AMI 2301 Issues—Claim for Uninsured Motorist Coverage—Burden of Proof

This instruction should be used when there is no liability insurance coverage on the driver alleged to be at fault or the vehicle operated by that driver at all, or in a hit-and-run situation where the driver alleged to be at fault is unidentified. If there is liability insurance coverage available, but the limits are less than the damages claimed by the plaintiff, use AMI 2303.

When using this instruction, also use any instructions that may be necessary to address the issue of the uninsured motorist's fault in causing plaintiff's damages, such as AMI 302, AMI 501, any applicable Specific Factor instructions from AMI Chapter 6, and any applicable Rules of the Road instructions from AMI Chapter 9.

Only use the hit-and-run alternatives in the second and fifth elements if the policy at issue provides uninsured motorist coverage for hit-and-run accidents.

Modify or supplement this instruction if additional issues must be resolved to establish coverage. For example, when the uninsured motorist is a hit-and-run driver and there is hit-and-run coverage, it may be necessary to instruct the jury that to hold the insurer liable they must find actual physical contact between the hit-and-run driver's vehicle and the vehicle in which the plaintiff was riding (or the person of the plaintiff).

This instruction is intended to be used in cases in which the uninsured motorist is not a party. If the uninsured motorist is a party, modify this instruction as appropriate.

Do not use the bracketed fourth element if the existence of an insurance policy providing uninsured motorist benefits to plaintiff as of the date of the accident is not in dispute.

Do not use the final bracketed paragraph when affirmative defenses such as negligence of the plaintiff are in issue, when there is also a claim against another joint tortfeasor defendant or a claim that a non-party is at fault under Ark. Code Ann. § 16-55-202, or when the case is submitted on interrogatories.

In the rare case involving coverage limits below the statutory minimum on the driver or the vehicle, modify the instruction accordingly.

See Ark. Code Ann. §§ 23-89-401 et seq., which applies, with the applicable insurance policy, to all uninsured motorist claims.

This instruction is intended to clarify for the jury the basic framework in uninsured motorist cases by identifying the elements of (1) damages, (2) fault of the uninsured motorist, (3) the existence of a policy containing uninsured motorist coverage, and (4) the fact that the motorist and vehicle were uninsured.

Although an uninsured motorist is one who either has no liability insurance or carries less than the amount required by law and is driving a vehicle covered either by no insurance or by less than the amount required by law, this instruction applies only to the usual situation in which there is a complete absence of insurance (or a hit-and-run driver), since cases involving coverage limits below the statutory minimum are very rare.

The case contemplated by this instruction is against the uninsured motorist coverage carrier only. Combination of the insured's claims against both the uninsured motorist and the uninsured motorist coverage carrier in the same action raises issues that are beyond the scope of this instruction. See the Comment to AMI 2303 for discussion of those issues in the context of underinsured motorist coverage, where they are more likely to arise.

The plaintiff must show that both the tortfeasor and the vehicle driven by the tortfeasor are uninsured. Home Ins. Co. v. Harwell, 263 Ark. 884, 568 S.W.2d 17 (1978) (vehicle); Southern Farm Bureau Cas. Ins. Co. v. Gottsponer, 245 Ark. 735, 434 S.W.2d 280 (1968) (driver); Southwestern Underwriters Ins. Co. v. Miller, 254 Ark. 387, 493 S.W.2d 432 (1973) (vehicle); see also Throesch v. United States Fidelity and Guaranty Co., 255 F.3d 551 (8th Cir. 2001) (vehicle). Under Ark. Code Ann. §§ 23-89-401 and 23-89-402, a vehicle may be uninsured where the insurer is unable to pay due to insolvency.

