What is "Discovery" When it Comes to Lawsuits and Criminal Prosecutions?

We often have to tell our clients that much of the actual work that we have to do in a civil or criminal action involves the drafting/serving, and response to, what the law calls "discovery."   "Discovery" is a general term used to describe the process whereby lawyers exchange information - mostly long before trial - so that the parties can either work out a resolution or get ready for trial.   The general concept is that there should be nothing hidden from the resolution process and no surprises at trial. There are a number of rules in both the civil and criminal justice systems that spell out how and when this discovery stage proceeds.  In a civil case, the lawyers can serve and respond to written questions (called "interrogatories")  or serve and respond to document or evidence requests (called "request for production of documents").   The lawyers can conduct "depositions" of persons with knowledge (who may or not be witnesses at trial).    In a criminal case, there are no "interrogatories," but the lawyers do have to identify witnesses and documents (and produce documents).  Sometimes (very rarely) the criminal judge can order a deposition of a sick or difficult to secure witness - and that deposition transcript takes the place of the live testimony at the criminal trial.

Lots of times the clients have no idea of the amount of work that goes into the discovery phase of a case.  They see what happens when they are in court, but not what happens out of their view or hearing.   On the average, a lawyer spends 3 times the amount of work on the discovery part of a case than the lawyer spends on an actual trial or courtroom appearance.

So when a lawyer starts using the term "discovery," you can assume that the lawyer is talking about this part of the case process.   Feel free to ask what discovery has produced for your case - and assume that you, as the client, will have to submit information, documents, and, often, deposition testimony, as part of the discovery process.

Non-Cash Benefits Can be Used for Support Calculations

Without going into extreme detail on the case, the Ohio Supreme Court announced on October 16, 2013 that "employer provided benefits" (i.e. non-cash benefits) that a support obligor (i.e. the person who pays support) gets from employment (e.g. company car, car insurance, cell phone, etc.) may, like regular cash wages/salary, also be used to calculate his/her "income" for child support purposes.   This ruling obviously will have an impact on those child support obligors who received great employer paid benefits instead of cash money for their work.  Further, self-employed people who can legally deduct these benefits from their gross income for tax purposes STILL will have those items considered for their child support. Accounting offices for very small employers or self-employed people paying child support across Ohio will probably be making some changes .  . .

What is a "presentence investigation?"

After a defendant enters a plea of guilty or no contest to a criminal charge (or a DUI charge), a trial court judge often refers the defendant to the local probation department so that the probation department can conduct a "presentence investigation" on the defendant.   After all, most times most judges want as much relevant material they can read about the defendant before they pronounce what they believe is a fair sentence.  If the defendant is out on bond, the defendant must walk almost immediately to the probation department to be interviewed and have his/her background investigated by the probation department.  If the defendant is still in jail (because he/she did not make bond), the probation officer will come to them. Once the presentence investigation report is complete, it will be sent to the Judge, and, often (but not always - depends on the Judge) the attorney for the defendant will get to review the report. One of the most important things a defendant can do during this process is to be fair and honest with the probation department (although, if a defendant intends on appealing his guilty verdict, sometimes the defendant will want to continue his/her right to remain silent).  How the probation officer perceives a defendant often goes a long way toward what they Judge will think of the defendant on sentencing day.   Defendants who smirk or appear indifferent to the probation officer will often pay for that attitude on sentencing day (in one way or another).

So be nice - very nice - to your probation officer.  They may be just a clerk to you - but they are really little gods with a pen.

