Uninsured and underinsured motorist coverage can be important after a Virginia car accident when the at-fault driver has no insurance or not enough liability coverage to cover the injured person’s damages. For people injured on Interstate 81, on the streets of Roanoke, or elsewhere in Virginia, UM/UIM coverage can provide an additional source of insurance recovery when the at-fault driver’s coverage is unavailable or insufficient.
At Fishwick & Associates PLC, attorney John P. Fishwick Jr. represents people injured in car accidents in Roanoke and across the Commonwealth of Virginia. Our Roanoke car accident lawyers handle uninsured and underinsured motorist claims, including disputes involving a client’s own insurance company.
This guide explains how UM/UIM coverage works in Virginia, when a vehicle qualifies as uninsured or underinsured, how coverage limits and elections can affect available benefits, how multiple policies are prioritized, and what can happen if an insurer disputes the claim. Call Fishwick & Associates PLC at (540) 345-5890 to speak with our experienced Virginia personal injury attorney.
What Is UIM Coverage and Why Does It Matter in Virginia?
UM and UIM address different insurance gaps. Uninsured motorist coverage, or UM, can apply when the at-fault vehicle is uninsured. Underinsured motorist coverage, or UIM, can apply when the at-fault vehicle has liability coverage but the available coverage is not enough to cover the injured person’s damages, subject to the available UIM limits. Virginia requires UM/UIM coverage in motor vehicle liability policies subject to § 38.2-2206, although certain excess and umbrella policies are exempt under subsection J.
UM/UIM coverage can apply to both bodily injury and property damage. When property damage results from an accident involving an unidentifiable owner or operator of an uninsured vehicle, a policy can exclude the first $200 of the loss.
What Counts as an Uninsured or Underinsured Vehicle?
Section 38.2-2206(B) treats a vehicle as uninsured when any of the following applies:
- There is no bodily injury liability and property damage liability insurance in the amounts specified by § 46.2-472.
- Liability insurance exists, but the insurer writing it denies coverage for any reason whatsoever, including the insured’s failure or refusal to cooperate with the insurer.
- There is no bond or deposit of money or securities in lieu of such insurance.
- The owner has not qualified as a self-insurer under § 46.2-368.
- The owner or operator is immune from liability for negligence under the laws of the Commonwealth or the United States, in which case subsection F applies and the action continues against the insurer.
A motor vehicle is also deemed uninsured if its owner or operator is unknown. UM coverage can therefore apply to a hit-and-run claim when the injured person meets the applicable policy and statutory requirements. An underinsured vehicle is different: the bodily injury and property damage coverage available for payment is less than the damages sustained, up to the UIM coverage available to the injured person.
How Much UM/UIM Coverage Does Virginia Require?
Unless a named insured reduces the UM/UIM limits, those limits match the policy’s liability limits. For example, a policy with $100,000 per person and $200,000 per accident in bodily injury liability coverage would carry the same bodily injury UM/UIM limits unless they were reduced.
Any reduced UM/UIM limits must remain at or above the minimum required by law. For policies effective on or after January 1, 2025, § 46.2-472 sets minimum limits of $50,000 per person and $100,000 per accident for bodily injury, plus $25,000 for property damage. Under § 38.2-2202(B), an insurer can require the request to reduce coverage to be in writing.
If one named insured reduces the UM/UIM limits, that election binds all insureds under the policy. For example, if spouses share a policy and one named insured reduces the UM/UIM limits to the statutory minimum, those lower limits also apply to the other spouse.
Car Accident Attorney in Roanoke – Fishwick & Associates PLC
John P. Fishwick Jr., Esq.
John P. Fishwick Jr. is a Roanoke native and nationally recognized trial lawyer with decades of courtroom experience. He represents injured people throughout Virginia in personal injury and wrongful death cases, including motor vehicle claims involving uninsured and underinsured drivers. John earned his J.D. cum laude from the Washington and Lee University School of Law in 1983 after graduating from Harvard University and later served as United States Attorney for the Western District of Virginia.
John has been selected to the Virginia Super Lawyers list and recognized in The Best Lawyers in America for multiple years. He has also been named to Virginia Business Magazine’s Legal Elite and holds an AV Preeminent peer review rating from Martindale-Hubbell. John has served on the Board of Governors of the Virginia Trial Lawyers Association and the Virginia State Bar’s Bar Council. His longstanding involvement in Virginia’s legal community complements his work representing people in serious injury matters.
Is My UIM Payout Reduced by the At-Fault Driver’s Insurance?
Under § 38.2-2206(A), UIM coverage is paid without a credit for the at-fault driver’s liability coverage unless a named insured elected the reduced calculation. That election binds all insureds under the policy. When the election applies, § 38.2-2206(B)(3) credits available liability coverage against UIM policies in the first payment priority, meaning the policy or policies covering the vehicle the injured person occupied at the time of the crash. Section 38.2-2202(C) requires a request to change how UIM coverage is calculated to be in writing.
Virginia changed the default UIM calculation for new and renewal policies effective on or after July 1, 2023. Before that change, available liability coverage was credited against the amount payable under UIM coverage. For policies issued, delivered, or renewed after July 1, 2025, § 38.2-2202(C) also requires a notice explaining that the insured can change how UIM coverage is calculated.
Assume the at-fault driver has $50,000 in liability coverage available for payment and the vehicle occupied by the injured person has a $100,000 UIM limit. If the damages support the amounts shown and no other policy term changes the available coverage, the potential payments differ as follows:
| Example | No UIM reduction election | UIM reduction election |
|---|---|---|
| Liability coverage available for payment | $50,000 | $50,000 |
| UIM policy limit | $100,000 | $100,000 |
| Potential UIM payment | Up to $100,000 | Up to $50,000 |
| Potential total from both coverages | Up to $150,000 | Up to $100,000 |
Can I Combine Coverage From Multiple UIM Policies?
