What happens if the driver’s insurance isn’t enough to cover a wrongful death claim?
What happens if the driver’s insurance isn’t enough to cover a wrongful death claim? - North Carolina
Short Answer
In North Carolina, the at-fault driver’s auto liability policy only pays up to its policy limits, even if the wrongful death damages are higher. If the liability limits are not enough, the next common source is underinsured motorist (UIM) coverage available through the deceased person’s household auto policies (and sometimes other policies). If there is still a gap, the personal representative may consider other responsible parties and other insurance policies, or pursue the at-fault driver personally—though collecting beyond insurance can be difficult.
Understanding the Problem
If your child was hit by a car and died at the scene in North Carolina, you may be asking whether you can still pursue a wrongful death claim when the driver’s insurance policy limits are too low. The key issue is what options the personal representative has to seek additional payment after the liability insurer tenders its limits.
Apply the Law
North Carolina wrongful death claims are brought by the deceased person’s personal representative (not automatically by a parent), and the claim is typically pursued in civil court against the at-fault driver and any other legally responsible parties. When the at-fault driver’s liability insurance is limited, North Carolina law often shifts the focus to other available coverage—especially uninsured/underinsured motorist coverage—while also keeping a close eye on the wrongful death filing deadline.
Key Requirements
Policy limits cap the liability insurer’s payment: The at-fault driver’s insurer generally cannot be forced to pay more than the bodily-injury liability limits purchased for that vehicle.
Proper plaintiff (personal representative): A wrongful death claim is pursued by the estate’s personal representative on behalf of the beneficiaries.
UIM/UM may fill the gap: If the at-fault driver is uninsured or underinsured, UM/UIM coverage under applicable North Carolina auto policies may provide additional funds, subject to the policy’s rules and limits.
“Exhaustion” and notice rules matter: UIM benefits generally come into play after the liability coverage is exhausted by settlement or judgment, and UIM carriers have specific notice/participation rights that can affect settlements.
Stacking can change the available UIM amount: In some situations, North Carolina allows combining (“stacking”) UIM limits across separate policies, but not by adding limits for multiple vehicles under the same policy.
Strict filing deadline: Wrongful death claims generally must be filed within two years of the date of death.
Apply the Rule to the Facts: Because your child died at the scene after being hit by a car, the claim is likely to be a North Carolina wrongful death case that must be brought by the personal representative. If the driver’s liability insurance limits are not enough, the next step is usually to identify any UM/UIM coverage that applies (often through household auto policies) and to follow the UIM notice and “exhaustion” requirements before finalizing any settlement. If insurance still does not cover the full value, the personal representative may evaluate other responsible parties and other insurance policies, or pursue the driver personally for any uncovered amount.
Process & Timing
Who files: The personal representative for the child’s estate. Where: Typically North Carolina Superior Court in the county where the defendant resides or where the crash occurred. What: A civil wrongful death complaint (and related pleadings). When: Generally within 2 years from the date of death.
Insurance investigation and coverage mapping: While the civil case is prepared (or early in the case), the personal representative’s attorney usually identifies all applicable liability policies (driver, vehicle owner, employer/other entities if applicable) and all UM/UIM policies that may cover the loss (often household auto policies). This step can take weeks to months depending on how quickly policies and declarations pages are produced.
UIM settlement steps before signing: If the liability insurer offers its limits (or another settlement amount) and UIM may apply, the UIM carrier typically must receive proper written notice and has statutory rights that can affect whether the settlement can be finalized without harming the UIM claim. If the UIM carrier advances the tentative settlement amount within the statutory window, it may preserve subrogation rights against the at-fault driver.
Exceptions & Pitfalls
Signing the wrong release: A broad release signed too early can accidentally waive claims against other responsible parties or interfere with UM/UIM rights. Settlement paperwork should be reviewed carefully.
Missing UIM notice requirements: UIM carriers can have statutory rights to notice and to participate in the case. Failing to give proper notice before finalizing a settlement can create avoidable coverage disputes.
Assuming there is only one policy: There may be multiple liability policies (for example, different owners, permissive users, or other coverage layers). A careful insurance search can matter when limits are low.
Stacking misunderstandings: North Carolina law generally does not allow stacking UM/UIM limits across multiple vehicles within the same policy, but it may allow stacking across separate policies in certain situations. The details are fact-specific.
Waiting too long to open the estate: Because the personal representative brings the claim, delays in starting the estate administration process can slow down the ability to negotiate, file suit, and meet deadlines.
Conclusion
If the at-fault driver’s insurance is not enough to cover a North Carolina wrongful death claim, the liability insurer typically pays only up to its policy limits, and the personal representative must look to other available coverage—most often uninsured/underinsured motorist coverage—plus any other responsible parties or policies. The most important next step is to have the personal representative file the wrongful death lawsuit in the proper North Carolina court within two years of the date of death.
Talk to a Personal Injury Attorney
If you're dealing with a wrongful death case where the driver’s insurance limits may not be enough, our firm has experienced attorneys who can help you identify all available insurance coverage, protect UM/UIM rights, and track the filing deadlines. Reach out today. Call [CONTACT NUMBER].
Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.
