California Requires Insurance Carriers to Offer UM / UIM Coverage

In some cases, an attorney may have to go an extra step in securing valid coverage for an accident. Like in life, not every person driving a vehicle is a perfect driver. Some may not have a valid driver's license. Some may not have liability insurance or proof of financial responsibility.  Even though California requires liability insurance with limits of a minimum: $15,000, some drivers disregard the law.

An accident that involves an uninsured driver will result in: (1) a license suspension for the uninsured driver; and (2) trigger coverage for the other driver pursuant to the uninsured motorist provision in the insured's own insurance policy.

Bad news is sometimes given to clients when it is confirmed that they waived their uninsured / underinsured motorist coverage. Thus, they are left with the sole option of pursuing damages from the uninsured driver directly, which typically means that they are left with no justice (most often, uninsured drivers have no recoverable assets and the costs of seeking a judgment outweigh any benefits).

But, a good attorney will go the extra mile. They will not take the insurance carrier's word without proper evidence. Trust, but verify.

California Insurance Code section 11580.2 subsection (a)(1) obligates the insurance carrier to offer uninsured motorist coverage. It also requires a written waiver of the insured when they do not want the coverage. An attorney must always request the written waiver when the carrier states that there is no UM coverage.

If the carrier cannot provide the written waiver with the client's signature, pursuant to subsection (p)(7), uninsured motorist coverage will exist for the insured. It enables the insured to recover a settlement to pay for medical bills and pain and suffering.

If you, or someone you know, has been involved in an accident with an uninsured motorist, contact an experienced attorney. He or she may be able to obtain UM coverage despite an insurance carrier's assertions that no UM coverage applies.

Uber Accidents After the Recent California Labor Commission Ruling

My wife and I use Uber all of the time. It's great. One does not have to worry about parking or drinking and driving. The service is convenient and easy to use. Ride-sharing technology has been great for consumers.

However, what happens when passengers are injured while riding in an Uber car? With a recent ruling from the California Labor Commission, plaintiffs may benefit. The California Labor Commission found that Uber drivers are employees, not independent contractors. An employee classification for its drivers will mean a number of different things for Uber, including how it deals with injury accident claims.

Under California law, a legal doctrine called "Respondeat Superior" (I know, lawyers love Latin) holds employers responsible for the negligent acts of their employees. Given certain elements must be met, i.e. the Uber driver must have been working at the time of the accident, nevertheless, this ruling will allow injured parties to proceed against Uber directly.

Further, Uber will have to carry $1 million in liability insurance for its drivers. The insurance policy will be excess to the driver, meaning that the driver's own automobile insurance will be primary in the event of a claim. An injured party will first have to recover the policy limit from the Uber driver before he or she can recover from the Uber $1 million policy (not all injuries are serious enough to warrant a claim against an excess insurance policy).

Catastrophic accidents routinely pose difficulties for plaintiffs because there are insufficient policy limits. For example, an injured party may lose the use of his or her legs, but only be able to pursue the defendant's liability insurance, which has a limit of $15,000. In the described hypothetical, the injured party will have to bear great costs, including all disability bills. Should a plaintiff be involved in a catastrophic accident with Uber, this ruling will ensure larger limits, and potentially provide greater protections for the plaintiff.

Finally, the issue of agency, or independent contractor v. employee, is still is being litigated. Uber has pending lawsuits with both state and federal courts in California. While the Labor Commission is a set back for Uber, and a win for consumers, nothing is certain, or settled, at this point.

Proposition 213 in Motor Vehicle Accidents

A number of our blog posts have touched upon the subject of prospective clients being injured by the actions of an uninsured motorist. This post will talk about individuals who are uninsured, that happen to get injured by an insured party in a motor vehicle accident.

Back in 1996, California voters passed Proposition 213. The purpose of the proposition: remedy an imbalance in the justice system that resulted in unfairness when an accident occurred between two motorists -- one insured and the other not. The law wanted to encourage insurance, and legal, compliance. So, it precluded uninsured motorists, and drunk drivers, from pursuing noneconomic damages in a lawsuit. Noneconomic damages include, pain and suffering, physical impairment, and disfigurement.

Prior to litigation, when there is a claim open with an insurance company, Proposition 213 can have a serious impact on negotiating a settlement. If a party is uninsured, but bringing a claim, the value of his or her damages are limited. Typically, adjusters will calculate noneconomic, or general damages, in their evaluations. But they will also calculate Proposition 213 if the claimant is uninsured -- they have an incentive to settle it for far less.

