears no comparative fault for this collision. Specifically:

• Our client was operating their vehicle in full compliance with all applicable traffic laws
• Our client had no opportunity to avoid the collision caused by the tortfeasor's sudden negligent act
• The [________________________________] Police Department / investigating officer assigned no fault to our client
• [________________________________]

Under West Virginia's modified comparative fault rule (W. Va. Code § 55-7-13A), our client is entitled to full, undiminished recovery.

V. OUR CLIENT'S INJURIES AND MEDICAL TREATMENT

A. Injury Summary

As a direct and proximate result of this collision, [________________________________] sustained the following injuries:

Primary Injuries:

• [________________________________]
• [________________________________]
• [________________________________]

Secondary / Consequential Injuries:

• [________________________________]
• [________________________________]

B. Medical Treatment Chronology

C. Current Condition and Prognosis

[________________________________]

☐ Our client has reached maximum medical improvement (MMI) as of [__/__/____].
☐ Our client continues active treatment; MMI has not been reached.
☐ Our client requires future medical care as detailed in Section V.D below.

D. Permanent Impairment Rating

VI. DAMAGES

A. Past Medical Expenses

B. Future Medical Expenses (Present Value)

Based on life care plan / medical opinion of [________________________________], dated [__/__/____].

C. Lost Income and Earning Capacity

Past Lost Income:
Our client was employed as [________________________________] earning $[________] per [☐ hour / ☐ week / ☐ month / ☐ year]. Client was unable to work from [__/__/____] through [__/__/____], a period of [____] [☐ days / ☐ weeks / ☐ months].

Past Lost Income Total: $[________]

Future Lost Earning Capacity (Present Value):
[________________________________]

Per vocational/economic expert [________________________________]: $[________] (present value)

Future Lost Earning Capacity Total: $[________]

D. Pain, Suffering, and Non-Economic Damages

Under West Virginia law, our client is entitled to compensation for:

• Past Physical Pain and Suffering: [________________________________]
• Future Physical Pain and Suffering: [________________________________]
• Past Mental Anguish and Emotional Distress: [________________________________]
• Future Mental Anguish and Emotional Distress: [________________________________]
• Loss of Enjoyment of Life / Hedonic Damages: [________________________________]
• Permanent Disfigurement / Scarring: [________________________________]
• Loss of Consortium (spouse: [________________________________]): [________________________________]

Non-Economic Damages: $[________]

Note: West Virginia does not cap non-economic damages in motor vehicle collision cases.

E. Total Damages Summary

VII. UIM BENEFITS CALCULATION

A. Damages and Available Coverage

B. Policy Limits Demand

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

Our client's documented damages of $[________________________________] exceed the coverage identified above. We request a written coverage and valuation response by the stated deadline.

VIII. WEST VIRGINIA BAD FAITH OBLIGATIONS AND WARNING

A. Your Good Faith Duties to Your Own Insured

As our client's own insurer, [________________________________] owes heightened good faith duties under West Virginia law. The insured-insurer relationship is one of the most protected in West Virginia jurisprudence. Your company must:

• Conduct a thorough, fair, and objective investigation of this UM/UIM claim
• Evaluate the claim based on the evidence, not on delay or leverage
• Promptly tender the full policy limits when, as here, the insured's damages clearly exceed the available coverage
• Communicate honestly and transparently throughout the claims process

B. Statutory Duties — W. Va. Code § 33-11-4 (UTPA)

W. Va. Code § 33-11-4(9) prohibits unfair claim settlement practices, including:

☐ Misrepresenting pertinent facts or policy provisions relating to coverage
☐ Failing to acknowledge and act reasonably promptly upon communications
☐ Failing to adopt and implement reasonable standards for prompt investigation
☐ Refusing to pay claims without conducting a reasonable investigation
☐ Not attempting in good faith to effectuate prompt, fair, and equitable settlement when liability is reasonably clear
☐ Compelling an insured to institute litigation by offering substantially less than the amounts ultimately recovered
☐ Failing to promptly provide a reasonable explanation for any denial or inadequate offer

C. Contract Relief and Separate Unfair-Practice Claims

Hayseeds and Marshall address additional relief when an insured substantially prevails on coverage. McCormick distinguishes that contract-based route from the implied § 33-11-4(9) unfair-settlement-practice claim discussed in Jenkins. The latter requires a general business practice and resolution of underlying liability and damages. Section 33-11-4a eliminates the third-party private unfair-practice action; it does not create a first-party claim.

As our client's own insurer, [________________________________] is instead subject to:

• Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986) — relief when an insured substantially prevails on a property-damage claim; Marshall applies specified relief to UM/UIM coverage litigation without requiring proof of insurer bad faith.
• McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996) — distinguishes the coverage/contract claim from a § 33-11-4(9) implied claim and explains the latter's separate predicates.
• W. Va. Code § 33-11-4(9) — listed unfair settlement practices must occur frequently enough to indicate a general business practice for that statutory theory.

