Does UM Apply Because Insured Blew the SOL Against the Tortfeasor?

Client has wreck 2+ years ago, but does not engage attorney or file suit. Claim is less than tortfeasor’s (then) available policy limits. Does this make the tortfeasor “uninsured” such that the UM becomes available?


Answer:
No. See: Gates v. Eller, 2001 OK 38, 22 P.3d 1215:

"¶15 Plaintiffs misconstrueUptegraftandBurchwhen they offer them as support for their argument that the tortfeasor's insured motor vehicle becomes uninsuredwhen the insured fails to commence an action against the tortfeasor within the statute of limitation.UptegraftandBurchstand for the proposition that an insured who passively permits the tort statute of limitation to expire does not discharge the uninsured motorist insurer from liability. They do not support plaintiffs' proposition that the same passive act on the part of the insured creates an uninsured status where an insured status previously existed. Stated otherwise, an insured motor vehicle does not become an uninsured motor vehicle simply because the insured allows the statute of limitation to expire causing the torfeasor's liability insurance to become unavailable."