Subrogation "Hogs" and "Leeches" - and what they do to injured persons

We have blogged a tad about the concept of "subrogation" in the context of personal injury claims.  In short, if you are injured and incur medical bills, the entity that pays the bill (usually a government insurer like Medicare/Medicaid or a private health insurer) or the medical provider that rendered  the service, generally has a right to get paid back right out of the personal injury judgment or settlement proceeds.  For instance, if you are injured in a car accident that is not your fault, and your health insurance company pays $3000 of your medical bills related to the accident, your health insurance company will demand that you pay them back most or all of that $3000 when you settle your claim or get paid on a trial judgment for that injury.   This subrogation stuff leads to many many disputes between the injured party and the entity demanding subrogation reimbursement - especially when the amount recovered by the injured person is very low - or even less than the medical bills.  In fact,  some of the claims for subrogation reimbursement will result in the injured person getting NOTHING (because the reimbursement claim actually exceeds what the injured person recovered). So, as we do all of the time for our clients, an attorney will have to intensely negotiate a reduction in the amount that is actually paid to the entity claiming a right to subrogation reimbursement.   MOST of the time the entity claiming a right to subrogation reimbursement will agree to a reasonable reduction in the subrogation payment because if it was not for the pursuit of the personal injury claim, the entity would get nothing (they never pursue the claims on their own - they will almost always wait for the injured party to collect on their claim).   It use to be somewhat rare for an entity claiming a right to subrogation payment to be a pig about what they want paid back.   However, now many medical insurance companies and medical providers have hired private collection companies (or law firms) to collect on the subrogation claims, and since almost all of these companies/law firms get paid a percentage of what they can collect, these private collection companies/law firms become not just pigs - but hogs.  They tell us over the phone and in writing that they just don't care if the injured party gets next to zero for their injury - they still want it all - and they want us to pursue the tortfeasor, take all of the risks and time,  and get it for them (like leeches)  - or they will sue our client.   We recently had a woman who had over $102,000.00 in auto accident medical bills paid by a private insurance company called "Wellcare."   The private collection company hired by Wellcare (called "First Recovery Group") to pursue the Wellcare subrogation claim demanded that the injured woman pay over to them ALL of her settlement net proceeds that have been offered by State Farm insurance (they offered $100,000).    That's right, ALL of it.

They say in business that you can be a pig, but not a hog.    Pigs get fed, but hogs get slaughtered - unless you are a private subrogation collection company.

Call us about this if you want more examples or more explanation.  Stay tuned on this important issue.

New Ruling in Cuyahoga County Regarding GPS Devices Attached to Cars by Police

The Cuyahoga County Court of Appeals just issued a new ruling addressing the ongoing development of law regarding police using GPS devices attached to cars (so they can track a suspect's movements).  In 2012, the Supreme Court of the United States (in the case of United States v. Jones)  held that you need to get a search warrant to do this.  The police in this recent Ohio case claimed that since the Jones case was not the law at the time they placed their device, they had a "good faith" belief that what they were doing was legal at that time.  The Cuyahoga County Court of Appeals disagreed with the police here. In short, if the police want to track a defendant's car with an attached GPS device, they gotta get a warrant - something that probably will not be too hard to do.

The "Custodial" Requirement for Miranda Rights Warnings

Over the years, many clients of ours have told us that they were not read their rights when the police officer(s) questioned them.   They then want to know if they can get their statements "thrown out" or the whole case against them dismissed.    Here are 2 important things I tell them that apply here. First, in order for the police to have to give you any Miranda rights (i.e. "you have the right to remain silent...."), you have to be in "custody."   For example, if the cops simply knock on your door and ask to come in and ask you some questions (or approach you on the street to do the same), they DO NOT have to give you your Miranda rights.  This is because you are not in what the law calls "custody" (in other words, you are free to go and/or close the door).   If a police officer pulls over your car and comes up to your car window to ask you questions, you MIGHT be in custody and you MIGHT have to be read your Miranda rights if the police want to use what you say after that against you (these situations are very fact specific).    If the police officer has placed you under arrest, you MUST be read your Miranda rights  if the police want to use what you say after that against you.  This "custody" aspect of the Miranda rights issue controls the outcomes of many cases.  This very issue is in play right now in a rather big federal case here in Cleveland.

Second, a technical violation of the Miranda rights rule does not automatically invalidate the arrest or automatically require that the case be dismissed.  It just subjects the post-arrest/custody statements made by a defendant to a motion to suppress   - while most of the other evidence the police obtained (unless it was the result of what you said) remains in the case.

Advice:  Anytime the police call or knock, ask for a lawyer.  Always.

A recent acquittal for our client - big stakes and big issues

We recently had an acquittal for a client of ours who was accused of a serious and violent rape - one that occurred in 1993.   The state had recently matched his DNA to the DNA that was located on the victim from the rape kit taken from her on that awful night in 1993.  However, there were many other issues that the jury had to consider in addition to the DNA evidence (which we really did not contest).   We argued, among other things, that the burden of proof does not get lowered in response to the government's past failures to follow-up on DNA analysis of rape kits.  During trial, it was revealed to the jury that approximately 4000 rape kits sat on evidence room shelves for decades.  Sex crimes police detectives were so deprived of sufficient resources that they had no ability to follow-up on the vast overflow of cases they were assigned.  Now, because of recent events and, quite frankly, new politics, these cold cases are being pursued by the State of Ohio. By the way, we commend the State of Ohio for now pursuing these cold cases with the vigor they have always deserved.  We never frown on thorough police investigations.

