What if the Driver Who Hit Me Does Not Have Enough Insurance in Missouri?

You look to your own underinsured motorist (UIM) coverage, if your policy has it. Missouri does not require UIM coverage, so the policy’s wording decides whether the other driver counts as underinsured, how much it pays and whether coverages stack. UIM limits below twice the state minimums must be treated as excess coverage (RSMo 379.204).

Two Missouri drivers can buy UIM coverage with the same limit, suffer the same injury and collect very different amounts, because the answer is written in paragraphs most people never read.

01Does Missouri Require Anyone to Carry Enough Insurance?

Not enough for a serious injury. A Missouri liability policy must cover at least $25,000 for bodily injury to one person, $50,000 for bodily injury to two or more people in one crash, and $25,000 for property damage (RSMo 303.190.2(2)). Everyone hurt in the crash shares the per-crash limit. In Ritchie v. Allied Property & Casualty Insurance Co., 307 S.W.3d 132 (Mo. banc 2009), parents holding a $1.8 million wrongful death judgment collected $60,000 from two drivers’ policies, because those limits were split among several injured people.

Your own policy must include uninsured motorist (UM) coverage (RSMo 379.203), and our article at /blog/what-if-the-driver-who-hit-me-has-no-insurance-in-missouri/ covers that claim. Underinsured coverage is different. The Missouri Supreme Court held in Rodriguez v. General Accident Insurance Co. of America, 808 S.W.2d 379 (Mo. banc 1991), that Missouri has no statutory requirement for UIM coverage, so “the existence of the coverage and its ability to be stacked are determined by the contract.” An unambiguous UIM provision is enforced as written. An ambiguous one is construed against the insurer (Seeck v. Geico General Insurance Co., 212 S.W.3d 129, Mo. banc 2007).

One statute does reach UIM coverage. RSMo 379.204 provides that UIM coverage “with limits of liability less than two times the limits for bodily injury or death” in RSMo 303.020 “shall be construed to provide coverage in excess of the liability coverage” of the underinsured vehicle. The 303.020 limits are $25,000 per person and $50,000 per crash, so the statute covers UIM limits below $50,000 per person and $100,000 per crash.

How Illinois treats it

For Metro East readers, Illinois, unlike Missouri, requires UIM coverage in many policies. An Illinois policy whose UM coverage exceeds the state minimum must include UIM coverage in the same amount, and the UIM insurer’s limit is its limit “less those amounts actually recovered” from the at-fault driver’s insurance (215 ILCS 5/143a-2(4)).

02Does UIM Coverage Fill the Gap or Add on Top?

The policy language decides it. Gap-filling coverage, often called set-off or difference-in-limits coverage, subtracts what the at-fault driver’s insurer paid from your UIM limit. Excess coverage stacks your UIM limit on top of what the driver’s insurer paid, up to your actual damages.

Here is a hypothetical with round numbers, for arithmetic only. Your damages are $300,000. The at-fault driver’s insurer pays its $25,000 limit. Your UIM limit is $100,000.

• Under gap-filling wording, your insurer pays $100,000 minus $25,000, or $75,000. Your total from both insurers is $100,000.
• Under excess wording, your insurer subtracts the $25,000 from your damages, not from its limit. You still have $275,000 in unpaid damages, which exceeds the limit, so it pays the full $100,000. Your total is $125,000.

The Missouri Supreme Court has enforced both. In Jones v. Mid-Century Insurance Co., 287 S.W.3d 687 (Mo. banc 2009), the policy said the most it would pay was the lesser of the insured’s unpaid damages or “the limits of liability of this coverage,” and elsewhere that it would pay “up to the limits” on the declarations page. A clause reducing coverage by the driver’s payment conflicted with those promises, because an underinsured driver always pays something and the stated limit could never be reached. The Court applied the reduction to damages and held each insured was owed the full $100,000. Ritchie and Manner v. Schiermeier, 393 S.W.3d 58 (Mo. banc 2013), followed Jones.

Owners Insurance Co. v. Craig, 514 S.W.3d 614 (Mo. banc 2017), went the other way. That policy said its declarations limit was “for reference purposes only” and that it would never have a duty to pay the entire amount. With no promise to pay the full limit, there was no conflict, and the Court allowed the insurer to deduct the $50,000 the other driver’s insurer paid from the $250,000 limit.

