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.

Your Car Probably has a Black Box: What Story Does Yours Tell?

On March 18, 2014, Malaysian Airlines flight 370 disappeared en-route from Kuala Lumpier to Beijing sparking a massive search and ongoing mystery. Neither the plane nor any of its passengers has yet been found, though emergency personnel believe they may have located the flight’s data recorder at the bottom of the Indian Ocean. Flight data recorders collect a wealth of information about the condition and operation of airlines and retrieving this “black box” would tell researchers exactly what happened to the airplane and why it went down. While this data may prove critical to understanding what happened to Malaysian flight 370, many people may not realize that most cars in the United States have similar devices. In fact, pending federal legislation may require electronic data recorders in all cars by 2015. Expanding the use of EDRs in automotive applications offers a number of potential benefits such as improved auto and road safety through better accident data, however, the new law has renewed the concern of many consumers and privacy advocates over exactly how such data will be used.

What Is an EDR?

Electronic Data Recorders monitor certain signals from the vehicle and record that information shortly before and during an accident event. This information can later be retrieved and analyzed to help researchers better understand exactly what went wrong during a crash and how to prevent future accidents. With the implementation of mandatory OBD II engine and emission monitoring in the mid 1990s, many manufacturers took the opportunity to begin tracking and recording additional information for use in crash analysis. Today, the NHSTA estimates that more than 90% of all cars on the road are equipped with some form of EDR device; exactly what data the EDR records depends on the manufacturer. Under proposed federal law, 15 data points are required including vehicle speed, driver seat belt status, breaking force, and throttle position; however, most EDR devices likely are capable of collecting a much broader range of information. Of particular concern is the possibility of recording GPS data including specific driving patterns, speed, and precise location. As currently designed, most common EDR systems are integrated into the vehicle’s airbag system and record only a few seconds of data; either on a rolling basis (perhaps the last 30 seconds continuously) or as a result of certain specified trigger events (such as airbag deployment or sudden high G forces).

What Is the Data Used for?

Data collected by automotive EDR devices has a number of applications. Some are laudable such as helping to improve vehicle safety systems, roadway designs, or safety laws. Others are of more concern such as the ability of law enforcement to use the data in criminal prosecutions or of insurance carriers to use the data when setting policy rates. As of the writing of this article, only 13 states have laws specifically addressing exactly how automotive EDR data can be accessed and who owns that data. California’s law, enacted several years ago, states that EDR data belongs to the vehicle owner and can only be accessed with that owners consent, under a court order, or for safety statistical compilations where personal data is not also revealed. Proposed federal legislation would provide similar protection on the national level.

Privacy Concerns Abound

Unfortunately, this does not mean that your data is safe; or rather, that you are safe from your data. Many insurance companies are now including language in their standard policies requiring drivers to consent to data collection and while some states have moved to prevent this practice, the legal protections are patchwork at best. In many states, police authorities are equipped with devices capable of reading many types of black boxes on the scene of an accident. Even where neither your local police nor your insurance company can obtain the data at-will, a court can almost certainly subpoena that data for use in a either a civil or criminal trial.

In fact, this has already been done. While a California court ruled on appeal that law enforcement must have a warrant before taking EDR data for use in a criminal proceeding, such use is clearly an option in the state as it is in many others.

Practical Application

It is not hard to imagine situations in which the use of EDR data becomes very troubling for many drivers; even those who generally have nothing to hide. Insurance companies may use data collected after an accident to shift the blame for the incident or even to reduce or deny coverage based on certain factors. If, for example, your EDR reveals that you were not wearing a seatbelt at the time of the crash, it might be argued that you are partly responsible for your injuries and therefore not eligible for a full settlement amount. Something very similar happened to a Michigan politician who was caught in a lie by data from retrieved from the government car he crashed which contradicted his official story of a recent high-profile crash.


As with most types of data, the numbers themselves don’t have any agenda, but, how those numbers are used, and by whom, leaves a lot of questions unanswered. Furthermore, ensuring the validity and accuracy of the EDR data itself has never been adequately addressed. Exactly what the future holds for automotive EDR data will ultimately be decided by legislators, consumers, and the courts, but everyone should keep an eye on this rapidly developing area of law as the implications for establishing liability in an auto accident are potentially enormous.

Do I Need Uninsured Motorist Coverage?