Read more about this case here.

Read more about these types of cases here.

More cases like this are sure to follow.  Stay tuned.

Cellphone Location Data - What is it and what do the police need to do to get it?

In a recent federal court ruling, a federal court of appeals court held that police do not need to get a search warrant in order to obtain "location data" for a cell phone that they wanted to track (this is much different than actually listening in on a cell phone conversation).  According to the federal court of appeals opinion (which focused solely on the federal constitution), all the police need to do is functionally ask a magistrate judge to order cell phone providers to produce the information - and that they do not need to get a normal search warrant signed by a judge to obtain the information.  Other courts (mostly state courts relying on that state's individual state constitution) have reached different conclusions.   So we expect that at some point in the future (but not the very near future), the United States Supreme Court will have to answer this question for all of us. Stay tuned here - we will let you know how this issue develops.  And be aware that the Government now has an argument that they can track your cell phone movement without a warrant.

Victory for good guy Dad

child and father

Last Friday we received  an opinion from the Cuyahoga County Court of Appeals which agreed with our argument that the father of a small girl should be named that girl's residential parent.   That father had to hire us when he came to the conclusion that the child's mother was much more interested in a party/social life than she was in becoming a stable parent.   While the child was in her custody, the mother had picked up her second DUI, picked up another alcohol-related charge, and had ongoing serious social drinking issues - and demonstrated a number of other immature parenting issues.  She also moved 6 times in a 2-year period.   The father (our client) had a long-standing stable job and owned his own home for many years - and no criminal history.   He had the child on his health insurance and always paid his child support.    The trial court magistrate  (who heard the case at trial) determined that the father (our client) essentially provided much more stability than the mother, and designated the father as the residential parent.  However, for reasons that were never completely clear, the trial judge(who did not hear the case at trial) overruled the magistrate - and left the mother as the residential parent. The Court of Appeals reversed the trial court judge and reinstated the magistrate's decision.    The child is now going to reside with Dad.  What a solid victory for good dads all over the area and a great victory for the child.

This one felt good.

Zimmerman

OK, so now that at least 20 people have come up to me and asked what I thought about this Zimmerman verdict, it is now somewhat incumbent upon me to post what I think about what happened in the State of Florida earlier this month.  This is not political and this is not about social issues (discussions for another day in a non-LEGAL post). Point 1: I practice criminal law in the State of Ohio - most often in the northeastern corner of Ohio. Like every other state in the Union, Ohio has its own individual and different set of statutes and criminal rules that regulate how criminal cases are to be prosecuted and tried in the Courtroom.   In fact, Cuyahoga County (my home County) has its own specific "local" rules on how criminal cases are to be processed - which supplement all of the Ohio state-wide statutes and rules.   Point being: every state (and, for the most part, every locale) has its own set of specific laws on how criminal cases are prosecuted and tried.   Any lawyer who is not from the specific area where this case was tried who attempts to offer even an indirect opinion on the verdict is essentially reckless - and you should ignore them completely.  Just because CNN or Fox News found some talking head lawyer who claims to have some criminal justice experience does not mean that person has the information or experience to comment on the outcome of this case.

Point 2: What happens inside the courtroom is what controls the verdict - not what happens outside of the Courtroom in the media.   The Courtroom itself is, to me, a sacred temple and gateway of information that goes to the jury.  Much of the battles we lawyers engage in has to do with what should or should not be heard by the jury - and I mean much.  What the jury hears/sees or does not hear/see is controlled by some rather well litigated rules.   This process is designed to prevent legally irrelevant facts, lynch-mob mentalities and/or political issues from taking over any case.    The only local lawyer (see point 1 above) who could comment on the verdict of this case would be one who either watched the ENTIRE trial or read the ENTIRE transcript of the trial - including but not limited to the very important jury instructions.  Jury instructions are the rules of the road that the jury has taken an oath to follow.

