UM/UIM Demand Letter - West Virginia

UM/UIM (UNINSURED/UNDERINSURED MOTORIST) DEMAND LETTER

State of West Virginia

[LAW FIRM LETTERHEAD]

PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION — FOR RESOLUTION PURPOSES ONLY
PROTECTED UNDER W. VA. R. EVID. 408 AND F.R.E. 408

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 UM/UIM coverage to protect insureds precisely when — as here — the negligent party lacks sufficient coverage to compensate the injured policyholder. 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 [__/__/____]. Failure to tender the full policy limits by that deadline will result in the immediate pursuit of all available remedies under West Virginia law, including a separate common-law first-party bad faith action under Hayseeds and McCormick v. Allstate, with UTPA standards under W. Va. Code § 33-11-4(9) defining the standard of conduct.

II. WEST VIRGINIA UM/UIM LAW — CONTROLLING FRAMEWORK

A. Mandatory UM/UIM Coverage Under W. Va. Code § 33-6-31

West Virginia requires all automobile liability policies to include uninsured motorist coverage at minimum limits of $25,000 per person / $50,000 per accident for bodily injury (W. Va. Code § 33-6-31). Rejection of UM/UIM coverage is only valid if made in writing by the named insured. Absent a valid written rejection, UM/UIM coverage is implied by law at the statutory minimum.

☐ The policy in this case includes UM/UIM coverage at limits of $[________________________________].
☐ No written rejection of UM/UIM coverage was executed; statutory minimum coverage applies by operation of law.

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

West Virginia expressly permits stacking of UM/UIM coverages under W. Va. Code § 33-6-31(b). An insured who owns or has access to multiple vehicles under the same policy — or separate policies — may stack the applicable UM/UIM limits to maximize recovery. Anti-stacking clauses that conflict with § 33-6-31(b) are void as against West Virginia public policy.

Stacking Analysis:

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

Under W. Va. Code § 33-6-31(d), UIM benefits are calculated as the difference between the insured's total damages and the tortfeasor's liability limits actually paid. The UIM carrier may offset the amount the tortfeasor's insurer has paid. Importantly, the WV Supreme Court has held that the UIM carrier cannot reduce UIM limits by amounts paid under the insured's own policy — only the tortfeasor's payment reduces the UIM obligation.

D. Consent to Settle Requirement

Before settling with the tortfeasor's liability carrier, our client must obtain written consent from [________________________________] to preserve UIM benefits. We hereby formally request written consent to settle with [________________________________] for the liability limits of $[________________________________].

☐ Consent is requested. Please respond within [____] days of this letter.
☐ Failure to timely respond will be treated as consent under applicable West Virginia law.

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 who is 50% or more at fault is barred from recovery. If less than 50% at fault, 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 § 33-26A-1 et seq.)
☐ The tortfeasor was a hit-and-run driver and cannot be identified (physical contact required under WV law — document accordingly)
☐ 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 liability limits of $[________________________________] are insufficient to fully compensate our client
☐ 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, in violation of the West Virginia Rules of the Road, W. Va. Code § 17C-1-1 et seq.:

☐ Failure to maintain proper lookout (W. Va. Code § 17C-8-7)
☐ Failure to yield right-of-way (W. Va. Code § 17C-13-1 et seq.)
☐ Following too closely (W. Va. Code § 17C-7-11)
☐ 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)
☐ Running a red light or stop sign (W. Va. Code § 17C-12-1 et seq.)
☐ 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. UIM Benefit Due Under W. Va. Code § 33-6-31(d)

B. Policy Limits Demand

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

Our client's total damages of $[________________________________] vastly exceed the combined coverage available from the tortfeasor and your policy. This is a clear policy-limits case under West Virginia law. Tender of the full limits is the only reasonable response.

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. First-Party Common-Law Bad Faith — Hayseeds and McCormick

Critical WV-Specific Doctrinal Point: West Virginia's private right of action for first-party bad faith is common-law, not statutory. W. Va. Code § 33-11-4a (enacted 2005) eliminated the third-party private cause of action under the UTPA and channels third-party complaints to the Insurance Commissioner. It did not create a first-party private right and does not govern recoveries by first-party insureds.

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) — contract-based attorney's fees, consequential damages, and aggravation/inconvenience damages whenever a first-party insured substantially prevails, regardless of the insurer's good or bad faith.
• McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996) — first-party bad faith is a separate common-law tort, with punitive damages available upon proof of "actual malice" (the insurer actually knew the claim was proper but willfully, maliciously, and intentionally denied it).
• The UTPA standards in W. Va. Code § 33-11-4(9), which supply the standard of conduct by which the insurer's claim handling is measured under the McCormick tort.

