On May 29, 2013, decedent crossed Route 250 in front of his home in Albemarle County to check the mail. As he reached about halfway across the road, he was hit by a red Mustang which continued to speed down the road. Decedent struggled to get up from the road when another vehicle hit him and also failed to stop. He died in the roadway after the second impact.
The first driver was later apprehended by the Albemarle County Police Department, but the second driver was never identified. A wrongful death suit was filed against the apprehended defendant and John Doe.
With witnesses to both impacts establishing liability, the primary dispute was over the amount of insurance coverage available. The apprehended driver had only $25,000 in liability coverage, and the second driver–as a John Doe–was uninsured. The administrator of the estate made claims under decedent’s own policy which provided both uninsured and underinsured motorist coverage with limits of $250,000 “sustained by any one person in any one accident”. The administrator argued that there were two accidents, entitling her to the underinsured policy limits for the first driver (less his $25,000 in liability coverage) and the policy limits for the uninsured claim against John Doe, for a total recovery of $500,000.
The insurer claimed that under Virginia law, there was only one accident and therefore the administrator could only recover up to the per person limit of $250,000.
The administrator, relying upon the decision in O’Neill v. USAA, 57 Va. Cir. 257 (Arlington Cir. 2002), also argued that regardless of the number of accidents, Virginia law and the terms of the policy itself permitted an insured to recover under both the underinsured and the uninsured provisions of the policy, thereby doubling the coverage in this case. The insurer disagreed, relying upon contrary holdings from Stafford County Circuit.
Because the facts were largely undisputed and because the case presented solely legal issues, the parties agreed to arbitrate the case before Judge (ret.) J. Michael Gamble with The McCammon Group. The parties submitted a joint arbitration notebook with the relevant evidence and argued the case before Gamble on Dec. 12, 2018.
Gamble reviewed the evidence and the legal authority and rendered a decision on Dec. 17, 2018, holding that there were in fact two accidents, therefore entitling the administrator to recover the limits of the policy for both the underinsured and uninsured coverages. On the second issue, Gamble found for the insurance company on whether an insured can recover from both the underinsured and uninsured provisions of the same policy. However, because there were two accidents, the terms of the policy provided that the administrator could recover up to the limits for both accidents and the Administrator prevailed.
Type of action: Wrongful Death
Injuries alleged: Death
Name of case: Herring v. Payne
Court: Albemarle Circuit Court
Case no.: CL15-178
Tried before: Arbitration
Name of judge or mediator: Hon. J. Michael Gamble (Ret.)
Date resolved: Dec. 17, 2018
Verdict or settlement: Verdict
Attorneys for plaintiff: Richard C. Armstrong and David M. Irvine, Charlottesville
Insurance carrier: Augusta Mutual Insurance Co.