A. Except as provided in subsection J of this section, no policy or contractof bodily injury or property damage liability insurance relating to theownership, maintenance, or use of a motor vehicle shall be issued ordelivered in this Commonwealth to the owner of such vehicle or shall beissued or delivered by any insurer licensed in this Commonwealth upon anymotor vehicle principally garaged or used in this Commonwealth unless itcontains an endorsement or provisions undertaking to pay the insured all sumsthat he is legally entitled to recover as damages from the owner or operatorof an uninsured motor vehicle, within limits not less than the requirementsof § 46.2-472. Those limits shall equal but not exceed the limits of theliability insurance provided by the policy, unless any one named insuredrejects the additional uninsured motorist insurance coverage by notifying theinsurer as provided in subsection B of § 38.2-2202. This rejection of theadditional uninsured motorist insurance coverage by any one named insuredshall be binding upon all insureds under such policy as defined in subsectionB of this section. The endorsement or provisions shall also obligate theinsurer to make payment for bodily injury or property damage caused by theoperation or use of an underinsured motor vehicle to the extent the vehicleis underinsured, as defined in subsection B of this section. The endorsementor provisions shall also provide for at least $20,000 coverage for damage ordestruction of the property of the insured in any one accident but mayprovide an exclusion of the first $200 of the loss or damage where the lossor damage is a result of any one accident involving an unidentifiable owneror operator of an uninsured motor vehicle.
B. As used in this section, the term "bodily injury" includes deathresulting from bodily injury.
"Insured" as used in subsections A, D, G, and H of this section means thenamed insured and, while resident of the same household, the spouse of thenamed insured, and relatives, wards or foster children of either, while in amotor vehicle or otherwise, and any person who uses the motor vehicle towhich the policy applies, with the expressed or implied consent of the namedinsured, and a guest in the motor vehicle to which the policy applies or thepersonal representative of any of the above.
"Uninsured motor vehicle" means a motor vehicle for which (i) there is nobodily injury liability insurance and property damage liability insurance inthe amounts specified by § 46.2-472, (ii) there is such insurance but theinsurer writing the insurance denies coverage for any reason whatsoever,including failure or refusal of the insured to cooperate with the insurer,(iii) there is no bond or deposit of money or securities in lieu of suchinsurance, (iv) the owner of the motor vehicle has not qualified as aself-insurer under the provisions of § 46.2-368, or (v) the owner or operatorof the motor vehicle is immune from liability for negligence under the lawsof the Commonwealth or the United States, in which case the provisions ofsubsection F shall apply and the action shall continue against the insurer. Amotor vehicle shall be deemed uninsured if its owner or operator is unknown.
A motor vehicle is "underinsured" when, and to the extent that, the totalamount of bodily injury and property damage coverage applicable to theoperation or use of the motor vehicle and available for payment for suchbodily injury or property damage, including all bonds or deposits of money orsecurities made pursuant to Article 15 (§ 46.2-435 et seq.) of Chapter 3 ofTitle 46.2, is less than the total amount of uninsured motorist coverageafforded any person injured as a result of the operation or use of thevehicle.
"Available for payment" means the amount of liability insurance coverageapplicable to the claim of the injured person for bodily injury or propertydamage reduced by the payment of any other claims arising out of the sameoccurrence.
If an injured person is entitled to underinsured motorist coverage under morethan one policy, the following order of priority of policies applies and anyamount available for payment shall be credited against such policies in thefollowing order of priority:
1. The policy covering a motor vehicle occupied by the injured person at thetime of the accident;
2. The policy covering a motor vehicle not involved in the accident underwhich the injured person is a named insured;
3. The policy covering a motor vehicle not involved in the accident underwhich the injured person is an insured other than a named insured.
Where there is more than one insurer providing coverage under one of thepayment priorities set forth, their liability shall be proportioned as totheir respective underinsured motorist coverages.
Recovery under the endorsement or provisions shall be subject to theconditions set forth in this section.
C. There shall be a rebuttable presumption that a motor vehicle is uninsuredif the Commissioner of the Department of Motor Vehicles certifies that, fromthe records of the Department of Motor Vehicles, it appears that: (i) thereis no bodily injury liability insurance and property damage liabilityinsurance in the amounts specified by § 46.2-472 covering the owner oroperator of the motor vehicle; or (ii) no bond has been given or cash orsecurities delivered in lieu of the insurance; or (iii) the owner or operatorof the motor vehicle has not qualified as a self-insurer in accordance withthe provisions of § 46.2-368.
