When a plaintiff seeks compensation from its uninsured motorist carrier, the party is not waiving its right to seek compensation from a defendant.

This action arises out of a motor vehicle collision in which the plaintiff was rear-ended by the defendant's vehicle and filed a subsequent negligence claim. The defendant claims that the cause of the accident was by an unidentified "phantom" third-party who rear-ended the defendant and left the scene. According to the police report, both parties reported a "phantom" vehicle as causing the accident. The plaintiff later denied existence of the "phantom" vehicle. The plaintiff recovered $30,000 in uninsured motorist ("UM") benefits from her insurance carrier and subsequently commenced this action. The trial court dismissed the Action based, in part, on the doctrine of waiver. The appellate court held that it was error to find waiver because the fact that the plaintiff sought compensation from her UM carrier did not imply that she intended to relinquish her right to seek compensation from the defendant. The decision was reversed and remanded to the lower court for further findings.

Case Law Alert - 1st Qtr 2010