A requirement under most Illinois insurance policies is that the possible subrogation rights of the UIM carrier must be protected, or waived by that carrier, before making a settlement on the underlying case. It is incumbent on you, as the lawyer, that you notify the third party carrier of an offer to settle the third party case and get explicit permission from your client’s UIM carrier to sign a release in favor of the tortfeasor. Your client’s carrier has the option to “match or waive” the amount offered, that is, they can ask that your client not sign a release, keep the claim open, but they must advance the amount offered by the third party carrier within thirty days of receiving your notice.
It is my experience that few carriers will ever advance that money, but they must be given the opportunity to do so. And then they can either waive it quickly, or by doing nothing for thirty days after receiving notice, you can consider it waived. You do not want to be in a situation to allege the tortfeasor was uncollectible, after failing to give your UIM carrier their thirty days to “match or waive” their subro rights. The case of Progressive Direct Ins. Co. v. Jungkans holds that there must be prejudice to the carrier if their subro rights are not protected, but you do not want to find yourself litigating whether a tortfeasor is collectible, after failing to protect those rights of the UIM carrier.
If you are unsure of the forms to use or requirements to initiate your UIM claim, call me, Michael Mannis at 312-704-4300 for help. I serve as appointed arbitrator on many UM and UIM claims, represent many claimants on their UM and UIM claims and I’m happy to help.