D. If the owner or operator of any motor vehicle that causes bodily injury orproperty damage to the insured is unknown, and if the damage or injuryresults from an accident where there has been no contact between that motorvehicle and the motor vehicle occupied by the insured, or where there hasbeen no contact with the person of the insured if the insured was notoccupying a motor vehicle, then for the insured to recover under theendorsement required by subsection A of this section, the accident shall bereported promptly to either (i) the insurer or (ii) a law-enforcement officerhaving jurisdiction in the county or city in which the accident occurred. Ifit is not reasonably practicable to make the report promptly, the reportshall be made as soon as reasonably practicable under the circumstances.
E. If the owner or operator of any vehicle causing injury or damages isunknown, an action may be instituted against the unknown defendant as "JohnDoe" and service of process may be made by delivering a copy of the motionfor judgment or other pleadings to the clerk of the court in which the actionis brought. Service upon the insurer issuing the policy shall be made asprescribed by law as though the insurer were a party defendant. Theprovisions of § 8.01-288 shall not be applicable to the service of processrequired in this subsection. The insurer shall have the right to filepleadings and take other action allowable by law in the name of John Doe.
F. If any action is instituted against the owner or operator of an uninsuredor underinsured motor vehicle by any insured intending to rely on theuninsured or underinsured coverage provision or endorsement of this policyunder which the insured is making a claim, then the insured shall serve acopy of the process upon this insurer in the manner prescribed by law, asthough the insurer were a party defendant. The provisions of § 8.01-288 shallnot be applicable to the service of process required in this subsection. Theinsurer shall then have the right to file pleadings and take other actionallowable by law in the name of the owner or operator of the uninsured orunderinsured motor vehicle or in its own name. Notwithstanding the provisionsof subsection A, the immunity from liability for negligence of the owner oroperator of a motor vehicle shall not be a bar to the insured obtaining ajudgment enforceable against the insurer for the negligence of the immuneowner or operator, and shall not be a defense available to the insurer to theaction brought by the insured, which shall proceed against the nameddefendant although any judgment obtained against an immune defendant shall beentered in the name of "Immune Defendant" and shall be enforceable againstthe insurer and any other nonimmune defendant as though it were entered inthe actual name of the named immune defendant. Nothing in this subsectionshall prevent the owner or operator of the uninsured motor vehicle fromemploying counsel of his own choice and taking any action in his own interestin connection with the proceeding.
G. Any insurer paying a claim under the endorsement or provisions required bysubsection A of this section shall be subrogated to the rights of the insuredto whom the claim was paid against the person causing the injury, death, ordamage and that person's insurer, although it may deny coverage for anyreason, to the extent that payment was made. The bringing of an actionagainst the unknown owner or operator as John Doe or the conclusion of suchan action shall not bar the insured from bringing an action against the owneror operator proceeded against as John Doe, or against the owner's oroperator's insurer denying coverage for any reason, if the identity of theowner or operator who caused the injury or damages becomes known. Thebringing of an action against an unknown owner or operator as John Doe shalltoll the statute of limitations for purposes of bringing an action againstthe owner or operator who caused the injury or damages until his identitybecomes known. In no event shall an action be brought against an owner oroperator who caused the injury or damages, previously filed against as JohnDoe, more than three years from the commencement of the action against theunknown owner or operator as John Doe in a court of competent jurisdiction.Any recovery against the owner or operator, or the insurer of the owner oroperator shall be paid to the insurer of the injured party to the extent thatthe insurer paid the named insured in the action brought against the owner oroperator as John Doe. However, the insurer shall pay its proportionate partof all reasonable costs and expenses incurred in connection with the action,including reasonable attorney's fees. Nothing in an endorsement or provisionsmade under this subsection nor any other provision of law shall prevent thejoining in an action against John Doe of the owner or operator of the motorvehicle causing the injury as a party defendant, and the joinder is herebyspecifically authorized. No action, verdict or release arising out of a suitbrought under this subsection shall give rise to any defenses in any otheraction brought in the subrogated party's name, including res judicata andcollateral estoppel.
H. No endorsement or provisions providing the coverage required by subsectionA of this section shall require arbitration of any claim arising under theendorsement or provisions, nor may anything be required of the insured exceptthe establishment of legal liability, nor shall the insured be restricted orprevented in any manner from employing legal counsel or instituting legalproceedings.
I. Except as provided in § 65.2-309.1, the provisions of subsections A and Bof § 38.2-2204 and the provisions of subsection A of this section shall notapply to any policy of insurance to the extent that it covers the liabilityof an employer under any workers' compensation law, or to the extent that itcovers liability to which the Federal Tort Claims Act applies. No provisionor application of this section shall limit the liability of an insurer ofmotor vehicles to an employee or other insured under this section who isinjured by an uninsured motor vehicle; provided that in the event an employeeof a self-insured employer receives a workers' compensation award forinjuries resulting from an accident with an uninsured motor vehicle, suchaward shall be set off against any judgment for damages awarded pursuant tothis section for personal injuries resulting from such accident.
