44-6413. Uninsured and underinsured motorist coverages; exceptions; exclusions; requirements; rules and regulations.
(1) The uninsured and underinsured motorist coverages provided in the Uninsured and Underinsured Motorist Insurance Coverage Act shall not apply to:
(a) Bodily injury, sickness, disease, or death of the insured with respect to which the insured or his or her representative makes, without the written consent of the insurer, any settlement with or obtains any judgment against any person who may be legally liable for any injuries if such settlement adversely affects the rights of the insurer, except that this subdivision shall not apply to underinsured motorist coverage when the insured has given notice to the insurer, in compliance with subsection (2) of section 44-6412, and the insurer has failed to make the required payment to protect its right of subrogation;
(b) Bodily injury, sickness, disease, or death of an insured while occupying a vehicle owned by, but not insured by, the named insured or a spouse or relative residing with the named insured;
(c) Bodily injury, sickness, disease, or death of an insured while occupying an owned vehicle which is used as a public or livery conveyance and which is not insured as such;
(d) Bodily injury, sickness, disease, or death of an insured through being struck by a vehicle owned by the named insured or a spouse or relative residing with the named insured; and
(e) Bodily injury, sickness, disease, or death of the insured with respect to which the applicable statute of limitations has expired on the insured's claim against the uninsured or underinsured motorist.
(2) Insurers providing motor vehicle liability insurance coverage on an excess or umbrella basis or incidental to some other basic coverage shall not be required to offer, provide, or make available coverage conforming to the Uninsured and Underinsured Motorist Insurance Coverage Act.
(3) An insurer may make underinsured motorist coverage a part of uninsured motorist coverage.
(4) Nothing in the Uninsured and Underinsured Motorist Insurance Coverage Act shall be construed to prevent an insurer from offering, making available, or providing coverage under terms and conditions more favorable to its insured or in limits higher than are required by the act.
(5) No policy subject to the Uninsured and Underinsured Motorist Insurance Coverage Act shall define insured, for purposes of the uninsured and underinsured coverages provided in the act, so as to exclude any person occupying the insured motor vehicle with the express or implied permission of an insured.
(6) The Director of Insurance shall adopt and promulgate rules and regulations as are necessary to provide that the language relating to coverages described in the Uninsured and Underinsured Motorist Insurance Coverage Act is not unfair, inequitable, misleading, or deceptive and does not encourage misrepresentation of the coverage.
Source
Annotations
1. Statute of limitations
2. Miscellaneous
1. Statute of limitations
An insured must, within the statute of limitations and utilizing the procedures set forth in section 44-6412, file suit against or settle with all underinsured or uninsured tort-feasors involved in an automobile accident. Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d 730 (2008).
Subdivision (1)(e) of this section does not apply if an insured timely files a claim against an uninsured or underinsured motorist, because the statute of limitations on the insured's claim against the uninsured or underinsured motorist never expired. Reimers-Hild v. State, 274 Neb. 438, 741 N.W.2d 155 (2007).
Subsection (1)(e) of this section does not apply when an insured has settled his or her claim against an uninsured or underinsured motorist before the statute of limitations applicable to that claim would have expired. Reimers-Hild v. State, 274 Neb. 438, 741 N.W.2d 155 (2007).
An insured fails to comply with subdivision (1)(e) when the statute of limitations on her claim against the uninsured or underinsured motorist expires prior to the filing of the suit against her insurer. Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693 N.W.2d 522 (2005).
Subdivision (1)(e) of this section applies in the situation where the insured's suit against the uninsured or underinsured motorist is dismissed without prejudice and the suit against the insurer is not filed within the applicable 4-year statute of limitations for actions in tort. Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693 N.W.2d 522 (2005).
Subdivision (1)(e) of this section does not apply in situations where the insured files suit against the tort-feasor within the applicable 4-year statute of limitations for actions in tort. In such a situation, the insured's suit for uninsured or underinsured motorist benefits is analyzed under the auspices of the 5-year statute of limitations for actions upon written contracts. Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693 N.W.2d 522 (2005).
Subdivision (1)(e) of this section serves to bar certain claims for uninsured and underinsured motorist coverage. Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693 N.W.2d 522 (2005).
Subdivision (1)(e) serves as a prerequisite to an insured's suit against the insurer for uninsured or underinsured motorist coverage. Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693 N.W.2d 522 (2005).
The dismissal of the insured's suit against the uninsured or underinsured motorist without prejudice does not toll the underlying 4-year statute of limitations for the purposes of subdivision (1)(e) of this section. Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693 N.W.2d 522 (2005).