So be careful out there before you make any conclusions about the verdict in this case - or even taking the proverbial word of any so-called criminal law expert.  Hopefully, our friends in the media will take the time to speak to experienced criminal justice lawyers who regularly practice in the area where this happened  - and only get their opinion if they have read the entire transcript first.

Your comments are welcome.

The Horrors of Insufficient "Under-Insured" and "Uninsured" Motorist Coverage.

Go into that office desk drawer and pull out your auto policy - now.   Look at the specific amount of "under-insured" and "uninsured" coverage that you and your family has.  We have had too many clients find out AFTER a serious accident with a person without insurance or with minimal insurance that the "under-insured" and "uninsured" coverage in their policy was VERY insufficient.   Getting a good amount of INCREASED coverage cost, in relation to the whole policy, is very little. We just had another client who had a serious automobile accident.  Her medical bills total over $100,000.00 - and those bills are going to continue to climb.   The person who caused the accident had only $100,000.00 worth of coverage - and the health insurance carrier who is responsible for paying our client's medical bills has what the law calls a "subrogation" right to seize the insurance proceeds of the person who caused the accident.  So, in the case we have now, the health insurance carriers will try to seize ALL of the $100,000.00 of the auto insurance proceeds (we will fight this of course).  Sadly for our client, her "under-insured" and "uninsured" coverage was only $25,000 - the state minimum.     What a disaster for the client.

As we have posted before, we suggest nothing less than $500,000 worth of liability coverage to protect your own assets - and an equal $500,000.00 worth of "under-insured" and "uninsured" coverage in case the folks that injure you have no or insufficient insurance.  Call your insurance broker and see what the additional coverage costs.  You will be surprised how cheap the increase is.

Do it now - not after an accident.

DNA - The New Fingerprint for the Police

The Supreme Court of the United States issued an opinion today which ratifies the current police procedure of collecting DNA samples from many arrested individuals for storage in a DNA database - just like they have done for decades with fingerprints and photographs.   One of the persons arrested by the police and who had his DNA collected took his objections all the way to the Supreme Court of the United States under the claim that the collection of the DNA violated his constitutional right from unreasonable search and seizure. The United States Supreme Court, in a narrow 5-4 decision, disagreed.  They held that the collection of DNA from arrestees of "serious offenses" could be taken for the same reasons they take fingerprints and photographs.  The Court held there was no fundamental difference between the science behind fingerprints and DNA.

The past meets the future in law enforcement.

Watch those texts - they can be used against you.

A recent Ohio Court of Appeals decision held that it was permissible for the prosecution (in a murder case) to have a witness testify to "text messages" that the witness had sent and received from the defendant.   The defendant's lawyers argued that the only way a jury could get to see or hear this type of evidence is if the cell phone company had an employee "authenticate" the texts.  However, the Court ruled that the witness alone (without the phone company coming in to testify) was "sufficient" to authenticate the messages. So, what does this mean?   Be careful about what you send text message-wise.   Many phone companies save these messages for a sufficient period of time to allow the authorities or even civil litigants to get them in discovery - and the recipient can choose to save them indefinitely.  These messages can come back to haunt you.

The Duty of DUI Disclousre by the Defendant

gotcha images

The Supreme Court of Ohio issued a decision today which involves, from a legal standpoint, the intersection of "public records" requests (and information obtained from those requests)  and a defendant's legal duty to reveal to the prosecution the documents and evidence a defendant will try to use at trial.    Just like a prosecutor's duty to disclose evidence the prosecution wants to use at trial, the defendant has a reciprocal duty to disclose the evidence the defendant wants to use at trial.   In this case, the lawyer for the defendant tried to use documents that were obtained through a "public records" request which the defense lawyer had used outside of the trial court discovery and subpoena power.  The Supreme Court of Ohio held that the defense lawyer had a duty to disclose the existence of these records to the prosecution if the defendant wanted to use them at trial. When it comes to criminal discovery, the proverbial barn door should always be open.  In short, no sneaky "gotcha" tactic will be permitted by the prosecution or the defense.