J. Policies of insurance whose primary purpose is to provide coverage inexcess of other valid and collectible insurance or qualified self-insurancemay include uninsured motorist coverage as provided in subsection A of thissection. Insurers issuing or providing liability policies that are of anexcess or umbrella type or which provide liability coverage incidental to apolicy and not related to a specifically insured motor vehicle, shall not berequired to offer, provide or make available to those policies uninsured orunderinsured motor vehicle coverage as defined in subsection A of thissection.
K. A liability insurance carrier providing coverage under a policy issued orrenewed on or after July 1, 1988, may pay the entire amount of its availablecoverage without obtaining a release of a claim if the claimant hasunderinsured insurance coverage in excess of the amount so paid. Anyliability insurer making a payment pursuant to this section shall promptlygive notice to its insured and to the insurer which provides the underinsuredcoverage that it has paid the full amount of its available coverage.
L. If the liability insurer or insurers providing coverage to an underinsuredmotor vehicle owner or operator make an irrevocable offer in writing to paythe total amount of liability coverage available for payment with referenceto a claim for property damage or bodily injury, 60 days following writtennotice of the offer to any insurer or insurers providing underinsuredcoverage that have been served pursuant to this section, the insurer orinsurers providing liability coverage shall be relieved of the cost ofdefending the owner or operator incurred thereafter, including expenses aswell as reasonable and necessary attorney fees, and the insurer or insurersproviding the underinsured motorist coverage shall reimburse the liabilityinsurer or insurers for the costs to defend the underinsured motor vehicleowner or operator to the date of the underinsured motorist insurer's offer ofits limit of coverage. The liability insurer or insurers shall nonethelessretain the duty to defend their insured. If underinsured motorist coverage isprovided by more than one insurer, the cost to defend shall be assumed in thesame order of priority as set forth in subsection B with regard to thepayment of underinsured benefits upon the offer of each underinsured motoristinsurer's limit of coverage. This subsection shall not apply in the event ofeither a jury verdict being returned in an amount equal to or less than thetotal liability coverage available for payment or a dispositive rulingdismissing the plaintiff's complaint. This subsection shall not apply tocosts incurred in connection with an appeal.
(Code 1950, § 38-238; 1952, c. 317, § 38.1-381; 1958, c. 282; 1959, Ex.Sess., cc. 42, 70; 1960, c. 462; 1962, c. 457; 1964, c. 477; 1966, cc. 182,459; 1968, cc. 199, 721; 1970, c. 494; 1971, Ex. Sess., c. 216; 1973, cc.225, 390; 1974, c. 87; 1976, cc. 121, 122; 1977, c. 78; 1979, c. 113; 1980,cc. 326, 331; 1981, Sp. Sess., c. 6; 1982, cc. 638, 642; 1984, c. 541; 1985,cc. 39, 325; 1986, c. 562; 1987, c. 519; 1988, cc. 565, 578, 585, 586, 594;1989, c. 621; 1993, c. 381; 1995, cc. 189, 267, 476; 1997, cc. 170, 191;1999, c. 992; 2001, c. 218; 2003, c. 283; 2010, c. 492.)
A. Except as provided in subsection J of this section, no policy or contractof bodily injury or property damage liability insurance relating to theownership, maintenance, or use of a motor vehicle shall be issued ordelivered in this Commonwealth to the owner of such vehicle or shall beissued or delivered by any insurer licensed in this Commonwealth upon anymotor vehicle principally garaged or used in this Commonwealth unless itcontains an endorsement or provisions undertaking to pay the insured all sumsthat he is legally entitled to recover as damages from the owner or operatorof an uninsured motor vehicle, within limits not less than the requirementsof § 46.2-472. Those limits shall equal but not exceed the limits of theliability insurance provided by the policy, unless any one named insuredrejects the additional uninsured motorist insurance coverage by notifying theinsurer as provided in subsection B of § 38.2-2202. This rejection of theadditional uninsured motorist insurance coverage by any one named insuredshall be binding upon all insureds under such policy as defined in subsectionB of this section. The endorsement or provisions shall also obligate theinsurer to make payment for bodily injury or property damage caused by theoperation or use of an underinsured motor vehicle to the extent the vehicleis underinsured, as defined in subsection B of this section. The endorsementor provisions shall also provide for at least $20,000 coverage for damage ordestruction of the property of the insured in any one accident but mayprovide an exclusion of the first $200 of the loss or damage where the lossor damage is a result of any one accident involving an unidentifiable owneror operator of an uninsured motor vehicle.
