On the evening of June 23, a dark-colored SUV struck two pedestrians on Route 28 in West Yarmouth and drove away. One person was injured. Police were left with almost no leads. The driver has not been identified.
That scenario, a hit-and-run on one of Cape Cod’s busiest summer roads, raises a question most people have never had to think about until it happens to them: if the driver who hit you flees the scene or is never identified, do you still have a legal claim? And if so, against whom?
The answer is yes, in most cases, and the mechanism that makes it possible is something every Massachusetts driver already pays for without necessarily knowing what it does.
Uninsured Motorist Coverage and What It’s Actually For
Massachusetts requires every driver to carry auto insurance, and buried within that required coverage is a component called uninsured motorist coverage, or UM coverage. Under M.G.L. c. 90, § 34O, Massachusetts insurers are required to offer uninsured motorist coverage to every policyholder, and most Massachusetts drivers carry it as part of their standard policy.
UM coverage is exactly what it sounds like: it steps in to compensate you when you are injured by a driver who either has no insurance or who cannot be identified, as in a hit-and-run. You make the claim against your own insurance company, not the at-fault driver’s, and your insurer pays the damages you would otherwise have recovered from the driver directly.
This means that in a hit-and-run like the one on Route 28 in June, an injured pedestrian who has their own auto insurance policy, or who lives with a family member who does, may have a direct avenue to compensation even if the driver is never caught. The claim is brought under the victim’s own policy, and the damages available, including medical expenses, lost wages, pain and suffering, and in wrongful death cases the full range of losses available under Massachusetts wrongful death law, are the same as they would be in a standard personal injury claim.
Underinsured Motorist Coverage: When the Other Driver Has Insurance But Not Enough
A related and equally important coverage is underinsured motorist coverage, or UIM coverage. This applies in a different but equally common scenario: the driver who hit you has insurance, but their policy limits are too low to cover your actual damages.
Massachusetts minimum liability limits are $20,000 per person and $40,000 per accident. If you suffer a serious injury, including a traumatic brain injury, a spinal injury, a severe fracture, or any condition requiring surgery and extended rehabilitation, your damages can easily exceed those minimums by a significant margin. UIM coverage bridges that gap by paying the difference between what the at-fault driver’s policy covers and what your actual losses are, up to your own UIM policy limits.
If you carry $100,000 in UIM coverage and the at-fault driver has a $20,000 policy, your UIM coverage can make up to $80,000 in additional compensation available to you. The exact calculation depends on your policy terms and the specific facts of the claim, but the core principle is that you don’t have to accept inadequate compensation just because the driver who hurt you was underinsured.
What Pedestrians and Cyclists Need to Know
Many people assume that UM and UIM coverage only protects them when they’re inside a vehicle. That’s not correct. Under Massachusetts law, UM and UIM coverage extends to injuries you suffer as a pedestrian or cyclist when struck by an uninsured or underinsured driver, as long as the claim arises under a policy that covers you, either your own policy or a household family member’s policy.
This matters enormously for Cape Cod in summer, when large numbers of pedestrians and cyclists are on the road and a significant portion of the drivers sharing those roads are visitors from out of state, some of whom carry only minimum-limit policies from their home states that may fall well short of Massachusetts standards.
Hit-and-Run Specific Requirements
Filing a UM claim for a hit-and-run has one procedural requirement that doesn’t apply to standard UM claims: in most cases, the hit-and-run must be reported to police promptly, and the physical contact requirement must be satisfied. Massachusetts courts have generally required that the unidentified vehicle actually made contact with the victim or the victim’s vehicle, rather than a situation where a driver swerved to avoid a car and lost control without any physical contact occurring. In a pedestrian hit-and-run like the Route 28 incident, where the vehicle struck the victims directly, that requirement is clearly met.
The timing of the police report matters too. Filing promptly, while details are fresh and any potential surveillance footage or witness accounts are still available, protects both the criminal investigation and your civil claim. Your own insurer will want to see documentation that you reported the incident to law enforcement.
Your Own Insurer Is Not Necessarily on Your Side
One thing that surprises many people is that even though you are making a claim against your own insurance company under your own policy, the insurer’s interests are not the same as yours. Your insurer is obligated to pay valid UM and UIM claims under your policy, but it has a financial interest in minimizing what it pays, the same as any defendant’s insurer would. Adjusters will evaluate your claim, investigate the facts, and may dispute the extent of your injuries or the value of your damages.
Massachusetts Chapter 93A and the insurance regulations that govern unfair claims settlement practices give you legal recourse if your insurer handles your claim in bad faith, as I’ve discussed in prior posts on Chapter 93A and insurance bad faith. But the practical takeaway is that you should approach a UM or UIM claim with the same care you would bring to a claim against a third party, which means documenting your injuries thoroughly, following your doctor’s treatment plan, and ideally having an attorney review the claim before you accept any settlement offer.
What to Do If You’ve Been Hit by an Uninsured or Unidentified Driver
Call 911 immediately and make sure a police report is filed. Get medical attention right away even if you feel you can manage the pain, because the documentation created in those first hours is foundational to any claim you make later. Photograph the scene, your injuries, and any property damage. If there are witnesses, get their contact information before they leave.
Notify your own insurance company of the incident promptly, as most policies require timely notice of a potential UM or UIM claim as a condition of coverage. But do not give a recorded statement to your insurer or accept any settlement offer before speaking with an attorney. The statute of limitations for UM and UIM claims in Massachusetts is generally three years, but policy terms and specific circumstances can affect that timeline.
If you or a family member has been injured in a hit-and-run or by an underinsured driver on Cape Cod or anywhere in Eastern Massachusetts, I’m happy to review what happened and help you understand what coverage may be available to you. Call me at 508-775-3118 or email [email protected] for a free consultation.
Attorney Blair E. Weigand — Helping those with legal questions for 35 years and counting.