Under these authorities, our client may recover:

• Actual damages (all policy benefits wrongfully withheld)
• Consequential damages and damages for aggravation and inconvenience (Hayseeds)
• Attorney's fees (presumptively one-third of the policy face amount upon substantial prevailment — Hayseeds)
• Punitive damages for the McCormick tort upon proof of actual malice by clear and convincing evidence (W. Va. Code § 55-7-29)

D. Hayseeds Doctrine — Attorney Fees for ALL Breach of Insurance Contract Cases

This is a uniquely powerful West Virginia remedy. Under Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986), whenever a policyholder substantially prevails in any first-party insurance dispute — regardless of whether the insurer acted in good or bad faith — the insurer is liable for:

1. The insured's reasonable attorney's fees (presumptively one-third of the policy face amount)
2. Net economic loss caused by the delay in settlement
3. Damages for aggravation and inconvenience

The Hayseeds doctrine applies to UM/UIM claims. See also Marshall v. Saseen, 196 W. Va. 659, 474 S.E.2d 529 (1996). The good faith or bad faith of the insurer's refusal is largely irrelevant — once the insurer breaches its contract, attorney fees and consequential damages flow automatically upon substantial prevailment.

Potential Hayseeds Exposure:

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

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

Under Shamblin v. Nationwide Mut. Ins. Co., 183 W. Va. 585, 396 S.E.2d 766 (1990), if [________________________________] unreasonably refuses to settle within its policy limits and an excess verdict is later entered, the carrier may be personally liable to our client for the full excess judgment. The Shamblin standard requires the insurer to prove by clear and convincing evidence that it had substantial, reasonable grounds for refusing to settle.

IX. ARBITRATION

A. Policy Arbitration Provision

The policy ☐ contains / ☐ does not contain an arbitration clause for UM/UIM disputes.

[IF APPLICABLE:] The policy's arbitration provision states: "[________________________________]"

Procedural requirements under the policy and West Virginia law:

• Demand must be made within [____] days of: [________________________________]
• Each party selects one arbitrator; parties jointly select a third or the court appoints
• Arbitration location: [________________________________], West Virginia

B. Arbitration Demand (If Applicable)

If [________________________________] fails to accept this demand, consider this letter as notice of our intent to invoke the arbitration process under the policy and West Virginia law to resolve the UM/UIM dispute.

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 provide written consent within [____] days. Under West Virginia law, unreasonable refusal to consent to a reasonable settlement may itself constitute bad faith conduct.

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. Tort claims arising from the underlying collision are subject to a 2-year limitation under W. Va. Code § 55-2-12, running from [__/__/____].

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

This letter is intended to preserve all applicable limitations periods and to toll any time limits under your policy.

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. Bad faith litigation will be filed immediately in [________________________________] County Circuit Court, West Virginia, seeking:
   - Full UM/UIM policy limits
   - Consequential damages and net economic loss from delay
   - Damages for aggravation and inconvenience
   - Attorney's fees under the Hayseeds doctrine (presumptively one-third of the policy)
   - Punitive damages for the McCormick common-law first-party bad-faith tort, with W. Va. Code § 33-11-4(9) supplying the standard of conduct (up to 4× compensatory damages or $500,000 — W. Va. Code § 55-7-29)
   - All remedies available for breach of insurance contract and common-law first-party bad faith under West Virginia law

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. Arbitration will be demanded under the policy (if applicable)

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/UIM mandate, the Hayseeds doctrine, the McCormick common-law first-party bad-faith tort, and the UTPA standards in W. Va. Code § 33-11-4(9) exist precisely to enforce this promise. (W. Va. Code § 33-11-4a eliminated the third-party private action in 2005 and does not govern first-party recoveries.) Tender the full 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
☐ Written UM/UIM rejection form (or confirmation none exists)
☐ 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: https://code.wvlegislature.gov/33-6-31/
• W. Va. Code § 33-11-4 (UTPA): https://code.wvlegislature.gov/33-11-4/
• W. Va. Code § 33-11-4a (Eliminates third-party private action; first-party remedy is common-law): https://code.wvlegislature.gov/33-11-4A/
• McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996): https://law.justia.com/cases/west-virginia/supreme-court/1996/23261.html
• 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/