B. As used in this section, the term "bodily injury" includes deathresulting from bodily injury.
"Insured" as used in subsections A, D, G, and H of this section means thenamed insured and, while resident of the same household, the spouse of thenamed insured, and relatives, wards or foster children of either, while in amotor vehicle or otherwise, and any person who uses the motor vehicle towhich the policy applies, with the expressed or implied consent of the namedinsured, and a guest in the motor vehicle to which the policy applies or thepersonal representative of any of the above.
"Uninsured motor vehicle" means a motor vehicle for which (i) there is nobodily injury liability insurance and property damage liability insurance inthe amounts specified by § 46.2-472, (ii) there is such insurance but theinsurer writing the insurance denies coverage for any reason whatsoever,including failure or refusal of the insured to cooperate with the insurer,(iii) there is no bond or deposit of money or securities in lieu of suchinsurance, (iv) the owner of the motor vehicle has not qualified as aself-insurer under the provisions of § 46.2-368, or (v) the owner or operatorof the motor vehicle is immune from liability for negligence under the lawsof the Commonwealth or the United States, in which case the provisions ofsubsection F shall apply and the action shall continue against the insurer. Amotor vehicle shall be deemed uninsured if its owner or operator is unknown.
A motor vehicle is "underinsured" when, and to the extent that, the totalamount of bodily injury and property damage coverage applicable to theoperation or use of the motor vehicle and available for payment for suchbodily injury or property damage, including all bonds or deposits of money orsecurities made pursuant to Article 15 (§ 46.2-435 et seq.) of Chapter 3 ofTitle 46.2, is less than the total amount of uninsured motorist coverageafforded any person injured as a result of the operation or use of thevehicle.
"Available for payment" means the amount of liability insurance coverageapplicable to the claim of the injured person for bodily injury or propertydamage reduced by the payment of any other claims arising out of the sameoccurrence.
If an injured person is entitled to underinsured motorist coverage under morethan one policy, the following order of priority of policies applies and anyamount available for payment shall be credited against such policies in thefollowing order of priority:
1. The policy covering a motor vehicle occupied by the injured person at thetime of the accident;
2. The policy covering a motor vehicle not involved in the accident underwhich the injured person is a named insured;
3. The policy covering a motor vehicle not involved in the accident underwhich the injured person is an insured other than a named insured.
Where there is more than one insurer providing coverage under one of thepayment priorities set forth, their liability shall be proportioned as totheir respective underinsured motorist coverages.
Recovery under the endorsement or provisions shall be subject to theconditions set forth in this section.
C. There shall be a rebuttable presumption that a motor vehicle is uninsuredif the Commissioner of the Department of Motor Vehicles certifies that, fromthe records of the Department of Motor Vehicles, it appears that: (i) thereis no bodily injury liability insurance and property damage liabilityinsurance in the amounts specified by § 46.2-472 covering the owner oroperator of the motor vehicle; or (ii) no bond has been given or cash orsecurities delivered in lieu of the insurance; or (iii) the owner or operatorof the motor vehicle has not qualified as a self-insurer in accordance withthe provisions of § 46.2-368.
D. If the owner or operator of any motor vehicle that causes bodily injury orproperty damage to the insured is unknown, and if the damage or injuryresults from an accident where there has been no contact between that motorvehicle and the motor vehicle occupied by the insured, or where there hasbeen no contact with the person of the insured if the insured was notoccupying a motor vehicle, then for the insured to recover under theendorsement required by subsection A of this section, the accident shall bereported promptly to either (i) the insurer or (ii) a law-enforcement officerhaving jurisdiction in the county or city in which the accident occurred. Ifit is not reasonably practicable to make the report promptly, the reportshall be made as soon as reasonably practicable under the circumstances.
E. If the owner or operator of any vehicle causing injury or damages isunknown, an action may be instituted against the unknown defendant as "JohnDoe" and service of process may be made by delivering a copy of the motionfor judgment or other pleadings to the clerk of the court in which the actionis brought. Service upon the insurer issuing the policy shall be made asprescribed by law as though the insurer were a party defendant. Theprovisions of § 8.01-288 shall not be applicable to the service of processrequired in this subsection. The insurer shall have the right to filepleadings and take other action allowable by law in the name of John Doe.
F. If any action is instituted against the owner or operator of an uninsuredor underinsured motor vehicle by any insured intending to rely on theuninsured or underinsured coverage provision or endorsement of this policyunder which the insured is making a claim, then the insured shall serve acopy of the process upon this insurer in the manner prescribed by law, asthough the insurer were a party defendant. The provisions of § 8.01-288 shallnot be applicable to the service of process required in this subsection. Theinsurer shall then have the right to file pleadings and take other actionallowable by law in the name of the owner or operator of the uninsured orunderinsured motor vehicle or in its own name. Notwithstanding the provisionsof subsection A, the immunity from liability for negligence of the owner oroperator of a motor vehicle shall not be a bar to the insured obtaining ajudgment enforceable against the insurer for the negligence of the immuneowner or operator, and shall not be a defense available to the insurer to theaction brought by the insured, which shall proceed against the nameddefendant although any judgment obtained against an immune defendant shall beentered in the name of "Immune Defendant" and shall be enforceable againstthe insurer and any other nonimmune defendant as though it were entered inthe actual name of the named immune defendant. Nothing in this subsectionshall prevent the owner or operator of the uninsured motor vehicle fromemploying counsel of his own choice and taking any action in his own interestin connection with the proceeding.
