The Rear-End Collision and the "Gap" Demand: Evaluating a Connecticut UIM Claim
Maria, a Hartford resident, holds a Connecticut personal auto policy with liability limits of 100/300 and matching uninsured/underinsured motorist limits of 100/300. In March her sedan was rear-ended at a Wethersfield intersection by a driver insured at Connecticut's minimum 25/50/20. Maria's medical bills are $85,000, her documented lost wages are $20,000, and her attorney values pain and suffering at $45,000. The tortfeasor's carrier has tendered its $25,000 per-person limit. A defense biomechanical review argues Maria braked abruptly for no reason, assigning her 20% comparative fault; her attorney calls that "speculative" but concedes a jury could find some fault. Her attorney now demands the full $100,000 UIM limit, writing that "the other policy is $75,000 short, so your policy owes the gap."
1. How should the adjuster calculate the underinsured motorist exposure? Walk through the arithmetic.
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Step 1 - Establish the claimant's total damages. The tort measure is medical ($85,000) + lost wages ($20,000) + general damages ($45,000) = $150,000. The adjuster should test the $45,000 general damages figure against venue and injury severity rather than accept it; if the soft-tissue component is discounted to, say, $35,000, total damages fall to $140,000 and every downstream number changes.
Step 2 - Apply Connecticut's modified comparative fault. Connecticut bars recovery only at 51% or more fault; below that, damages are reduced proportionally. At 20%: $150,000 × 0.80 = $120,000 recoverable damages. The biomechanical opinion is not proof by itself - the adjuster should weigh the police report, skid marks, and Maria's own statement before locking a percentage.
Step 3 - Credit the tortfeasor's payment. UIM responds to the shortfall after the tortfeasor's limits are paid: $120,000 − $25,000 = $95,000.
Step 4 - Apply the policy limit. The per-person UIM limit is $100,000. Because $95,000 is below the limit, no cap issue arises and the exposure is $95,000 - not $100,000.
The adjuster should reserve at the upper end of a range (e.g., $95,000–$110,000 using the higher damages figure) until the comparative fault and general damages components are firmed up.
2. The tortfeasor's carrier has tendered its limit but the settlement release has not been signed. May the adjuster pay UIM now? What conditions should be satisfied first?
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No - not yet. UIM is excess coverage; it is not triggered until the tortfeasor's coverage is actually exhausted and the insured's claim against that tortfeasor is resolved.
Conditions the adjuster should satisfy:
- Certified limits - obtain a written confirmation of the 25/50/20 limits from the tortfeasor's carrier, not the claimant's characterization of them.
- Proof of exhaustion - obtain the executed release/settlement documents and confirmation of payment. A tender letter alone is not exhaustion.
- Protect subrogation/consent-to-settle rights - most Connecticut UIM provisions bar the insured from prejudicing the carrier's subrogation rights without consent. The adjuster should issue written consent (with a reservation of the subrogation interest) before the release is signed, or the carrier may lose its recovery rights against the tortfeasor.
- Confirm the underinsured status - a 25/50/20 policy is not "uninsured"; it is underinsured only because damages exceed the limit. Document that finding.
- Verify coverage on the Maria policy - declarations page, that UIM limits were not validly reduced below liability limits in writing, and that the vehicle involved is a scheduled/covered auto.
Advancing UIM before the tortfeasor settlement is finalized risks paying twice and waiving subrogation - a recovery the file may need if the comparative fault allocation later shifts.
3. Maria's counsel argues comparative fault cannot reduce a UIM payment because UIM is a contract benefit, not a tort claim. How should the adjuster respond, and what does that mean for negotiation?
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The argument fails on the structure of UIM coverage. UIM pays the amount the insured is legally entitled to recover as damages from the owner or operator of the underinsured vehicle. Those damages are defined by tort law, so the same comparative fault rules that would apply in Maria's suit against the other driver apply to the UIM claim. Connecticut's modified comparative negligence scheme therefore scales the UIM recovery exactly as it scales the tort recovery.
Practical consequences:
- The 20% allocation is worth $25,000 of recovery ($150,000 × 0.20). It, not the policy limits, is the real negotiating battleground.
- The adjuster should build the fault position on admissible evidence (police report narrative, physical damage pattern to the rear bumper versus front, the insured's recorded statement, any independent witness). A bare biomechanical report is weak leverage.
- If fault is genuinely contestable, a compromise in the 10%–15% range is often the rational settlement, with the file documenting why.
- The adjuster should state in writing that any payment is a compromise of a disputed claim, and preserve subrogation against the tortfeasor for sums paid.
Do not concede the "contract, not tort" framing even informally - it would anchor the negotiation at $100,000 and is legally wrong.