How to Settle Underinsured Motorist Cases Under VA Code 38.2-2206(K)

The new law (2015 amendments to §38.2-2206) replaces entirely old subsections (K) and (L) and adds new subsections (M) and (N) as well as adding new code §8.01-66.1:1 effective for policies issued or renewed in 2016 for auto accidents that occur after the date of issue or renewal.

Under the new §38.2-2206 (L), the UIM carrier’s subrogation and its consent to settle requirement – along with the liability carrier’s duty to defend – end upon payment of the liability carrier’s available policy limits to the plaintiff.

The major changes brought about by the new UIM settlement procedure law are detailed in our blog post of January 7, 2016.

¹ For the new Virginia UIM settlement procedure law to be in effect, the policies must have been issued or renewed in 2016 before your accident; otherwise, the old law is in effect. The term “old UIM settlement procedure law” or “old law” refers to the UIM settlement procedure law in effect before the new 2016 law is effective for each individual case (not necessarily January 1, 2016). The “new law” or “new UIM settlement procedure law” refers to the changes made to §38.2-2206 (L) (M) (N) by the General Assembly in 2015 effective for policies issued or renewed after January 1, 2016 (but before your client’s accident in 2016). The old law will be with us for some time for auto accidents which occur in 2016 -- before the defendant’s liability policy issued or renewed -- if service of process needs to be withheld, and the case non-suited and re-filed, especially where the plaintiff needs multiple future surgeries. Therefore, it will be vitally important for your attorney to know which law applies, the old or new. The first step in every case must be “Find the Date” the policies were issued or renewed in 2016.

In some cases, joint tortfeasors, for example, both the old and new law could apply. For example if the plaintiff’s auto collision occurred on December 15, 2016 and Defendant A’s liability policy was renewed on December 30, 2016, the “old law” would apply. If Defendant B’s policy renewed before the collision, on December 1, 2016, the new law would apply.

Gerald Schwartz only represents injured people and families who have lost loved ones due to someone else’s fault. He is well known throughout Virginia for maximizing a client’s recovery with underinsured motorist (UIM) insurance coverage.

To speak with Gerald Schwartz personally, please call 1-800-423-0055.