Initially, plaintiffs attempted to challenge the constitutionality of Proposition 213. The Equal Protection Clause, First Amendment, and Due Process Clause were all cited as grounds for invalidating Proposition 213. The claims all failed and Proposition 213 was upheld by the California Supreme Court.

Since 1996, the law has been expanded and interpreted broadly -- sometimes unjustly. Of course there are exceptions in place. For example, an uninsured employee driving an employers vehicle, which is not insured, can still recover if they are injured by a third party. A decedent's estate may also pursue general damages if the decedent was uninsured. Nevertheless, Proposition 213 is still applicable today, and important in evaluating a potential personal injury case.

The important take away: make sure you are insured! It is not only the law, it is also in your financial interest. And like our office has stated in other posts, you may as well add "uninsured / underinsured motorist coverage" and "med pay coverage." As always, we would be happy to speak with prospective clients to discuss your potential case in more depth. 

Primary and Secondary Insurance in an Automobile Accident

The world of California insurance is based on contract law, California statute, and insurance regulations. There are many overlaps, some of which can lead to confusion. Insurance disputes can cause a person to become disoriented -- because there is potentially a lot of issues that need to be resolved.

One such issue that arises frequently in my practice as an accident attorney: which, if any, insurance policy provides coverage for the accident. Two individuals involved in an accident does not mean that there will be only two policies in place at the time of the accident. Let me explain.

Yes, one could expect at least two insurance policies in place at the time of the accident if there are two parties involved (because California law requires insurance when driving); but, there could be two more if they were both driving during work, and within the scope of their work. Most employers carry commercial auto policies. Therefore, an attorney, representing an injured party, should certainly investigate to see whether there was an employer auto policy in place at the time of the accident.

But wait, there still could be more policies (more than 4)! Let us take the same hypothetical above, and add one set of facts. Two individuals are involved in an accident, during work, but one of them is borrowing his uncle's vehicle. Now, there could be a potential issue with the vehicle involved in the accident, because it is owned by a non-party to the accident. Insurance policies will sometimes follow the vehicle, particularly if the driver is a "permissive" driver, meaning that the driver had permission to drive it. With this new set of facts, there could potentially be 5 auto policies in place.

For fun we can add more. Take the second hypothetical but add yet another twist. Say two individuals are involved in an accident, during work, one of whom was driving his uncle's vehicle, but the accident was partly caused because a road was not properly maintained. The road should have been maintained by a government entity but it was not. Governments carry insurance too. The third hypothetical could involve 6 auto policies.

Because insurance can be carried by a number of parties, and can potentially cover the same accident, it is important to understand some of the basics of primary and secondary coverage.

More policies does not necessarily mean that an injured party will receive more. A person's damages are limited to the extent of the person's injuries. One million dollars of insurance will not be paid out (more often than not) for an extremely minor collision. However, more policies does mean that in the event of a catastrophic accident, a person will likely receive more.

At the outset, insurance carriers will determine who is the primary carrier. Those insurance carriers that are not primary are usually referred to as "excess" carriers, meaning that they will not have to pay out a claim unless the damages exceed the primary insurance's "limit." Typically the primary insurance carrier is the insurance carrier of the negligent party. Thus, if a primary carrier only has a limit of $15,000, it is more likely that an "excess" carrier will have to pay out a claim as well, if the injuries were significant.

Like I stated at the beginning of this blog post, it can be problematic if an injured party does not have the same knowledge as a seasoned personal injury attorney when it comes to insurance. It is extremely wise to contact a lawyer for the reasons above for a consult. Should you need to discuss a potential case, we welcome your calls and questions.

I Was Involved In a Motor Vehicle Accident; Now What?

Motor vehicle accidents are common in Los Angeles. In fact, it brings to mind the Saturday Night Live skit, "The Californians." All too often, Angelinos communicate about their commutes, experiences on the road, and traffic. Also, people talk about their unfortunate "accidents" on the highways.

When you, a loved one, or friend, is involved in an accident, there are some steps that should be taken immediately. By taking these steps, you can ensure that your injuries are addressed and that any future claims are protected.

One, pull over, if possible, to a safe location with the other driver involved. After an accident, it is easy to get distracted and careless. Remember to protect yourself by moving your vehicle to a proper stop area, if possible.

Second, call the police. Emergency personnel are trained to handle all types of accidents, including motor vehicle. This step addresses a few things: (1) you get to reflect on any pain and whether you are severely hurt; (2) you get to engage an independent third party who can testify as to what happened during the incident; and (3) you can receive immediate medical treatment, if necessary.