The declarations page tells you the number. The limit-of-liability paragraph tells you whether you can ever collect it.

03When Is the Other Driver Not “Underinsured” Under Your Policy?

Many policies define an underinsured motor vehicle as one whose liability limit is less than your UIM limit. Under that definition, a driver with $50,000 in coverage is not underinsured if your UIM limit is also $50,000, however badly you are hurt. The Court enforced exactly that in Rodriguez.

Swadley v. Shelter Mutual Insurance Co., 513 S.W.3d 355 (Mo. banc 2017), shows how far the rule reaches. A family received $823,874.80 for a wrongful death from a trucking company whose $1,000,000 policy was shared with another injured person, and Shelter stipulated their damages were at least $100,000 more. The Court still held their $100,000 UIM coverage did not apply, because the definition compared policy limits, not the money actually received, and the truck’s limits were higher.

Two things can change the result. An other-insurance clause promising that the coverage is “excess over any other insurance” can create an ambiguity that defeats the definition, as it did in Seeck, where a passenger who received $50,000 from the at-fault driver’s insurer was held entitled to her own $50,000 UIM coverage. And when coverages stack, the stacked total is what gets compared with the at-fault driver’s limits (Manner).

04Can Underinsured Motorist Coverage Be Stacked?

Only if the policy allows it, or is ambiguous about it. No statute requires UIM stacking. In Rodriguez the Court enforced an anti-stacking clause that limited recovery to the stated limit “regardless of the number of” vehicles or premiums, and refused to add the UIM coverage on two cars together.

The exception comes from other-insurance clauses. In Ritchie, the policy said coverage for a vehicle “you do not own shall be excess over any other collectible underinsured motorist coverage.” The daughter was killed riding in someone else’s car, so the Court held the three UIM coverages on the family’s three vehicles could be stacked to $300,000. Manner reached the same result across four separate policies for a motorcyclist, and held the insurers had not proved their owned-vehicle exclusion applied, since the uncle selling him the motorcycle still held title.

Clear exclusions are enforced. In Floyd-Tunnell v. Shelter Mutual Insurance Co., 439 S.W.3d 215 (Mo. banc 2014), a UM case, an owned-vehicle partial exclusion cut two policies to $25,000 each, and the Court said the declarations “do not grant any coverage.”

05Whose Policy Covers You?

Start with every policy in your household. The Shelter policies in Seaton v. Shelter Mutual Insurance Co., 574 S.W.3d 245 (Mo. banc 2019), defined the insured to include you and any relative living in your household, without requiring that the person be in a car. That definition also excluded any relative who owned a vehicle, and because the daughter was listed on a title, the Court held two of her mother’s policies did not cover her.

• Passengers can usually look to the UIM coverage on their own household policies, as Ms. Seeck did, and sometimes to the coverage on the car they were in.
• Pedestrians and cyclists hit by a car can be covered when the policy’s definition of an insured does not require them to be in a vehicle, as the Seaton definition did not.
• Rideshare trips depend on whether the driver’s app was on and which insurer’s tier applies. Our rideshare page at /car-accidents/rideshare-accidents/ explains those tiers.
• If you were in an employer’s vehicle, the employer’s commercial policy may carry UIM coverage of its own, workers’ compensation may apply, and your personal policy may still respond. The truck driver in Weaver v. State Farm Mutual Automobile Insurance Co., 936 S.W.2d 818 (Mo. banc 1997), pursued both workers’ compensation and the uninsured motorist coverage on his personal policy.

06What Must You Do Before Settling With the At-Fault Driver?

The usual sequence is that the at-fault driver’s insurer offers its limits and you then claim UIM. Four things decide whether that order of events costs you the claim.