G. Any insurer paying a claim under the endorsement or provisions required bysubsection A of this section shall be subrogated to the rights of the insuredto whom the claim was paid against the person causing the injury, death, ordamage and that person's insurer, although it may deny coverage for anyreason, to the extent that payment was made. The bringing of an actionagainst the unknown owner or operator as John Doe or the conclusion of suchan action shall not bar the insured from bringing an action against the owneror operator proceeded against as John Doe, or against the owner's oroperator's insurer denying coverage for any reason, if the identity of theowner or operator who caused the injury or damages becomes known. Thebringing of an action against an unknown owner or operator as John Doe shalltoll the statute of limitations for purposes of bringing an action againstthe owner or operator who caused the injury or damages until his identitybecomes known. In no event shall an action be brought against an owner oroperator who caused the injury or damages, previously filed against as JohnDoe, more than three years from the commencement of the action against theunknown owner or operator as John Doe in a court of competent jurisdiction.Any recovery against the owner or operator, or the insurer of the owner oroperator shall be paid to the insurer of the injured party to the extent thatthe insurer paid the named insured in the action brought against the owner oroperator as John Doe. However, the insurer shall pay its proportionate partof all reasonable costs and expenses incurred in connection with the action,including reasonable attorney's fees. Nothing in an endorsement or provisionsmade under this subsection nor any other provision of law shall prevent thejoining in an action against John Doe of the owner or operator of the motorvehicle causing the injury as a party defendant, and the joinder is herebyspecifically authorized. No action, verdict or release arising out of a suitbrought under this subsection shall give rise to any defenses in any otheraction brought in the subrogated party's name, including res judicata andcollateral estoppel.
H. No endorsement or provisions providing the coverage required by subsectionA of this section shall require arbitration of any claim arising under theendorsement or provisions, nor may anything be required of the insured exceptthe establishment of legal liability, nor shall the insured be restricted orprevented in any manner from employing legal counsel or instituting legalproceedings.
I. Except as provided in § 65.2-309.1, the provisions of subsections A and Bof § 38.2-2204 and the provisions of subsection A of this section shall notapply to any policy of insurance to the extent that it covers the liabilityof an employer under any workers' compensation law, or to the extent that itcovers liability to which the Federal Tort Claims Act applies. No provisionor application of this section shall limit the liability of an insurer ofmotor vehicles to an employee or other insured under this section who isinjured by an uninsured motor vehicle; provided that in the event an employeeof a self-insured employer receives a workers' compensation award forinjuries resulting from an accident with an uninsured motor vehicle, suchaward shall be set off against any judgment for damages awarded pursuant tothis section for personal injuries resulting from such accident.
J. Policies of insurance whose primary purpose is to provide coverage inexcess of other valid and collectible insurance or qualified self-insurancemay include uninsured motorist coverage as provided in subsection A of thissection. Insurers issuing or providing liability policies that are of anexcess or umbrella type or which provide liability coverage incidental to apolicy and not related to a specifically insured motor vehicle, shall not berequired to offer, provide or make available to those policies uninsured orunderinsured motor vehicle coverage as defined in subsection A of thissection.
K. A liability insurance carrier providing coverage under a policy issued orrenewed on or after July 1, 1988, may pay the entire amount of its availablecoverage without obtaining a release of a claim if the claimant hasunderinsured insurance coverage in excess of the amount so paid. Anyliability insurer making a payment pursuant to this section shall promptlygive notice to its insured and to the insurer which provides the underinsuredcoverage that it has paid the full amount of its available coverage.
L. If the liability insurer or insurers providing coverage to an underinsuredmotor vehicle owner or operator make an irrevocable offer in writing to paythe total amount of liability coverage available for payment with referenceto a claim for property damage or bodily injury, 60 days following writtennotice of the offer to any insurer or insurers providing underinsuredcoverage that have been served pursuant to this section, the insurer orinsurers providing liability coverage shall be relieved of the cost ofdefending the owner or operator incurred thereafter, including expenses aswell as reasonable and necessary attorney fees, and the insurer or insurersproviding the underinsured motorist coverage shall reimburse the liabilityinsurer or insurers for the costs to defend the underinsured motor vehicleowner or operator to the date of the underinsured motorist insurer's offer ofits limit of coverage. The liability insurer or insurers shall nonethelessretain the duty to defend their insured. If underinsured motorist coverage isprovided by more than one insurer, the cost to defend shall be assumed in thesame order of priority as set forth in subsection B with regard to thepayment of underinsured benefits upon the offer of each underinsured motoristinsurer's limit of coverage. This subsection shall not apply in the event ofeither a jury verdict being returned in an amount equal to or less than thetotal liability coverage available for payment or a dispositive rulingdismissing the plaintiff's complaint. This subsection shall not apply tocosts incurred in connection with an appeal.