More than one UM/UIM policy can apply to the same injured person. Section 38.2-2206(B)(2) sets the order of payment: first, the policy covering the vehicle the injured person occupied at the time of the crash; second, a policy covering a vehicle not involved in the crash under which the injured person is a named insured; and third, a policy covering a vehicle not involved in the crash under which the injured person is another type of insured. If more than one insurer provides coverage at the same priority level, their shares are apportioned based on their available UM/UIM coverage.
Household and business policies can also provide relevant UM/UIM coverage depending on the policy terms and the injured person’s status as an insured. Fishwick & Associates PLC can review potentially applicable policies and assess how Virginia’s statutory payment order affects the claim.
How Do You Settle With the At-Fault Driver and Keep UIM?
Under § 38.2-2206(K), an injured person can settle with the underinsured driver’s liability insurer and the driver for the liability insurer’s available limits and execute a release without giving up the UIM claim. After those available limits are paid, the liability insurer has no further duties to its insured for that claim, and the UIM insurer loses its subrogation claim against the released driver unless the driver later unreasonably fails to cooperate as required by the statute.
Section 38.2-2206(L) requires a written settlement and includes a specific notice for the underinsured driver. The standard procedure uses an agreement signed by the injured person and the underinsured driver, with the driver initialing the required notice. Current Virginia law also provides an alternative to obtaining the driver’s signature and initials: the liability insurer can send the notice and release by certified mail, return receipt requested, to the driver’s last known address.
Key Takeaway: A settlement for the liability insurer’s available limits can preserve the UIM claim when the procedures in subsections K and L are properly followed.
Fishwick & Associates PLC can review a proposed release before it is executed and identify issues that could affect the remaining UIM claim.
What Happens If the UIM Insurer Refuses to Pay?
If a UIM claim cannot be resolved, the injured person can file an action against the owner or operator of the underinsured vehicle and serve the UIM insurer with a copy of the process as though the insurer were a party defendant. Section 38.2-2206(F) then allows the insurer to file pleadings and participate in the case in the driver’s name or in its own name.
The UIM insurer can dispute fault, causation, the nature and extent of the injuries, and the amount of damages because those issues affect what the insurer owes. The fact that it issued the injured person’s policy does not prevent it from defending against the claim in litigation.
After a subsection K settlement and payment of the liability insurer’s available limits, subsection M requires the released driver to be the named defendant in the UIM action. The UIM insurer is served with the complaint, but the released driver does not have to be served. If an action was already pending when the liability limits were paid, it remains pending against the released defendant. If the injured person obtains a verdict against that driver, judgment is entered in the name “Released Defendant” and can be enforced against the UIM insurer up to its UIM limits and against any unreleased defendant.
Legal Help for Uninsured and Underinsured Motorist Claims in Virginia
UM/UIM claims can involve two separate questions: what damages the injured person is legally entitled to recover from the at-fault driver and what UM/UIM coverage is available under the applicable policy or policies. If payment is disputed, the policy terms, coverage elections, and evidence supporting the claim can affect how the matter proceeds.
Attorney John P. Fishwick Jr. brings decades of trial experience to serious injury matters where insurance coverage can affect the available recovery. Our Virginia car accident attorneys can address insurer disputes and handle any release, service, or litigation requirements that apply to the UIM claim.
Call Fishwick & Associates PLC at (540) 345-5890 or complete our online contact form to schedule a free consultation. Our office is located at 30 Franklin Rd SW Ste 700, Roanoke, VA 24011, serving injured clients throughout the Roanoke Valley and across Virginia.
Frequently Asked Questions
Is UIM coverage required in Virginia?
Virginia motor vehicle liability policies covered by § 38.2-2206 must include UM/UIM coverage, although certain excess and umbrella policies are exempt. A named insured can reduce the limits to the statutory minimum but cannot eliminate required coverage.
Does UM coverage apply to a hit-and-run driver?
A hit-and-run claim involving an unidentified driver can fall within UM coverage, subject to the applicable policy and statutory requirements.
Can my UIM carrier deny my claim even though I pay the premiums?
A UIM carrier can dispute what it owes under the claim, including disagreements over liability, causation, or damages. An unresolved dispute can proceed to litigation.
What happens if the at-fault driver’s insurer denies coverage?
If the liability insurer denies coverage, the vehicle is treated as an uninsured motor vehicle under § 38.2-2206(B). If the injured person qualifies for UM coverage, they can pursue benefits under that coverage. Fishwick & Associates PLC can review the coverage denial and assess the UM coverage that may be available. Call (540) 345-5890 to discuss the claim.
Will my UIM claim be reduced by what the at-fault driver paid?
For new and renewal policies effective on or after July 1, 2023, liability coverage is not credited against UIM benefits unless a named insured chose the reduced calculation. Any credit under that election applies only to first-priority UIM policies.
Does UIM coverage pay for property damage?
UM/UIM coverage can include property damage. For policies effective on or after January 1, 2025, the applicable UM/UIM property damage minimum is $25,000. A policy can exclude the first $200 of loss when the uninsured vehicle’s owner or operator cannot be identified.
Can I recover under more than one UIM policy?
More than one UM/UIM policy can apply. Section 38.2-2206(B)(2) sets the order of payment, and coverage under another policy depends on whether the injured person qualifies as an insured under that policy.
