THE DRIVER'S "DUTY TO COOPERATE."
Every insurance policy has a "duty to cooperate" clause. This means that any person seeking coverage under the policy must cooperate with the company's investigation and defense of the claim. Failure to cooperate may be grounds for the insurance company to deny coverage. But that doesn't mean everybody does, in fact, cooperate with the insurance company.
It can be frustrating when the other driver will not contact or cooperate with the adjuster when you are trying to make a claim. I have so many people injured in car wrecks ask me about this situation.
Let's say you have a car accident in Texas and the other driver was at fault. You open a claim with the other driver's insurance company and an adjuster is assigned. The adjuster needs to investigate the accident in order to determine whether their driver is at fault or not. Naturally, they may need to speak with their driver in order to get their version. However, the other driver is not returning the adjuster's calls.
Now, you may ask yourself, "I'm seeking coverage under the policy and I am cooperating. Why am I not being covered?" Technically, you are not seeking coverage under the policy. When you are claiming that someone else is at fault, then your claim is one of legal liability against that person. Since the policy is designed to protect the person who may be liable to you, then your claim is actually against the other driver and their insurance company.
The next section explains this concept in more detail....
Know Your Standing with the Insurance Company.
You are not the insured or covered person under the other driver's policy. The "insured" is the person actually covered under the policy. This may include the person specifically named in the policy or otherwise falling under the definition of a "covered person."
However, this definition does not include you! Rather, you are an outside party making a claim on someone else's policy. You are alleging that the other driver is legally liable to you for damages or injuries you sustained in the accident. This is called a "liability claim" also known as a "third-party" claim.
What is a Liability or Third-Party Claim?
Many people think that the other driver's insurance policy is there to protect them if the other driver is at fault. This is one of the biggest myths of how liability insurance works.
When you make a claim on the other driver's insurance policy, you are essentially asserting a legal claim against the other driver. Therefore, the other driver's insurance company has a duty to protect their driver against your claim. They can protect their driver in several ways:
- They can investigate your claim;
- If the adjuster feels like their driver is at fault, they can choose to settle with you;
- Or, they can reject your claim and retain legal counsel to defend the other driver if you file a lawsuit.
Either way, the insurance company's focus is to protect their driver, not you.
Back to the "Duty to Cooperate."
This leads us back to my initial discussion about the duty to cooperate. In order for the adjuster to protect their driver, they need the driver to cooperate in the investigation and defense of your claim. If the adjuster is unable to speak with their driver about the accident, then the adjuster may not be able to properly investigate and handle the claim.
In the meantime, you are left hanging until their driver cooperates.
Where Does this Leave You?
If you are in this predicament, you have several options. You can make a claim on your insurance policy. This is probably the best way to deal with the situation because you are now dealing with someone who is on your side.
Uninsured Motorist Coverage.
If you have uninsured motorist coverage, then you may be able to make a claim even though the other driver technically has insurance. This is because the other insurance company is not willing to tender their coverage because of the other driver's non-cooperation. You should not have to wait on the other insurance company to move forward just because the other driver is hiding from the claim.
If you had collision coverage, then your insurance company will pay to get your car fixed regardless of the other insurance coverage. However, this only covers your car. Any claims regarding your injuries have to be done through the uninsured motorist coverage.
File a Lawsuit Against the Other Driver.
If filing a claim on your insurance is not an option, then filing a lawsuit is the only option you have left. This is probably to least favorable option.
However, you cannot sue the insurance company directly. You have to sue the other driver. And, when you sue the other driver, the insurance company will hire an attorney to represent and defend the other driver against your lawsuit. If filing suit is your only option, then small claims court might work best for you.
Many times, insurance companies abuse the "cooperation" clause. They will stall your claim even though it is not necessary to talk to the other driver. Maybe there is a police report. Either way, you are at a disadvantage when dealing with the other driver's insurance company. That is why you should keep the option open to file the claim on your own policy.
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