Under these authorities, our client may recover:

• Actual damages (all policy benefits wrongfully withheld)
• Damages proven for aggravation and inconvenience under Marshall
• Attorney's fees (presumptively one-third of the policy face amount upon substantial prevailment — Hayseeds)
• Punitive damages, only if supported by a separately established claim and the applicable insurance and statutory standards (W. Va. Code § 55-7-29)

D. Marshall Extension of Hayseeds Relief to UM/UIM Claims

Hayseeds addressed property-damage claims. Under Marshall v. Saseen, 192 W. Va. 94, 450 S.E.2d 791 (1994), when a policyholder substantially prevails in a suit involving UM/UIM coverage issued under W. Va. Code § 33-6-31(b), the insurer is liable for the amount recovered up to policy limits, plus:

1. The insured's reasonable attorney's fees (presumptively one-third of the policy face amount)
2. Damages proven for aggravation and inconvenience

The insured must substantially prevail; fees must be reasonable and for services necessary to obtain payment, and aggravation and inconvenience damages must be proved.

Potential Hayseeds Exposure:

• Presumptive attorney fees: $[________] (one-third of $[________________________________] policy limits)
• Aggravation and inconvenience: $[________]

E. Shamblin Bad Faith for Failure to Settle Within Policy Limits

Under Marshall v. Saseen, 192 W. Va. 94, 450 S.E.2d 791 (1994), a UM/UIM carrier that fails to settle within policy limits may face a separate suit for an excess verdict under Shamblin principles. The trier of fact must determine whether the carrier failed to act in good faith; the excess verdict is not automatically payable when the insured obtains a verdict above the UM/UIM limits.

IX. NO MANDATORY ARBITRATION — W. Va. Code § 33-6-31(g)

West Virginia law prohibits mandatory arbitration of UM/UIM claims. W. Va. Code § 33-6-31(g) provides that no UM/UIM endorsement or provision "may contain any provision requiring arbitration of any claim arising under any such endorsement or provision, nor may anything be required of the insured except the establishment of legal liability, nor may the insured be restricted or prevented in any manner from employing legal counsel or instituting legal proceedings."

Accordingly, any arbitration clause in the policy purporting to compel arbitration of this UM/UIM claim is void and unenforceable under West Virginia law. Our client is entitled to have this dispute resolved by a West Virginia jury and to institute legal proceedings without any arbitration precondition. If [________________________________] fails to tender the full policy limits, our client will proceed directly to suit in circuit court — not arbitration.

X. SETTLEMENT WITH TORTFEASOR'S INSURER — CONSENT REQUEST

A. Tortfeasor's Settlement Status

We ☐ have reached / ☐ are pursuing a settlement with [________________________________] (tortfeasor's liability carrier) for the tortfeasor's policy limits of $[________________________________].

B. Formal Consent to Settle Request

Pursuant to your policy's consent-to-settle provisions and West Virginia law, we hereby formally request written consent to accept the tortfeasor's policy limits of $[________________________________] without prejudicing our client's UIM claim.

Please respond by [DATE]. If the offer is conditioned on waiver of UIM subrogation and the notice meets § 33-6-31e(b), the carrier has 60 days after receipt to preserve subrogation through the notice and payment required by subsection (c). This request alone is not a complete statutory notice unless all required information is included.

XI. STATUTE OF LIMITATIONS NOTICE

Under W. Va. Code § 55-2-6, actions on written insurance contracts are subject to a 10-year statute of limitations. Residual actions for personal-injury or property damages arising from the underlying collision use the 2-year categories in W. Va. Code § 55-2-12(a)-(b), measured after the right to bring the action accrued. Classify the claim and accrual rule before inserting a date: [__/__/____].

The underlying tort claim against the tortfeasor must be preserved by [__/__/____].

Calendar each applicable filing deadline separately from the response date in this demand.

XII. RESPONSE DEADLINE AND CONSEQUENCES OF NON-RESPONSE

THIS DEMAND EXPIRES AT 5:00 P.M. EASTERN TIME ON [__/__/____].