Some claimants on uninsured motorist policies in the past have sought to invoke Ark. Code Ann. § 27-19-503, as amended by Ark. Acts 2003, Act No. 1043, which requires a motorist to file a certificate within ninety days of an accident proving that the motorist and the vehicle the motorist was operating were insured up to the statutory minimum and provides that, if the motorist fails to do so, there shall be a presumption that both the motorist and the vehicle were uninsured. See, e.g., State Farm Mut. Auto. Ins. Co. v. Henderson, 356 Ark. 335, 343–44, 150 S.W.3d 276, 280–281 (2004) (declining to reach argument); Throesch, 255 F.3d at 554–55 (rejecting argument under statute before the 2003 amendment, which provided presumption as to motorist only, not to vehicle). AMI 2302 was based on the statutory presumption. The Arkansas Supreme Court, however, explicitly rejected this theory in Kelley v. USAA Casualty Ins. Co., 371 Ark. 344, 348, 266 S.W.3d 734, 738 (2007) (concluding that “the section is not now and never was a means to declare an unidentified and unknown driver and vehicle as uninsured for DF & A purpose or for any purpose”), although it did not mention AMI 2302. In light of Kelley, the Committee has deleted AMI 2302.

A policy requirement that the insured be “legally entitled to recover” from an uninsured motorist requires only a showing of fault by the uninsured motorist; therefore, the fact that no judgment can be rendered against the estate of an uninsured motorist due to failure to properly file a probate claim against the estate does not bar the uninsured motorist claim. Hettel v. Rye, 251 Ark. 868, 475 S.W.2d 536 (1972).

A motorist who carries at least the minimum amount of liability insurance required by law does not become an uninsured motorist if the policy limits become exhausted. Payne v. Farm Bureau Mut. Ins. Co. of Arkansas, Inc., 298 Ark. 540, 768 S.W.2d 543 (1989).

The Arkansas Supreme Court has upheld uninsured motorist policy provisions that require proof of actual physical contact between the insured's vehicle (or person) and a hit-and-run vehicle. Kelley, supra; State Farm Mut. Auto. Ins. Co., supra; Ward v. Consolidated Underwriters, 259 Ark. 696, 535 S.W.2d 830 (1976). The uninsured motorist statutes do not require uninsured motorist policies to provide coverage for hit-and-run accidents where it cannot be proved that the unidentified driver and vehicle are uninsured. Therefore, a restriction on that coverage such as the requirement of contact between the vehicles is valid. Hit-and-run coverage provisions providing uninsured motorist coverage for injuries “arising out of” physical contact with an uninsured vehicle do not limit coverage to injuries proximately caused by such contact, but include injuries causally connected with the contact. State Farm Mut. Auto. Ins. Co. v. LaSage, 262 Ark. 631, 559 S.W.2d 702 (1978) (injuries sustained when insured ran into a ditch while pursuing hit-and-run driver were not excluded by “arising out of” requirement).

The Court has also upheld “other-insurance” or “excess-escape” clauses which obligate a secondary insurer to pay benefits only to the extent that the secondary insurer's policy limits exceed the primary coverage. Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998).

The statute governing uninsured motorist coverage, which becomes part of the policies affected by it, requires that uninsured motorist coverage issued to a corporation also cover the corporation's employee who is “using” the insured vehicle at the time the accident occurs. First Security Bank of Searcy v. Doe, 297 Ark. 254, 760 S.W.2d 863 (1988). Like liability insurance, uninsured motorist coverage follows the vehicle. Southern Farm Bureau Casualty Ins. Co. v. Shelter Mutual Ins. Co., 2016 Ark. App. 563, 506 S.W.3d 915 (2016) (policy insuring the vehicle provided primary uninsured motorist coverage, rather than policy insuring the driver).

For purposes of an uninsured/underinsured motorist coverage provision defining the insured as a person “occupying” the vehicle, a pedestrian struck by the vehicle is not, by virtue of that brief contact with the vehicle, “occupying” it. Tunnel v. Progressive Northern Ins. Co., 80 Ark.App. 215, 95 S.W.3d 1 (2003).

A named-driver exclusion in a policy generally does not violate public policy and will be enforced in underinsured motorist claims. Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 166 S.W.3d 556 (2004). By contrast, the Court of Appeals has held that a government-owned vehicle exclusion was contrary to the public policy underlying the uninsured motorist statute and thus was void. Cross v. State Farm Mut. Auto. Ins. Co., 2018 Ark. App. 98, 541 S.W.3d 495 (2018).