Uninsured/Underinsured Motorist Complaint - West Virginia

UNINSURED/UNDERINSURED MOTORIST COMPLAINT

Table of Contents

1. Caption
2. Parties
3. Jurisdiction and Venue
4. Insurance Policy Identification
5. Facts of the Accident
6. Uninsured or Underinsured Status of Tortfeasor
7. Exhaustion of Tortfeasor's Coverage
8. Count I: UM/UIM Benefits Claim
9. Count II: Breach of Contract and Additional Relief
10. Damages
11. Stacking Provisions
12. Prohibition on Mandatory Arbitration
13. Prayer for Relief
14. Verification
15. West Virginia Practice Notes

Caption

IN THE CIRCUIT COURT OF [________________________________] COUNTY
STATE OF WEST VIRGINIA

Civil Action No.: [________________________________]

Parties

1. Plaintiff, [PLAINTIFF NAME], is an individual residing at [________________________________], [________________________________] County, West Virginia, and a person insured under the motor vehicle insurance policy described herein.

2. Defendant, [INSURANCE COMPANY NAME], is an insurance company authorized to transact business in West Virginia, with its principal office at [________________________________].

Jurisdiction and Venue

3. This Court has jurisdiction over this matter at law under W. Va. Code § 51-2-2(b) because the amount in controversy, excluding interest, exceeds $7,500.

4. Venue is proper in [________________________________] County under W. Va. Code § 56-1-1(a)(5) because [THE INSURED PROPERTY WAS SITUATED HERE AT THE POLICY DATE OR ACCRUAL / THE INSURED PERSON HAD A LEGAL RESIDENCE HERE AT DEATH OR ACCRUAL], or under [ANOTHER SELECTED SUBSECTION] because [FACTS]. Do not treat insurer business activity alone as the insurance-loss venue rule.

Insurance Policy Identification

5. On or about [__/__/____], Defendant issued automobile insurance policy number [________________________________] to Plaintiff, effective from [__/__/____] to [__/__/____].

6. The policy provides:

   • ☐ Uninsured Motorist (UM) coverage with limits of $[________________________________] per person / $[________________________________] per accident / $[________________________________] property damage
   • ☐ Underinsured Motorist (UIM) coverage with limits of $[________________________________] per person / $[________________________________] per accident

7. ☐ UM coverage was mandated by law and included in the policy.
   ☐ UIM coverage was offered and accepted by the named insured.
   ☐ UIM coverage appears in the issued policy at the limits pleaded above; Plaintiff has reviewed the offer form, any election or rejection, and the applicable premium.

8. Plaintiff has paid all premiums due and has complied with all policy conditions.

Facts of the Accident

9. On [__/__/____], at approximately [____] a.m./p.m., Plaintiff was operating/occupying a motor vehicle at or near [________________________________], [________________________________] County, West Virginia.

10. At that time and place, a motor vehicle operated by [TORTFEASOR NAME] negligently and carelessly caused a collision with Plaintiff's vehicle.

11. The tortfeasor's negligent acts include but are not limited to:

    • ☐ Failure to yield the right of way
    • ☐ Following too closely
    • ☐ Distracted driving
    • ☐ Driving under the influence of alcohol or drugs
    • ☐ Exceeding the posted speed limit
    • ☐ Failure to obey traffic control devices
    • ☐ Improper lane change or turning
    • ☐ Failure to maintain control
    • ☐ Other: [________________________________]

12. As a direct and proximate result, Plaintiff sustained serious bodily injuries and damages.

Uninsured or Underinsured Status of Tortfeasor

13. The tortfeasor's motor vehicle qualifies as:
    • ☐ Uninsured — No automobile liability policy was in effect at the time of the accident
    • ☐ Underinsured — Applicable liability limits of $[________________________________] are below Plaintiff's UIM limits of $[________________________________], or were reduced below those limits by payments to others injured in this accident
    • ☐ Hit-and-Run / Unknown — The owner or operator remains unidentified; Plaintiff can plead the reporting, insurer notice, inspection, and physical-contact facts required by W. Va. Code § 33-6-31(e)
    • ☐ Insurer Denied Coverage — The tortfeasor's liability insurer has denied coverage

Exhaustion of Tortfeasor's Coverage

14. ☐ The tortfeasor had no liability insurance; exhaustion is not applicable.
    ☐ Plaintiff has settled with or obtained judgment against the tortfeasor's insurer for the policy limits of $[________________________________].
    ☐ For a full-limits bodily-injury/death offer conditioned on waiver of UIM subrogation, Plaintiff sent the notice required by W. Va. Code § 33-6-31e(b) by certified mail on [DATE]; Defendant ☐ waived subrogation / ☐ did not preserve it with timely notice and payment of the offered limits under § 33-6-31e(c).

Count I: UM/UIM Benefits Claim

15. Plaintiff incorporates all preceding paragraphs by reference.

16. Plaintiff is a person insured under the policy who is legally entitled to recover damages from the owner or operator of an uninsured/underinsured motor vehicle for bodily injury and/or property damage arising from the ownership, maintenance, or use of such vehicle.

17. Pursuant to W. Va. Code § 33-6-31, Defendant is obligated to pay UM/UIM benefits to Plaintiff.

18. Defendant has failed or refused to pay the UM/UIM benefits owed despite Plaintiff's compliance with all policy conditions and proper demand.