(Code 1950, § 38-238; 1952, c. 317, § 38.1-381; 1958, c. 282; 1959, Ex.Sess., cc. 42, 70; 1960, c. 462; 1962, c. 457; 1964, c. 477; 1966, cc. 182,459; 1968, cc. 199, 721; 1970, c. 494; 1971, Ex. Sess., c. 216; 1973, cc.225, 390; 1974, c. 87; 1976, cc. 121, 122; 1977, c. 78; 1979, c. 113; 1980,cc. 326, 331; 1981, Sp. Sess., c. 6; 1982, cc. 638, 642; 1984, c. 541; 1985,cc. 39, 325; 1986, c. 562; 1987, c. 519; 1988, cc. 565, 578, 585, 586, 594;1989, c. 621; 1993, c. 381; 1995, cc. 189, 267, 476; 1997, cc. 170, 191;1999, c. 992; 2001, c. 218; 2003, c. 283; 2010, c. 492.)
A. Except as provided in subsection J of this section, no policy or contractof bodily injury or property damage liability insurance relating to theownership, maintenance, or use of a motor vehicle shall be issued ordelivered in this Commonwealth to the owner of such vehicle or shall beissued or delivered by any insurer licensed in this Commonwealth upon anymotor vehicle principally garaged or used in this Commonwealth unless itcontains an endorsement or provisions undertaking to pay the insured all sumsthat he is legally entitled to recover as damages from the owner or operatorof an uninsured motor vehicle, within limits not less than the requirementsof § 46.2-472. Those limits shall equal but not exceed the limits of theliability insurance provided by the policy, unless any one named insuredrejects the additional uninsured motorist insurance coverage by notifying theinsurer as provided in subsection B of § 38.2-2202. This rejection of theadditional uninsured motorist insurance coverage by any one named insuredshall be binding upon all insureds under such policy as defined in subsectionB of this section. The endorsement or provisions shall also obligate theinsurer to make payment for bodily injury or property damage caused by theoperation or use of an underinsured motor vehicle to the extent the vehicleis underinsured, as defined in subsection B of this section. The endorsementor provisions shall also provide for at least $20,000 coverage for damage ordestruction of the property of the insured in any one accident but mayprovide an exclusion of the first $200 of the loss or damage where the lossor damage is a result of any one accident involving an unidentifiable owneror operator of an uninsured motor vehicle.
B. As used in this section, the term "bodily injury" includes deathresulting from bodily injury.
"Insured" as used in subsections A, D, G, and H of this section means thenamed insured and, while resident of the same household, the spouse of thenamed insured, and relatives, wards or foster children of either, while in amotor vehicle or otherwise, and any person who uses the motor vehicle towhich the policy applies, with the expressed or implied consent of the namedinsured, and a guest in the motor vehicle to which the policy applies or thepersonal representative of any of the above.
"Uninsured motor vehicle" means a motor vehicle for which (i) there is nobodily injury liability insurance and property damage liability insurance inthe amounts specified by § 46.2-472, (ii) there is such insurance but theinsurer writing the insurance denies coverage for any reason whatsoever,including failure or refusal of the insured to cooperate with the insurer,(iii) there is no bond or deposit of money or securities in lieu of suchinsurance, (iv) the owner of the motor vehicle has not qualified as aself-insurer under the provisions of § 46.2-368, or (v) the owner or operatorof the motor vehicle is immune from liability for negligence under the lawsof the Commonwealth or the United States, in which case the provisions ofsubsection F shall apply and the action shall continue against the insurer. Amotor vehicle shall be deemed uninsured if its owner or operator is unknown.
A motor vehicle is "underinsured" when, and to the extent that, the totalamount of bodily injury and property damage coverage applicable to theoperation or use of the motor vehicle and available for payment for suchbodily injury or property damage, including all bonds or deposits of money orsecurities made pursuant to Article 15 (§ 46.2-435 et seq.) of Chapter 3 ofTitle 46.2, is less than the total amount of uninsured motorist coverageafforded any person injured as a result of the operation or use of thevehicle.
