UTAH’S UNDISPUTED TENDER IN THE UNDERINSURED MOTORIST STATUTE—HOWITWORKS
As far as law goes that favors the insured over the insurance company, Utah’s underinsured motorist (“UIM”) claims statutes has a few. One important feature of Utah’s UIM statute is the “Undisputed Tender.” See Utah Code 31A-22-305.3(9). It is unique and beneficial to the injured party insured.
Benefits of the Undisputed Tender. Prior to having the undisputed tender from your own UIM carrier, you would have to litigate the case fully to a settlement. All the while you may or may not have any money. At the same times your medical bills are racking up and you can’t work. The undisputed tender tries to remedy that situation by forcing your own UIM insurance company to make an up-front tender of what they think the value of your UIM injury claim is. This up-front initial UIM payment is called the undisputed tender/payment.
Example Sideswipe Orem State Street Car Accident. You are sideswiped on Orem State street in a car accident breaking your ribs. The at-fault insurance company for the car that hurt you only had $25,000 and offers it to you immediately. You have a $100,000 UIM policy limit. After all appropriate disclosures and releases are given, your insurance offers $35,000 additional dollars on top of the $25,000 liability carrier’s limits offer as the undisputed tender. You can accept it and keep litigating or accept it and settle. If the undisputed tender is the policy limit, you must accept it.
Where is the Undisputed Tender Found? Utah’s UIM undisputed tender is found at Utah Code 31A-22-305.3(9).
What is the Mechanism of the Undisputed Tender? Subsection (9) provides that to be considered for the undisputed tender you must signed a medical release for the UIM carrier and provide a list of disclosures specifically detailed in the UIM statute. All disclosures must be signed under oath.
The list of disclosures under oath are:
(1). Treating Medical Providers.
The names of all health care providers who provided care to you because of the accident.
The names of the health care providers who have provided health care services to you for any reason in the last 5 years.
Example, your big toe was injured at work on a construction site, or an unrelated finger injury while doing roof work at your house. Each would need to be reported, even though each are not related to your current car accident injuries.
(2). Private Health Insurance Companies, Select Health, TriCare, Bluecross etc.
The names of all health insurance companies who paid for medical care in the last 5 years regardless of whether it was related or not related to the car accident.
The names of all health insurance companies who paid for any car accident related health care in the last 5 years.
The purpose of disclosing who your private health care insurance carriers were is because often the injured part is a poor historian of their own health, or they don’t know. Private health care insurance companies keep lists of providers who have billed them, when, for what and how much was paid. Very useful information to insurance defense attorneys.
(3). Lost Wages Proof. if lost wages, diminished earning capacity, or similar damages are claimed, all employers of the injured person must be listed, including their wage, paystubs, salary, bonuses, 1099s, w2 and tax returns.
(4). Other Proof. Any other documents to reasonably support the claims being asserted; and
(5). State Assistance. You must disclose whether you are on any federal or state assistance. Medicare and Medicaid are common examples, and
(6). Signed Releases. You must provide your own insurance company signed releases so they can gather all your medical records and wage loss information.
The UIM undisputed tender gives them 60 days to send out the releases, gather and analyze what the undisputed tender should be.
Undisputed UIM Tender Timeline.
After a timely and fully disclosed request for the undisputed tender occurs, the clock starts. The undisputed tender timeline is:
(1). 30 Days. Within 30 days after filing litigation or submitting your UIM claim to arbitration you must provide the list of disclosures under 31A-22-305.3(9) to the UIM insurance carrier. You must provide a factual basis and a specific money demand that you feel is the correct value of the case.
(2). 60 Days for Carrier to Provide Undisputed Tender. Upon the UIM carrier receiving all disclosures under subsection (9), the carrier has up to 60 days to provide a response indicating what it feels the undisputed amount of the claim is and actually give you a check for that amount. See Utah Code 31A-22-305.3(9)(c). The UIM carrier can ask for an extension.
The Analysis of Utah’s Undisputed Tender.
Providing the UIM carrier with a specific and accurate dollar amount that you feel the UIM claim is worth has value.
The UIM statute requires the insured specify a dollar amount they feel the UIM claim is ultimately worth. Likewise the statute requires the UIM carrier after receiving all disclosures and has gathered all documents to put a dollar value on what they think your UIM claim is worth. If an arbitration verdict or a litigation (jury or judge) verdict is greater than the average between the insured’s specific money value placed on the UIM claim versus the UIM carrier’s undisputed tender, there are increased costs and possible excess judgement assessed against the UIM carrier.
Example. Head-On Collision State Street Orem. You are driving north on Orem State Street. The at-fault car hits you head-on and is 100 percent at-fault for the accident. You break several ribs and have a head concussion. Your bills alone are $35,000. The at-fault driver only had $25,000 in liability insurance to pay for your injuries which is immediately offered. You have $250,000 in underinsured motorist benefits.
After all appropriate disclosures, you formally and officially state that you feel the total value of your UIM claim is $75,000 in additional UIM benefits and the $25,000 from the at-fault driver equaling $100,000.
Your UIM carrier after your disclosures and reviewing the gathered documents values your claim at $75,000. Which includes the first $25,000 already given by the at-fault car’s insurance company.
If the case proceeds to a jury, judge or an arbitration verdict, that verdict must be greater than the average between the UIM carrier’s $75,000 offer and your $100,000 for penalties to be assessed.
If the actual verdict (not voluntary settlement) comes back at anything over $87,500, the UIM carrier is assessed extra costs and expert expenses.
Penalties Assessed Against the UIM Carrier When the Verdict is Greater than the Average
As mentioned above if the UIM carrier misvalues your UIM claims and does not obtain a verdict that is greater than the average between your initial offer and their undisputed tender, increases expert costs are assessed. First the penalties only strike one way—against the UIM carrier for losing this analysis of the undisputed tender. Not against the insured. These provisions are to force the UIM carrier to treat their own insured appropriately and not leave them high and dry, forcing them to litigate without any funds, generally all while their insured are not working and are injured.
The Penalties for Losing This Analysis Are:
If the final verdict obtained through arbitration or litigation is greater than the average between the insured initial demand and the carrier’s undisputed offer the following costs are assessed.
(A) Costs. All normal costs set forth in Rule 54(d), Utah Rules of Civil Procedure. Filing fees, deposition costs, subpoena costs, all very minimal.
(B) Arbiter Costs. The arbitrator or arbitration panel’s fee, and
(C) Expert Costs. The reasonable costs of expert witnesses and depositions used in the presentation of evidence during arbitration or litigation. The costs described in (A)-(C) can’t exceed $5,000.
(D) Excess Verdict. Any excess verdict above the UIM policy limits, but capped at $15,000.