Third, exchange the proper information with the other party involved. This step is common knowledge, or so it seems these days, but it is essential. Have the other driver give you insurance information, personal information, like address and phone number, and ask him or her what happened immediately prior to the accident. Take mental notes as what happened during this exchange.

Fourth, give a statement to the police and see if any witnesses are at the scene. Let me be clear: it is extremely important that you seek immediate medical attention if you need immediate care. In the event that you do need immediate medical attention, do not stay at the scene of the accident. Inform the emergency personnel and proceed to a hospital. But, if your injuries do not need immediate attention, talk to any third parties who may have been near or at the scene of the accident. Collect their information too.

Fifth, take notes as to where your vehicle is going, if towed. Usually, vehicles are damaged to such an extent that they need to get sent to a body shop. It is important to have the body shop and towing information for the future.

Sixth, go to your doctor and if you do not have a primary care doctor, go to a hospital. Even if your injuries are not severe, it is important to seek treatment as soon as possible. Attorneys are not doctors, and more often than not, neither are the individuals involved in the accident (as a matter of probabilities). Doctors are the best professionals suited to ascertain the extent of your injuries and how to treat it appropriately. Do not hold off going to the doctor, because it could lead to more medical problems.

Seventh, open up insurance claims with your own carrier and the carrier of the third party involved in the accident. Automobile insurance, required by law, will have information about your coverage, including whether you can obtain a rental, and how quickly your vehicle can be repaired, if at all.

Eighth, contact an experienced personal injury attorney. Accident lawyers know how to resolve personal injury disputes, deal with insurance companies, and preserve your rights. It is simply not smart to move forward without representation, because of the nuances of personal injury law.

This is not an exhaustive list, but these steps should be taken after an accident. Of course, accidents are frustrating, painful, scary, and annoying. But hopefully, this short blog can make the experience less frightening. We welcome your calls and questions; our firm would love to help if you or a loved one has been involved in a motor vehicle accident.

Leaving the Scene Could Make You A Felon

Three-Year Old Tariyah Williams

When three-year old Tariyah Williams darted out of her yard into the street, Florida driver Eric Clayton barely had time to brake before hitting the little girl. Eric stopped, carried the child back to her yard, spoke a few words to witnesses, and abruptly left the scene of the accident. Tariyah later died from her injuries and Eric turned himself into the local police station. He is now facing up to 15 years in state prison on felony-hit-and-run charges. The irony; media reports suggest he may not even have been at fault in the incident and, if so, would likely have been able to walk away from the accident with nothing more than his memories to haunt him.

 

Take responsibility

Car accidents are serious and stressful enough. Exacerbating the circumstance by leaving the scene of an accident can turn an already difficult situation into a misdemeanor or a felony in California; even if you did not cause the accident.

Under California Vehicle Code 20002, drivers are required to do the following:

• Immediately stop your vehicle
• Give the other party your identifying information  (your name and current address) 
• If other parties are on the scene, provide your driver’s license and vehicle registration upon request. 
• If you are not the owner of the car you were driving, you must provide the name and address of the car’s registered owner.

 

Criminal charges

Failure to do the above could result in a misdemeanor hit and run charge. Misdemeanor hit and run charges carry steep penalties. If you are convicted you could face up to a $1,000 fine, or six months in a county jail. Even if the accident was not your fault!

Beyond that, if you injure or kill someone in an auto accident and flee the scene, you could be charged with a felony hit and run. A felony hit and run carries penalties including a fine of between $1000 and $10,000 dollars, and 16 months to 3 years in state prison. If someone was killed or suffered a permanent serious injury in the accident, the state prison sentence increases to two to four years.

  

Dangerous circumstances

In some circumstances, it might not be safe to remain at the scene. For example, if you need medical attention yourself, you absolutely should make sure that your injuries are treated; even if that means heading for the hospital. Additionally, exigent circumstances might make staying on the scene dangerous. At times, upset relatives or other witnesses may pose a threat or traffic or weather conditions might be unsafe. However, before you leave the scene of an accident, make sure that you have a concrete reason for doing so.

 

It’s the right thing to do

Regardless of who is at fault in an accident, all parties involved should stay on the scene and do whatever is necessary to help resolve the situation. Injured parties should be attended to, the police should be called, insurance and contact information should be exchanged, and efforts should be taken to clear the way for other traffic to avoid additional collisions. Even without a legal duty, these things help to make the roads safer for everyone and remember; if you were the injured person, you’d want someone to stay and help you.