If [________________________________] fails to tender the full policy limits of $[________________________________] by this deadline:

1. Coverage litigation may be filed in [________________________________] County Circuit Court, West Virginia, seeking:

   • Full UM/UIM policy limits
   • Damages for aggravation and inconvenience
   • Attorney's fees under the Hayseeds doctrine (presumptively one-third of the policy)
   • Any additional relief supported by a separately established unfair-practice claim under § 33-11-4(9), subject to its general-business-practice and underlying-resolution requirements
   • Any punitive damages supported by a separately established claim and W. Va. Code § 55-7-29

2. Regulatory complaint will be filed with:

   • West Virginia Offices of the Insurance Commissioner
     P.O. Box 50540, Charleston, WV 25305-0540
     Tel: (304) 558-3354 | Toll-free: (888) 879-9842
     www.wvinsurance.gov

3. Direct suit — not arbitration; under W. Va. Code § 33-6-31(g), any UM/UIM arbitration clause is void and our client will proceed straight to circuit court

XIII. DOCUMENT PRESERVATION DEMAND

This letter constitutes formal legal notice that [________________________________] must immediately preserve all documents and electronically stored information (ESI) relating to this claim, including without limitation:

• The complete claim file, all drafts, notes, and versions
• All internal communications and emails regarding this claim
• Reserve history and all reserve change documentation
• Adjuster activity logs, diary entries, and supervisor approvals
• Claim-handling guidelines, manuals, and training materials
• All reports from independent medical examiners or experts
• All photographs, videos, and inspection materials
• Any claims scoring, algorithmic, or automated valuation outputs

Destruction or failure to preserve such materials after receipt of this notice may result in spoliation sanctions in subsequent litigation.

XIV. CONCLUSION

[________________________________] sold our client a policy of insurance promising protection when — as here — the at-fault driver cannot fully compensate the injured policyholder. That promise is now due. Our client suffered serious injuries, incurred substantial medical expenses, and has been deprived of full compensation solely because the tortfeasor was inadequately insured.

West Virginia's UM requirement and the Marshall coverage rule support this demand. If the facts later support a separate § 33-11-4(9) unfair-practice claim, our client reserves that claim subject to its distinct requirements. Tender the applicable policy limits of $[________________________________] by [__/__/____].

Respectfully submitted,

[________________________________]

By: [________________________________]
[________________________________], Esq.
WV Bar No. [________]
[________________________________]
[________________________________], WV [________]
Tel: [________________________________]
Fax: [________________________________]
Email: [________________________________]

Counsel for [________________________________]

ENCLOSURES:

☐ Policy declarations page and UM/UIM coverage provisions
☐ Optional UM/UIM offer and election form, proof of delivery/return, and policy declarations
☐ Law enforcement crash report (Report No. [________________________________])
☐ Medical records — [________________________________]
☐ Medical bills — total: $[________________________________]
☐ Photographs of collision scene and vehicle damage
☐ Lost income documentation / employer verification
☐ Permanent impairment rating — [________________________________], M.D.
☐ Life care plan — [________________________________]
☐ Vocational/economic expert report — [________________________________]
☐ Expert accident reconstruction report (if applicable)
☐ Tortfeasor proof of insurance (or declination / policy limits letter)

CC:

• [________________________________] (Client)
• [________________________________], [________________________________] (Tortfeasor's carrier, re: consent to settle)
• File

WEST VIRGINIA UM/UIM LAW — QUICK REFERENCE

SOURCES AND REFERENCES

• W. Va. Code § 33-6-31 (UM/UIM; § (b) coverage/anti-setoff, § (d) service on insurer, § (g) no-arbitration): https://code.wvlegislature.gov/33-6-31/
• Hamric v. Doe, 201 W. Va. 615, 499 S.E.2d 619 (1997) (near-contact hit-and-run UM claim): https://www.courtswv.gov/sites/default/pubfilesmnt/2023-11/23964.pdf
• W. Va. Code § 33-11-4 (UTPA): https://code.wvlegislature.gov/33-11-4/
• W. Va. Code § 33-11-4a (eliminates third-party private unfair-practice action): https://code.wvlegislature.gov/pdf/33-11-4A/
• McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996): https://www.courtswv.gov/sites/default/pubfilesmnt/2023-11/23261.pdf
• Marshall v. Saseen, 192 W. Va. 94, 450 S.E.2d 791 (1994): https://www.courtswv.gov/sites/default/pubfilesmnt/2023-11/22038.pdf
• W. Va. Code § 55-7-29 (Punitive Damages Cap): https://code.wvlegislature.gov/55-7-29/
• W. Va. Code § 55-7-13A (Comparative Fault): https://code.wvlegislature.gov/55-7-13A/
• Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986): https://law.justia.com/cases/west-virginia/supreme-court/1986/16782-5.html
• Shamblin v. Nationwide Mut. Ins. Co., 183 W. Va. 585, 396 S.E.2d 766 (1990): https://law.justia.com/cases/west-virginia/supreme-court/1990/19035-5.html
• WV Office of the Insurance Commissioner — Mandatory Limits: https://www.wvinsurance.gov/Consumer_Services_mandatory_limits
• West Virginia Young Lawyers Section — Insurance Law Handbook: https://wvyounglawyers.com/practice-handbook/insurance-law/
• Bordas & Bordas — Hayseeds Damages Explained: https://www.bordaslaw.com/blog-posts/the-cost-of-a-wrongly-denied-insurance-claim-hayseeds-damages/