Pursuing an Injury Claim After an Insurer's Denial

Attorney Answer

Yes, you have a claim — but it is against the driver who hit you, not against Erie, and that distinction changes everything about what you should do next.

Start with the claim that matters. A negligence action against the at-fault driver is governed by W. Va. Code § 55-2-12, which requires that a personal action for damages for personal injuries be brought "within two years next after the right to bring the same shall have accrued." That clock started on the day of the collision. Erie's denial does not stop it, extend it, or pause it. The facts you describe — a driver descending a hill towing a trailer, no braking marks on the road, marks only where your vehicle was pushed backward, and his own statement that he never saw you until he was on top of you — are the kind of evidence a negligence claim is built on. The injuries you and your sister describe, including a documented periorbital and frontal subcutaneous hematoma and a lump, scar and numbness still present, are real damages.

Now the insurer. Because you are claiming against the other driver's policy rather than your own, you are a third-party claimant, and W. Va. Code § 33-11-4a controls what you can do about bad claim handling. It provides that a third-party claimant "may not bring a private cause of action or any other action against any person for an unfair claims settlement practice," and that a third-party claimant's sole remedy for an unfair claims settlement practice is the filing of an administrative complaint with the Commissioner. The conduct that counts is defined in W. Va. Code § 33-11-4(9) and includes "misrepresenting pertinent facts or insurance policy provisions" and "failing to acknowledge and act reasonably promptly upon communications." That complaint must be filed "as soon as practicable but in no event later than one year following the actual or implied discovery of the alleged unfair claims settlement practice."

So: you cannot sue Erie for denying you. You can complain about them to the Insurance Commissioner, and you can sue the driver.

What you can do

1. Get the completed police report as soon as the officer finishes it and send it to Erie in writing, referencing the denial letter and using the dispute process the letter describes. 2. Send Erie the photographs — especially the one showing his truck still on top of your vehicle before he backed it off — and the fire department's observation that there were no braking marks. 3. Get follow-up medical care now for the lump, scar, numbness and the pins-and-needles sensation. Untreated symptoms are read by insurers as symptoms that resolved, and an unexamined injury is far harder to value. 4. Write down each person's ongoing symptoms, missed work, and out-of-pocket costs, and keep every bill. 5. Talk to an injury lawyer before the two-year period gets close. Most take these cases on contingency, and a lawyer can file suit against the driver whether or not Erie ever changes its position. 6. If you believe Erie's handling was unreasonable — including the failure to acknowledge the claim until you called five days later — file an administrative complaint with the West Virginia Insurance Commissioner.

⏱ Time limits apply. W. Va. Code § 55-2-12 sets a two-year period for personal injury actions, and W. Va. Code § 33-11-4a requires a third-party unfair-claims complaint to the Commissioner no later than one year after discovery of the practice. Which dates apply to each of you depends on your specific facts.