• Give your own insurer written notice promptly. Under Weaver, an insurer that wants to deny a claim for late notice bears the burden of proving it was actually prejudiced, and a conclusory affidavit was not enough.
• Ask your insurer in writing for consent before accepting the driver’s limits. Many UIM policies require it, to protect the insurer’s right to pursue the driver. The Court of Appeals has held that an insurer cannot escape liability for a settlement made without consent unless it was prejudiced, and found no prejudice where the insured took the full limits (Tegtmeyer v. Snellen, 791 S.W.2d 737, Mo. App. 1990; Mazzocchio v. Pohlman, 861 S.W.2d 208, Mo. App. 1993).
• Check whether the policy requires exhaustion. The Allied policy in Ritchie paid only after the driver’s limits “have been exhausted by payment of judgments or settlements.” Settling for less than the limits under wording like that is an argument you do not want to give the insurer.
• Read the release before you sign it. The release in Seeck required the injured woman to reimburse the driver for anything an insurer later recovered from him, and Geico argued that made her UIM claim a financial wash. She had written in a reservation of her UIM rights, and the Court held Geico was not a beneficiary of the release.

07How Long Do You Have to Bring a UIM Claim?

A UIM claim is a contract claim against your insurer. In Messner v. American Union Insurance Co., 119 S.W.3d 642 (Mo. App. 2003), the Court of Appeals applied the ten-year period for an action on a writing for the payment of money (RSMo 516.110(1)) to an underinsured motorist claim for injuries, following the Missouri Supreme Court’s reasoning in Oates v. Safeco Insurance Co. of America, 583 S.W.2d 713 (Mo. banc 1979). He sued more than five years after the crash and had never sued the driver, but the five-year tort period in RSMo 516.120 was only a procedural bar. The court counted the ten years from the crash.

Death claims are different. A wrongful death action must be filed within three years (RSMo 537.100), and that period is treated as substantive. In Baumgartel v. American Family Mutual Insurance Co., 29 S.W.3d 416 (Mo. App. 2000), a widow who settled with the at-fault driver without ever filing a wrongful death action could not recover UM or UIM benefits, because she could not show she was legally entitled to recover from the driver.

A policy clause shortening the time to sue is void under RSMo 431.030, which voids any contract term that “directly or indirectly” limits the time to bring suit. Notice and proof-of-claim conditions are separate, and they usually run far shorter.

08What if Your Insurer Refuses to Pay?

Missouri’s vexatious refusal statutes add a penalty. When an insurer “has refused to pay such loss without reasonable cause or excuse,” the court or jury may award, on top of the loss and interest, damages of up to 20 percent of the first $1,500 of the loss and 10 percent of the loss above $1,500, plus a reasonable attorney’s fee (RSMo 375.420). The statute excludes automobile liability insurance. UIM coverage pays you rather than covering your liability, and the insureds in Messner and Swadley joined vexatious refusal counts to their UIM claims.

RSMo 375.296 allows the same damages and fee when the insurer has failed or refused to pay for 30 days after “due demand” made before suit, and the refusal was “vexatious and without reasonable cause.” An insurer with a genuine, arguable reading of its policy is in a different position from one that sits on a claim its own wording supports.

09Where Else Can Money Come From?

When UIM coverage is missing or thin, look past the two auto policies.

• Medical payments coverage, if your policy has it, pays medical bills regardless of fault, up to its limit.
• Health insurance, Medicare or MO HealthNet pay treatment in the meantime, and each may have a right to be repaid from your recovery. Our article at /blog/how-much-is-a-car-accident-case-worth-in-missouri/ explains those claims.
• The driver’s employer is responsible for a crash its employee caused within the scope of the job, and its commercial policy is often far larger than a personal one.
• The vehicle’s owner may be liable for negligent entrustment if the owner lent it to someone the owner knew or should have known was unfit to drive.
• A bar that served a visibly intoxicated driver, or served a minor, can be sued when that is proven by clear and convincing evidence (RSMo 537.053). Our article at /blog/can-i-sue-the-bar-that-served-a-drunk-driver-in-missouri/ covers those claims.
• The driver personally. A judgment above the policy limits can be collected from the driver’s assets and wages, but many drivers who carry minimum coverage have little to collect.

10What Should You Do First?

Before you accept the at-fault driver’s limits or sign anything, gather the full policy for every vehicle in your household, not only the declarations pages, and the policy on any car you were riding in. Ask each insurer for a certified copy, and give your own insurer written notice that you may make a UIM claim.

Our car accident page at /car-accidents/ covers the rest of a Missouri crash claim.

Call The Injury Counsel at (314) 727-7220 for a free, confidential consultation. We will read the limit-of-liability, other-insurance, definition and consent clauses in each policy and tell you which coverage applies before the release is signed.