Virginia Uninsured and Underinsured Motorist Claims

What do UM and UIM coverage pay in Virginia?

In Virginia, every auto liability policy must include uninsured motorist (UM) coverage that pays what you are legally entitled to recover from an uninsured driver, and underinsured motorist (UIM) coverage with limits equal to the UM limits (Va. Code § 38.2-2206(A)). Your UM limits equal your liability limits unless a named insured chose lower limits, and that choice binds everyone on the policy.

Virginia defines "uninsured" broadly. A vehicle counts as uninsured when there is no liability insurance meeting the state minimums, when the other driver's insurer denies coverage for any reason, when the owner or operator is unknown, or when the owner or operator is immune from liability, such as some government drivers (§ 38.2-2206(B)). A vehicle is "underinsured" to the extent the liability coverage available for your injuries is less than your damages, up to your UIM limits.

Coverage reaches further than many people expect. The insured group includes the named insured and the spouse and relatives living in the same household, "while in a motor vehicle or otherwise," plus anyone using the insured vehicle with permission and guests in it (§ 38.2-2206(B)). That is how UM/UIM protects family members who are hurt as pedestrians or cyclists.

What changed in Virginia underinsured motorist coverage on July 1, 2023?

For new and renewal policies effective on or after July 1, 2023, Virginia UIM coverage must be paid "without any credit for the bodily injury and property damage coverage available for payment" from the at-fault driver's insurer (Va. Code § 38.2-2206(A); 2022 Va. Acts ch. 308, enactment cl. 2). Before the change, Virginia UIM paid only the difference between your UIM limit and the other driver's liability limit.

A simple example shows the difference. Suppose the at-fault driver carries $50,000 in liability coverage, you carry $100,000 in UIM coverage, and your damages are $300,000. Under the old offset rule, your UIM carrier would owe only $50,000, for $100,000 in total. Under the current rule, it can owe its full $100,000 on top of the $50,000, for $150,000 in total.

There is one exception to watch for. Any one named insured may sign a written election to have UIM payments reduced by the at-fault driver's coverage, and that election binds everyone on the policy (§ 38.2-2206(A)). Insurers must enclose a boldface notice explaining that choice with policies issued, delivered, or renewed after July 1, 2025 (Va. Code § 38.2-2202(C)). When we take a UIM case, we request the complete policy file, including any election forms, to confirm which rule applies.

Can you stack UM/UIM coverage in Virginia?

Often, yes. Virginia lets an injured person collect under more than one policy in a set order of priority: first the policy on the vehicle you were in, then a policy on which you are a named insured, then a policy on which you are an insured but not the named insured, with insurers at the same level sharing in proportion to their limits (§ 38.2-2206(B)(2)). A passenger in a friend's car, for example, may collect from the friend's UIM coverage and then from his or her own.

Stacking within a single policy that covers several vehicles turns on the policy's words. The Supreme Court of Virginia has long held that stacking of UM/UIM coverage is permitted unless clear and unambiguous language on the face of the policy prevents it, and any ambiguity is construed against the insurer (Virginia Farm Bureau Mutual Insurance Co. v. Williams, 278 Va. 75 (2009)). In Williams, an injured minor was allowed to stack the coverage for all three vehicles on her father's policy, for $850,000 instead of the $300,000 the insurer offered, because the policy's limits language was ambiguous.

Insurers draft anti-stacking clauses carefully, and many are enforceable. That is why we read every declarations page and endorsement in the household rather than accepting the adjuster's summary.

How do hit-and-run John Doe claims work in Virginia?

When the driver who caused your injuries is unknown, Virginia lets you sue the driver as "John Doe," serve the papers on the clerk of the court, and serve your UM insurer as though it were a party; the insurer may then defend in John Doe's name (§ 38.2-2206(E)). The case proceeds much like any other injury case, and a judgment is paid by your UM coverage.