Count II: Breach of Contract and Additional Relief

19. Plaintiff incorporates all preceding paragraphs by reference.

20. Defendant's refusal to pay UM/UIM benefits constitutes a breach of the insurance contract.

21. If Plaintiff substantially prevails on the UM/UIM coverage claim, Plaintiff requests reasonable attorney fees and proven damages for aggravation and inconvenience under Lemasters v. Nationwide Mutual Insurance Co., No. 12-0774 (W. Va. Oct. 29, 2013). This paragraph does not plead a separate W. Va. Code § 33-11-4(9) claim.

Damages

22. As a direct and proximate result of the accident, Plaintiff has suffered:
    • ☐ Past medical expenses: $[________________________________]
    • ☐ Future medical expenses: $[________________________________]
    • ☐ Past lost wages: $[________________________________]
    • ☐ Future lost earning capacity: $[________________________________]
    • ☐ Pain and suffering: $[________________________________]
    • ☐ Mental anguish and emotional distress: $[________________________________]
    • ☐ Loss of enjoyment of life: $[________________________________]
    • ☐ Permanent impairment or disability: $[________________________________]
    • ☐ Property damage: $[________________________________]
    • ☐ Other: [________________________________]

Stacking Provisions

23. ☐ Plaintiff's policy covers multiple vehicles and Plaintiff seeks to stack UM/UIM limits.
    ☐ The policy contains an anti-stacking provision that Plaintiff contends is unenforceable.
    ☐ Stacking is not applicable.

Prohibition on Mandatory Arbitration

24. Pursuant to W. Va. Code § 33-6-31, no UM/UIM endorsement or provision may contain any clause requiring arbitration of any claim arising thereunder.

25. ☐ Defendant has attempted to compel arbitration; Plaintiff objects on the basis that mandatory arbitration clauses in UM/UIM policies are prohibited by West Virginia law.
    ☐ No arbitration clause exists; Plaintiff proceeds by civil action.

Prayer for Relief

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment against Defendant as follows:

1. UM/UIM benefits for covered damages, including bodily injury and economic loss proved at trial, up to the applicable policy limits of $[________________________________];
2. If Plaintiff substantially prevails, reasonable attorney fees and proven damages for aggravation and inconvenience;
3. Prejudgment and postjudgment interest as provided by law;
4. Costs of litigation;
5. Such other and further relief as the Court deems just and equitable.

Verification

STATE OF WEST VIRGINIA,
COUNTY OF [________________________________], to-wit:

I, [PLAINTIFF NAME], being first duly sworn, state that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief.

Date: [__/__/____]

Signature: [________________________________]

Taken, subscribed, and sworn to before me this [____] day of [________________________________], [____].

Notary Public: [________________________________]
My Commission Expires: [__/__/____]

West Virginia Practice Notes

• UM Mandatory; UIM Optional: UM coverage is mandatory (W. Va. Code § 33-6-31). UIM is optional but must be offered on a form prescribed by the Insurance Commissioner (§ 33-6-31d).
• No Mandatory Arbitration: W. Va. Code § 33-6-31(g) prohibits arbitration clauses in UM/UIM endorsements and prohibits restricting the insured from employing counsel or instituting legal proceedings.
• Minimum UM Limits: $25,000/$50,000 bodily injury; $25,000 property damage.
• Statute of Limitations: Identify the claim and defendant before calculating a deadline. In Dalton v. John Doe, No. 26437 (W. Va. June 16, 2000), the court explained that a direct UM/UIM benefits action against the carrier sounds in contract, while an action against an unidentified John Doe tortfeasor sounds in tort and is subject to the two-year tort period. Do not apply the tort period automatically to this direct action against the insurer; determine the applicable period and accrual separately for each pleaded count.
• Comparative Fault: Recovery is barred only when Plaintiff's fault is greater than the combined fault of all other responsible persons; equality does not bar recovery. W. Va. Code § 55-7-13c(c).
• Additional insurer claims: Lemasters quotes the UM/UIM rule allowing reasonable fees and proven aggravation and inconvenience when the policyholder substantially prevails. A separate § 33-11-4(9) unfair settlement practice theory requires evidence of a general business practice and resolution of the underlying liability and damages; assess that claim separately before pleading it.
• Third-Party Bad Faith: Third-party claimants must file administrative complaints with the Insurance Commissioner; no private cause of action (W. Va. Code § 33-11-4a).
• Stacking: May be limited by policy anti-stacking provisions; review current case law.
• UIM election: Review the prescribed offer form, proof of delivery and return, any signed election or rejection, the policy, and the premium. Under § 33-6-31d(c), failure to return the form as required creates a presumption of knowing rejection of optional coverage; the issued-policy exception in subsection (b) and the affiliate rule in subsection (f) may affect the result.
• Full-limits UIM settlement: For an offer conditioned on waiver of subrogation, § 33-6-31e sets a certified-mail notice process and gives the UIM carrier 60 days after receipt to preserve subrogation by notice and payment of the offered limits.
• Unknown driver: Section 33-6-31(e) requires timely police reporting and insurer notice, an inspection opportunity when requested, and proof of physical contact. Check those facts before selecting the hit-and-run option.

This template is for informational purposes only and does not constitute legal advice. Consult a licensed West Virginia attorney before filing. Verify all statutory citations against the current West Virginia Code.