The purpose of subdivision (1)(e) is to protect the insurer under circumstances where it may have to pay uninsured or underinsured motorist benefits by making it the responsibility of the insured to preserve the cause of action against the tort-feasor in order to protect the insurer's rights against the tort-feasor. Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693 N.W.2d 522 (2005).
Subsection (1)(e) of this section operates as a bar to an action for uninsured motorist benefits where the insured claimant does not commence an action against the tort-feasor within the applicable limitations period. Where the injured party claiming underinsured motorist benefits commences a timely claim against the tort-feasor, the 5-year statute of limitations for actions on written contracts set forth in section 25-205 applies, not subsection (1)(e) of this section. Snyder v. Case and EMCASCO Ins. Co., 259 Neb. 621, 611 N.W.2d 409 (2000).
This section is a specific statute addressing the time period within which an uninsured or underinsured motorist coverage claim must be brought against the uninsured or underinsured motorist coverage insurer, and it controls over section 25-205 (5-year statute of limitations) in situations where the applicable statute of limitations has expired on the insured's underlying claim against the uninsured or underinsured motorist. When the statute of limitations has not expired on the insured's underlying claim, section 25-205, which provides for a 5-year statute of limitations on written contracts, is the governing statute of limitations and this section is inapplicable. Schrader v. Farmers Mut. Ins. Co., 259 Neb. 87, 608 N.W.2d 194 (2000).
Subsection (1)(e) of this section operates as a statute of limitations by creating a specific limitation period for actions against insurers for uninsured motorist benefits. Subsection (1)(e) of this section limits liability of insurer to period of time during which insured still has viable claim against uninsured motorist. Kratochvil v. Motor Club Ins. Assn., 255 Neb. 977, 588 N.W.2d 565 (1999).
2. Miscellaneous
Unless one of the exclusions set forth in this section applies, an insured is entitled to recover for injuries sustained in any accident, so long as the injuries were caused by an uninsured or underinsured motor vehicle. In other words, the exclusions provided by the Uninsured and Underinsured Motorist Insurance Coverage Act in this section are the only exceptions permitted to the coverage mandated by the act. Kline v. Farmers Ins. Exch., 277 Neb. 874, 766 N.W.2d 118 (2009).
An uninsured or underinsured motorist policy that excluded coverage for vehicles owned by the insured, but not covered under "this policy" did not violate this section or public policy. Van Ert v. State Farm Mut. Auto. Ins. Co., 276 Neb. 908, 758 N.W.2d 36 (2008).
If the insured is injured in a "motor vehicle" that the insured or a family member residing with the insured could have insured, but did not, then uninsured/underinsured motorist coverage will not be mandated for injuries arising out of that accident. Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d 730 (2008).
Subsection (1)(e) of this section does not require that the insured file an action against or settle with all motorists tangentially involved in an accident, and uninsured or underinsured motorist coverage is not barred where the person alleged to have been "the uninsured or underinsured motorist" was not, in fact a tort-feasor against whom the motorist had any "claim." Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d 730 (2008).
Unless one of the exclusions set forth in this section applies, an insured is entitled to recover for injuries sustained in any accident, so long as the injuries were caused by an "underinsured motor vehicle" or an "uninsured motor vehicle." Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d 730 (2008).
The purpose of subsection (1)(e) of this section is the protection of the insurer when it may have to pay uninsured or underinsured motorist benefits. This section makes it the responsibility of the insured to preserve the claim against the tort-feasor in order to protect the insurer's rights against the tort-feasor. Reimers-Hild v. State, 274 Neb. 438, 741 N.W.2d 155 (2007).
This section is irrelevant when the party seeking coverage under an uninsured motorist policy provision is not a named insured of that policy. Hillabrand v. American Fam. Mut. Ins. Co., 271 Neb. 585, 713 N.W.2d 494 (2006).
The term "settlement" as used in subsection (1)(a) of this section means that the parties to a controversy must come to an agreement that is a final resolution of the controversy. Horace Mann Cos. v. Pinaire, 248 Neb. 640, 538 N.W.2d 168 (1995).
Insurers providing excess or umbrella coverage need not provide uninsured motorist coverage, and insurers may make underinsured motorist coverage part of uninsured motorist coverage. American States Ins. Co. v. Farm Bureau Ins. Co., 7 Neb. App. 507, 583 N.W.2d 358 (1998).