• No-contact crashes. If the unknown vehicle never touched your vehicle, or never touched you if you were on foot, the accident must be reported promptly to your insurer or to a law enforcement officer where it happened, or as soon as reasonably practicable (§ 38.2-2206(D)). Report every hit-and-run, even when you are unsure the coverage applies.
• If the driver is found later. Filing the John Doe action tolls the statute of limitations against the real driver until his or her identity becomes known, but no action against that driver may be brought more than three years after the John Doe case was filed (§ 38.2-2206(G)).
• Proving a driver was uninsured. A certification from the DMV Commissioner that records show no insurance creates a rebuttable presumption that the vehicle was uninsured (§ 38.2-2206(C)).

How do you serve the UM carrier in Virginia?

If you sue an uninsured or underinsured driver and intend to rely on your UM/UIM coverage, you must serve a copy of the process on your insurer in the manner prescribed by law, as though the insurer were a defendant (§ 38.2-2206(F)). The statute specifically excludes Virginia's general rule that process actually received in time is good even if not formally served (Va. Code § 8.01-288), so an emailed copy or a letter to the adjuster is not enough. Formal service on each UM/UIM carrier, within the time allowed, protects the claim.

Once served, the insurer may file pleadings in the driver's name or its own. Your policy cannot require arbitration, and nothing more can be required of you than establishing the other driver's legal liability (§ 38.2-2206(H)).

Settling with the at-fault driver without losing your UIM claim

Virginia gives injured people a structured way to take the at-fault driver's policy limits and keep going. You may settle with the liability insurer and its insured for the available limits and sign a release that, if it states it is made under the statute, releases only that insurer and driver; your UIM claim is preserved (§ 38.2-2206(K)). The settlement must include a statutory notice to the released driver, who agrees to cooperate with the UIM insurer in the defense (§ 38.2-2206(L)).

The UIM case then continues against the released driver, with a copy of the complaint served on every UIM insurer, and any verdict is entered against "Released Defendant" and enforceable against the UIM insurer up to its limits (§ 38.2-2206(M)). When the liability settlement involves a death or a person under a disability, court approval does not prejudice the UIM claim, and in a death case the money is held in trust or paid into court until the compromise is approved (§ 38.2-2206(N)).

Your own insurer will defend like the other driver

Because UM/UIM pays what you are legally entitled to recover from the at-fault driver, the claim is litigated much like a case against that driver. Your insurer's lawyers will contest fault, causation, and damages, and Virginia's contributory negligence rule still applies; see our Virginia car accident claims page. We prepare a UIM case for trial from the start.

The deadline to sue the at-fault driver, or John Doe, is generally two years from the crash (Va. Code § 8.01-243(A)). If a county, city, or town vehicle was involved, notice under Va. Code § 15.2-209 is due within six months, even if you also expect your UM coverage to pay because the government driver is immune.

Checklist for a Virginia UM/UIM claim

• Declarations pages for every auto policy in your household, and for the vehicle you were in
• Policy renewal dates, to confirm whether the post-July 1, 2023 rule applies
• Any UIM election or coverage-rejection forms a named insured signed
• The crash report number and the date you reported a hit-and-run to police and your insurer
• The other driver's insurer, policy number, and any denial letter
• All letters from your own insurer; avoid recorded statements until we talk

We handle UM/UIM claims for people across Arlington, Alexandria, Fairfax County, Loudoun County, and Prince William County. Compare Virginia with D.C. and Maryland on our uninsured and underinsured motorist claims page, or see the Virginia personal injury lawyers overview.

Related reading

• July 1, 2023: the end of Virginia's UIM offset
• Virginia's new UM/UIM law: an FAQ on policies and renewals
• The 2022 law that changed Virginia UM/UIM
• How the old Virginia offset rule shrank UIM recoveries
• Hit-and-run in Virginia: John Doe claims and your UM coverage
• DMV Injury Guide: using your own insurance, including PIP, MedPay, and UM/UIM
• DMV Injury Guide: dealing with insurance adjusters

Responsible attorneys: Ryan C. Posey and Jacob M. Lebowitz. Posey Lebowitz PLLC, 3221 M Street NW, Washington, DC 20007.