Does Deadline for Filing Underinsured Motorist Suit Run From Date of Accident, or Date Underinsurance Was Determined?

Where Underinsurance Not Established Until Prior Lawsuit Resolved

Thomas Barbee v. Allstate Insurance Company, Case no. 2010-1091

11th District Court of Appeals (Trumbull County)

ISSUE: When a provision in an auto insurance policy requires an insured person to file suit to recover underinsured motorist coverage within three years after an accident that causes injury, is that provision enforceable against a policyholder when the existence of an underinsured driver in the case was not established until a court deciding liability claims against multiple defendants allocated liability for the policyholders' injuries among those defendants 32 months after the accident?

BACKGROUND: The case involves a multi-car accident that occurred in October 2002 that caused injuries to multiple members of the Barbee family of Lorain County while they were traveling in Wisconsin. In the accident, two vehicles occupied by the Barbee family members were struck by two other vehicles that had collided with each other on the opposite side of a freeway and then swerved across the median and into traffic going the opposite direction. The drivers of the vehicles that crossed the median were Danielle Skatrud, who was killed in the crash, and Vaughn Larson, who was driving in his capacity as a federal government employee at the time of the accident.