Divorce: Non-Marital Property Can Change ("Transmute") into Marital Property

These days there are many marriages where each spouse came into the marriage with their own individually-owned "non-marital" property (for example, a house) - and even some property acquired during the marriage can be considered "non-marital property."   Under Ohio divorce law, this non-marital property is called "separate property."  For the most part, "separate property" is not subject to division by the divorce court - so many parties assert that an item of property is or is not separate property.  A divorce statute specifically lists what is "separate property" - and that list is generally: (1) inherited property, (2) property owned by a spouse before a marriage, (3) personal injury monies recovered by a spouse (other than for loss of earnings), and (4) a "gift" given solely to one spouse. Even if a certain piece of property was, without much dispute, "separate property" at one time, that item of property can lose its classification as "separate property" if that item of property is "transmutted" (i.e. transformed) into "marital property" because (1)  the parties "commingled" the "separate property" with "marital property" and (2) it is difficult or impossible to "trace" the separate property out of the marital property.

So, as much as marital bliss can clog the mind, parties should be careful about commingling separate property with marital property unless they specifically choose to do so - knowing the consequences.

Again: Watch those arbitration provisions in contracts!

We have come across still another decision from an Ohio court of appeals which again shows that Ohio Courts will somewhat strictly enforce arbitration clauses in contracts.  In that regard, we again (we have blogged about this a few times before) encourage all of our readers to carefully review ALL of the contracts they are signing to see if there is an arbitration provision in that contact.  Contrary to popular belief, arbitration is NOT less inexpensive than filing a lawsuit in Court (the filing fees are much higher and arbitrators get paid by the hour [judges are free]).  Further, arbitration is often "binding" in that neither party has the right to any appellate review of the decision of the arbitrator. Be careful out there . . . .

The Second Amendment

Well, just when we all thought we had it all straight with our “personal” views of the Second Amendment, along comes Newtown.  Newtown has changed many person’s specific opinions they had about guns, gun possession and gun control. Some folks have changed their minds - and some have dug in even further on their opinions.  So let’s do a VERY quick summary of the Second Amendment. The Second Amendment is just that: the second of the Bill of Rights - right after the First Amendment (which we all may know protects our right to free speech, freedom of religion, freedom of the press and the freedom of assembly and freedom to protest).   The Founding Fathers thought this gun issue was so important that they placed it before the Fourth Amendment (illegal search and seizure) and the Fifth Amendment (the right to remain silent, to grand jury protection, double jeopardy and due process).   So what does is say?  Its one sentence text states:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Many of the legal and philosophical issues associated with the Second Amendment involve the first part of that sentence: “A well regulated militia being necessary to the security of a free state..”   Did the Founding Fathers mean that the right to bear arms was only related to the necessity of having a militia, or was that right independent of whether we have a militia or whether we are members of a militia (that is, did the right belong to all “individuals” regardless of membership or existence of a militia). The United States Supreme Court has only recently held that the right to bear arms is an “individualized” right - which generally means that you don’t have to be part of an army or militia in order to have a Constitutional right to possess and use a gun.  It should be noted that Ohio also has a Second Amendment - but does not have any “well regulated militia” language in the first part of the sentence.  So the “well regulated militia” argument has very different ramifications in Ohio. The very Supreme Court opinion that recognized that the Second Amendment creates an “individualized” right also made it very clear that, while the Government cannot outright ban gun possession and use, the Government may "regulate" gun possession and use.  So now the big argument is just how much “regulation” the Government can engage in.   Can the Government require all gun sales to require a background check (even private sales between individuals outside of a gun show or gun store)?   Can the Government limit the capacity of ammunition clips?   Can the Government limit the type of guns (example: “assault weapons”)?

As the new flurry of federal legislation is proposed in Congress, we will see if Congress can actually pass such legislation, and, if such legislation is passed, whether the federal courts will uphold such legislation. We will continue to monitor the development of these Second Amendment issues as this new possible legislation pushes itself through the halls of Congress.  Stay tuned.

What is "imputed" income in a divorce case?

roll of money

We have had some recent litigation in a divorce case where we had to ask the divorce judge to "impute" income to the other spouse.  This spouse refused to seek a job even though she was clearly able to do so.  We found it ironic that the lawyers for this woman hired their own expert who ended up agreeing with our expert as to the employability of the woman - as well as the income she could make. Often divorce courts have to "impute" income to those spouses who are either deliberately  "unemployed" or "unemployed."  Often in divorce cases, one spouse refuses to make any income  - or deliberately compromises his or her potential income  - in an effort to prevent the other spouse from sharing in that income.   This comes up very often in disputes involving child support  (the support to be paid for the benefit of the children) and spousal support (the support to be paid to the spouse).  Sometimes this is easy to prove - for instance when a spouse just up and quits his or her job.  Sometimes it is  not - for instance when a spouse is self employed and is able to hide the income or the income producing capabilities.   But it never ceases to come into play in the cases we see.