Clients frequently ask me what uninsured motorist coverage means and if it’s something they need to buy with their car insurance policy. In a perfect world, the easy answer would be no. Why pay for insurance coverage for other people who are already required by law to buy their own policies? Unfortunately, the reality in California is somewhat less idyllic. While it is true that California law requires all drivers to maintain sufficient financial responsibility (practically speaking, car insurance), the unfortunate truth is that far too many drivers are on the road without insurance coverage. In fact, as of 2004 -- the last year for which statistics are reported on the State’s insurance portal, just over 14% of California drivers did not have even the minimum insurance coverage required by law.

Many more drivers carry only the state minimums--currently $15,000 per person, $30,000 per incident, a level sufficient to cover only the most minor of accidents. As a result, California drivers are generally advised to carry Uninsured/Underinsured Motorist coverage riders on their car insurance policies. Here is an overview of what each term means and how such coverage can help to protect you and your passengers.
Uninsured Motorist Coverage

Uninsured motorist coverage (UM) is insurance provided by your own insurance company which will pay you, and your passengers, for injuries caused by another at-fault driver who does not themselves have any insurance coverage for the accident in question. In other words, it’s coverage you buy for other people who might hit you. This type of coverage is necessitated by the fact, as noted above, that so many California drivers don’t carry sufficient insurance of their own.

Frustrating as it may be to pay for insurance which is essentially designed to cover someone else’s actions, the benefits often far outweigh the costs. While the cost of obtaining UM insurance varies depending on the amount of coverage, the company providing the policy, and the vehicles or drivers for which coverage is sought, the costs of an accident often greatly exceed any such premiums; frequently to the tune of several thousand dollars.

For example, according to statistics provided by the California DMV, the average cost of a level 1 accident--the least severe accident type on their scale-- is over $12,000; a number that greatly exceeds the usual cost of retaining UM coverage for several years. In other words, a single accident in which your insurance company pays you out of UM coverage is likely to more than make up for what most people spend on such coverage.

Underinsured Motorist Coverage

Underinsured motorist coverage (UIM) is similar to UM coverage except that it steps in even when the other driver has insurance but where that person’s coverage is insufficient to pay for the extent of the damages they cause you. In other words, it’s insurance you buy to cover people who don’t buy enough insurance of their own.

There is one small catch to UIM coverage. The at-fault party’s available insurance is deducted from the amount your company will pay you out of your UIM policy. For example, let’s say that someone hits you and is found at-fault; causing you $30,000 in damages. Let’s further say that this defendant had state minimum coverage of only $15,000. Finally, let’s say that you have chosen to purchase UIM insurance in the amount of $30,000. After the dust settles, you’ll collect $15,000 from the offending party’s insurance carrier (their policy limit) and an additional $15,000 from your own UIM coverage ($30,000 in UIM coverage - $15,000 from the other party), for a grand total of $30,000 in damage compensation.

As this example demonstrates, a driver who did not buy UIM coverage would find themselves left with $15,000 in unpaid expenses as a result of the same accident. As with UM coverage above, the cost of obtaining UIM coverage is usually much less than the cost of covering the other party’s insurance gap out of your own pocket.

Health Insurance is not the same

Many people counter that they have health insurance that will cover the costs of treatment after an accident and ask if this will reduce the incentive to purchase UM and UIM coverage. The answer is a solid NO. Health insurance is not the same thing as accident insurance. Health insurance is not designed to compensate you for the whole of an accident, it only covers your medical expenses. Health insurance will not pay you for lost wages, will not pay to fix your car, and will not cover your passengers, unless they have their own health insurance coverage. Additionally, health insurance is often not comprehensive. Some medical treatments are not covered at all, others are covered only for a limited period of time, and still others are covered only after expensive co-pays and deductibles are met out of pocket.

Having health insurance will help to smooth the recovery process after a car accident, but it does not come close to replacing proper liability insurance in most situations. Don’t gamble with a patchwork of coverage when UM and UIM coverage are so readily available.

They’re required to offer

In California, insurance carriers are required to offer Uninsured and Underinsured motorist coverage with all car insurance policies that they sell in the state. If you need more information about obtaining this kind of coverage for you or your family, we strongly recommend that you contact your insurance carrier immediately for details. Further, if you have been involved in an accident, we can aggressively handle your case so you can recover all that is owed to you; including the claims that may fall under your UM and UIM coverage in your own insurance policy.