"Available for payment" means the amount of liability insurance coverageapplicable to the claim of the injured person for bodily injury or propertydamage reduced by the payment of any other claims arising out of the sameoccurrence.
If an injured person is entitled to underinsured motorist coverage under morethan one policy, the following order of priority of policies applies and anyamount available for payment shall be credited against such policies in thefollowing order of priority:
1. The policy covering a motor vehicle occupied by the injured person at thetime of the accident;
2. The policy covering a motor vehicle not involved in the accident underwhich the injured person is a named insured;
3. The policy covering a motor vehicle not involved in the accident underwhich the injured person is an insured other than a named insured.
Where there is more than one insurer providing coverage under one of thepayment priorities set forth, their liability shall be proportioned as totheir respective underinsured motorist coverages.
Recovery under the endorsement or provisions shall be subject to theconditions set forth in this section.
C. There shall be a rebuttable presumption that a motor vehicle is uninsuredif the Commissioner of the Department of Motor Vehicles certifies that, fromthe records of the Department of Motor Vehicles, it appears that: (i) thereis no bodily injury liability insurance and property damage liabilityinsurance in the amounts specified by § 46.2-472 covering the owner oroperator of the motor vehicle; or (ii) no bond has been given or cash orsecurities delivered in lieu of the insurance; or (iii) the owner or operatorof the motor vehicle has not qualified as a self-insurer in accordance withthe provisions of § 46.2-368.
D. If the owner or operator of any motor vehicle that causes bodily injury orproperty damage to the insured is unknown, and if the damage or injuryresults from an accident where there has been no contact between that motorvehicle and the motor vehicle occupied by the insured, or where there hasbeen no contact with the person of the insured if the insured was notoccupying a motor vehicle, then for the insured to recover under theendorsement required by subsection A of this section, the accident shall bereported promptly to either (i) the insurer or (ii) a law-enforcement officerhaving jurisdiction in the county or city in which the accident occurred. Ifit is not reasonably practicable to make the report promptly, the reportshall be made as soon as reasonably practicable under the circumstances.
E. If the owner or operator of any vehicle causing injury or damages isunknown, an action may be instituted against the unknown defendant as "JohnDoe" and service of process may be made by delivering a copy of the motionfor judgment or other pleadings to the clerk of the court in which the actionis brought. Service upon the insurer issuing the policy shall be made asprescribed by law as though the insurer were a party defendant. Theprovisions of § 8.01-288 shall not be applicable to the service of processrequired in this subsection. The insurer shall have the right to filepleadings and take other action allowable by law in the name of John Doe.
F. If any action is instituted against the owner or operator of an uninsuredor underinsured motor vehicle by any insured intending to rely on theuninsured or underinsured coverage provision or endorsement of this policyunder which the insured is making a claim, then the insured shall serve acopy of the process upon this insurer in the manner prescribed by law, asthough the insurer were a party defendant. The provisions of § 8.01-288 shallnot be applicable to the service of process required in this subsection. Theinsurer shall then have the right to file pleadings and take other actionallowable by law in the name of the owner or operator of the uninsured orunderinsured motor vehicle or in its own name. Notwithstanding the provisionsof subsection A, the immunity from liability for negligence of the owner oroperator of a motor vehicle shall not be a bar to the insured obtaining ajudgment enforceable against the insurer for the negligence of the immuneowner or operator, and shall not be a defense available to the insurer to theaction brought by the insured, which shall proceed against the nameddefendant although any judgment obtained against an immune defendant shall beentered in the name of "Immune Defendant" and shall be enforceable againstthe insurer and any other nonimmune defendant as though it were entered inthe actual name of the named immune defendant. Nothing in this subsectionshall prevent the owner or operator of the uninsured motor vehicle fromemploying counsel of his own choice and taking any action in his own interestin connection with the proceeding.
G. Any insurer paying a claim under the endorsement or provisions required bysubsection A of this section shall be subrogated to the rights of the insuredto whom the claim was paid against the person causing the injury, death, ordamage and that person's insurer, although it may deny coverage for anyreason, to the extent that payment was made. The bringing of an actionagainst the unknown owner or operator as John Doe or the conclusion of suchan action shall not bar the insured from bringing an action against the owneror operator proceeded against as John Doe, or against the owner's oroperator's insurer denying coverage for any reason, if the identity of theowner or operator who caused the injury or damages becomes known. Thebringing of an action against an unknown owner or operator as John Doe shalltoll the statute of limitations for purposes of bringing an action againstthe owner or operator who caused the injury or damages until his identitybecomes known. In no event shall an action be brought against an owner oroperator who caused the injury or damages, previously filed against as JohnDoe, more than three years from the commencement of the action against theunknown owner or operator as John Doe in a court of competent jurisdiction.Any recovery against the owner or operator, or the insurer of the owner oroperator shall be paid to the insurer of the injured party to the extent thatthe insurer paid the named insured in the action brought against the owner oroperator as John Doe. However, the insurer shall pay its proportionate partof all reasonable costs and expenses incurred in connection with the action,including reasonable attorney's fees. Nothing in an endorsement or provisionsmade under this subsection nor any other provision of law shall prevent thejoining in an action against John Doe of the owner or operator of the motorvehicle causing the injury as a party defendant, and the joinder is herebyspecifically authorized. No action, verdict or release arising out of a suitbrought under this subsection shall give rise to any defenses in any otheraction brought in the subrogated party's name, including res judicata andcollateral estoppel.
