Insurance Priority in One-Car Wreck

I have a case with a passenger injured in a one-car wreck. The driver was not the owner of the car. I obviously can collect against the owner’s insurance, but can I collect against the operator also, or is the next layer of insurance the passenger's UM?

Answer:
You have several options in the case in which your client is a passenger injured in a one-vehicle wreck. You really don’t have to worry about which coverage is primary and which is excess under Mustain v. United States Fidelity and Guaranty Co., et al., 1996 OK 98, 925 P.2d 533: ¶7 Pursuant to 36 O.S. 1991 § 3636, UM insurance is first-party coverage5 that follows the person.6 The UM insurer and its insured occupy a statutory relationship imbued with a duty of good faith and fair dealing.7 The injured UM insured is entitled to swift payment from the UM insurer and, in the absence of a reasonable dispute as to the coverage or the amount of damages, the UM insurer may not withhold payment to its insured on the sole basis that the liability insurance has not been exhausted8. Accordingly, we conclude that 36 O.S. 1991 § 3636 imposes a responsibility upon the UM insurer to protect its insured by good faith and [925 P.2d 536] fair dealing from and after the time of injury and the insurer may not withhold payment to its injured insured on the sole basis that some other insurance has not been exhausted. We therefore hold that as between the insurer and its insured UM insurance is primary coverage.

Your client’s opportunities to recover in your fact situation are: (1) the liability coverage on the car being occupied; (2) the responsible driver’s liability; (3) the UM coverage on the vehicle being occupied, (4) the UM on your client’s own UM coverage and (5) depending on the precise policy language of the driver’s UM policy, your client may also be entitled to the non-owner driver’s UM coverage. Russell v. American States, 813 F.2d 306 (10th Cir. 1987) holds that you get that result when the non-owner driver’s UM policy has a provision including in the definition of “insured motor vehicle” a vehicle being driven by the named insured. Your client is then covered under that policy as a person occupying an insured vehicle with the permission of the insured. About half of the policies contain that provision.