Let us know if we can help you here.

Which personal injury attorney should I hire?

question marks

The vast majority of qualified personal injury lawyers do not advertise on TV.  There are, however, a very small by noticeable group of lawyers that spend a huge amount of money advertising on TV and radio and on the pages and backs of the Yellow Pages.  There is nothing illegal or unethical (according to the rules that govern lawyers) about this type of marketing.  Nothing.  However, most lawyers in the personal injury business have decided to let their experience and reputation do the talking for them.  And many lawyers these days have opted to promote their practices through web sites and social media - which is far less costly (and arguably more dignified)  than TV, radio and the Yellow Pages.  Regardless of how you hear about a lawyer you may hire, here are the questions that we believe that you absolutely need to ask: 1.  Is the lawyer you are first talking to the same lawyer that will stay with your case till the end - including trying the case if the parties cannot settle?   Many of the faces you see on TV and in phone book ads are not the lawyers who will actually handle your case or try your case - and you should know that up front.   So ask this very important question at the very beginning of your search.  The lawyer you meet with should be the lawyer who handles all lawyer aspects of your case.

2.  Has the lawyer you are talking to actually tried a personal injury case in the last 24 months?   If the answer to this is no, then you need to ask why - and then ask specifically what type of cases this lawyer has actually tried  - and when this lawyer tried them.  Trying cases is like anything else - your skills stay tuned if you keep in the game.

3.   Has your lawyer presented cases in front of all or most of the judges in the courthouse?  Most active and experienced lawyers appear on a regular basis in front of almost all of the judges of the local courthouses.   Each judge has his or her own particular way of doing things,  and the experienced lawyers often know these particularities well.

4.   What specific experience does the lawyer have in dealing with "subrogation" issues?   "Subrogation" issues involve legal and enforceable claims that medical providers and medical insurance companies have to any of the settlement or verdict monies that an injured person receives from the tortfeasor.  This has become an extremely complicated area of personal injury law - and the rules seem to change almost monthly.  In that regard, make sure that your personal injury law firm has experience on these issues and is staying on top of the emerging law on these issues.   Subrogation issues have serious bottom line effects on the net proceeds an injured party can obtain for the injury.

So when you talk to a lawyer you are considering hiring for your personal injury claim, ask these very important questions.

Auto Insurance in Ohio - What should I have?

insurance contract

We just processed a new case where (again) we and the client learned that the insurance available (both the tortfeasor's and the client's) to compensate our client was awfully low - leaving the client very frustrated and depressed.  This has led us to once again put together a post about the basics of automobile insurance.   Here are what we consider to be the basics: First, get the right amount of coverage.   Regardless of your income or assets, having automobile insurance coverage limits LESS than $200,000 is just plain crazy.   With the ever rising costs of medical bills (both ER bills and post-accident treatment bills),  coverage in Ohio of only $12,500 (the minimum required under Ohio law for now) might just barely cover the ER bills - leaving nothing for your pain and suffering or any further medical treatment.  The writer of this blog is the married father of 4 kids - and he has $500,000 - with a million dollar "umbrella policy on top of that (umbrella policies are something we can explain in another post).  In 2013, Ohio will raise the minimum amount of coverage that all drivers must have to $25,000 (per person) and $50,000 (per accident).   However, this is still not enough.   You might be surprised to know that increasing your insurance coverage does not mean that your premium will go up dramatically.  From what we hear, MOST of your premium covers the first $25,000 of coverage, and increases in coverage does not raise the premium proportionally.  You can also consider raising your deductible in order to get a reduction of your premium.  Most insurance brokers rarely tell you this for obvious reasons.

Second, make sure you have what is called "uninsured" and "underinsured" coverage that is at least $200,000 as well.   You would be surprised how many drivers still drive without good coverage - or without any insurance at all.    "Uninsured" insurance covers you when the tortfeasor has NO insurance.   "Underinsurance" takes over when the insurance of the tortfeasor is so low that you need your own insurance to make up the difference.

Look at your coverage now and talk to your insurance broker.  Call us if you have any other questions.  800-529-1966