H. No endorsement or provisions providing the coverage required by subsectionA of this section shall require arbitration of any claim arising under theendorsement or provisions, nor may anything be required of the insured exceptthe establishment of legal liability, nor shall the insured be restricted orprevented in any manner from employing legal counsel or instituting legalproceedings.
I. Except as provided in § 65.2-309.1, the provisions of subsections A and Bof § 38.2-2204 and the provisions of subsection A of this section shall notapply to any policy of insurance to the extent that it covers the liabilityof an employer under any workers' compensation law, or to the extent that itcovers liability to which the Federal Tort Claims Act applies. No provisionor application of this section shall limit the liability of an insurer ofmotor vehicles to an employee or other insured under this section who isinjured by an uninsured motor vehicle; provided that in the event an employeeof a self-insured employer receives a workers' compensation award forinjuries resulting from an accident with an uninsured motor vehicle, suchaward shall be set off against any judgment for damages awarded pursuant tothis section for personal injuries resulting from such accident.
J. Policies of insurance whose primary purpose is to provide coverage inexcess of other valid and collectible insurance or qualified self-insurancemay include uninsured motorist coverage as provided in subsection A of thissection. Insurers issuing or providing liability policies that are of anexcess or umbrella type or which provide liability coverage incidental to apolicy and not related to a specifically insured motor vehicle, shall not berequired to offer, provide or make available to those policies uninsured orunderinsured motor vehicle coverage as defined in subsection A of thissection.
K. A liability insurance carrier providing coverage under a policy issued orrenewed on or after July 1, 1988, may pay the entire amount of its availablecoverage without obtaining a release of a claim if the claimant hasunderinsured insurance coverage in excess of the amount so paid. Anyliability insurer making a payment pursuant to this section shall promptlygive notice to its insured and to the insurer which provides the underinsuredcoverage that it has paid the full amount of its available coverage.
L. If the liability insurer or insurers providing coverage to an underinsuredmotor vehicle owner or operator make an irrevocable offer in writing to paythe total amount of liability coverage available for payment with referenceto a claim for property damage or bodily injury, 60 days following writtennotice of the offer to any insurer or insurers providing underinsuredcoverage that have been served pursuant to this section, the insurer orinsurers providing liability coverage shall be relieved of the cost ofdefending the owner or operator incurred thereafter, including expenses aswell as reasonable and necessary attorney fees, and the insurer or insurersproviding the underinsured motorist coverage shall reimburse the liabilityinsurer or insurers for the costs to defend the underinsured motor vehicleowner or operator to the date of the underinsured motorist insurer's offer ofits limit of coverage. The liability insurer or insurers shall nonethelessretain the duty to defend their insured. If underinsured motorist coverage isprovided by more than one insurer, the cost to defend shall be assumed in thesame order of priority as set forth in subsection B with regard to thepayment of underinsured benefits upon the offer of each underinsured motoristinsurer's limit of coverage. This subsection shall not apply in the event ofeither a jury verdict being returned in an amount equal to or less than thetotal liability coverage available for payment or a dispositive rulingdismissing the plaintiff's complaint. This subsection shall not apply tocosts incurred in connection with an appeal.
(Code 1950, § 38-238; 1952, c. 317, § 38.1-381; 1958, c. 282; 1959, Ex.Sess., cc. 42, 70; 1960, c. 462; 1962, c. 457; 1964, c. 477; 1966, cc. 182,459; 1968, cc. 199, 721; 1970, c. 494; 1971, Ex. Sess., c. 216; 1973, cc.225, 390; 1974, c. 87; 1976, cc. 121, 122; 1977, c. 78; 1979, c. 113; 1980,cc. 326, 331; 1981, Sp. Sess., c. 6; 1982, cc. 638, 642; 1984, c. 541; 1985,cc. 39, 325; 1986, c. 562; 1987, c. 519; 1988, cc. 565, 578, 585, 586, 594;1989, c. 621; 1993, c. 381; 1995, cc. 189, 267, 476; 1997, cc. 170, 191;1999, c. 992; 2001, c. 218; 2003, c. 283; 2010, c. 492.)
