Uninsured and Underinsured Motorist Accidents in California
Injured In An Accident With An Uninsured Motorist? You Must Read This
Up to 4.1 million drivers in California are uninsured. ((http://www.insurance-research.org/sites/default/files/downloads/IRC%20UM_NewsRelease_1.pdf)) Many more are driving around with insurance policies with the lowest limits. Half of all accidents in California may involve at least one uninsured or underinsured motorist.
This means, if you were injured in a car accident, there is a good chance the other driver doesn’t have enough insurance to pay for your injures. Or worse: They don’t have any insurance at all.
If you were hit by an uninsured motorist, and are suffering from serious injuries, continue reading the Ultimate California Uninsured/Underinsured Accident Guide below:
What to do when hit by an uninsured motorist in California
So what happens when an uninsured motorist hits you? If you are injured, you need to seek immediate medical attention. The very first concern is your health and medical condition.
Next, you need to figure out if you carry uninsured motorist coverage. And if you do, figure out if it applies. As you will see when you read below, this isn’t always so simple. An experienced attorney should be consulted here.
What is uninsured/underinsured motorist coverage?
Uninsured and Underinsured Motorist Coverage (UM/UIM) is insurance contained in your own auto policy that protects you from accidents involving drivers that don’t have insurance, or do not have enough. It also covers you when you are involved in a hit and run accident.
All insurance companies in California must offer you UM/UIM coverage, unless you opt out in writing. ((California Insurance Code Section §11580.2(a).)) ((California Insurance Code Section §11580.2(b).)) So it is likely you have UM/UIM coverage unless you remember signing a paper stating you are opting out of the coverage. Hopefully you purchased high insurance limits because UM/UIM directly benefits you, your family and passengers.
If the driver that caused your injures does not have insurance, that driver is considered uninsured. So you have two choices. Sue the driver directly and go after their personal assets. However, unless their policy accidentally lapsed, uninsured drivers usually do not have much in the way of assets to go after. So you must file a UM claim against your own policy.
My clients get into underinsured situations often. If you are seriously injured in an accident, require surgery and significant rehabilitation, your case is worth quite a lot. Possibly six figures or even more. California requires minima insurance limits of $15,000/30,000. ((California Insurance Code §11580.1(b).))
So let’s say your case is worth $250,000.00 (a number I’ve just made up for the purpose of this discussion). The driver that hit you has a minimum policy amount required. That driver is underinsured. If you have at least $250,000.00 in UM/UIM coverage, you can collect on the driver’s $15,000 limits, and then go after the rest from your own policy to make up the difference.
What is an uninsured motorist/motor vehicle?
The Insurance Code defines what qualifies as an uninsured motor vehicle ((§11580.2(b).))
- A motor vehicle not covered by a policy of liability insurance.
- This includes an insured vehicle where coverage is denied for whatever reason (such as an excluded driver, a stolen vehicle, etc.)
- A hit and run vehicle, where the owner or driver cannot be identified. There must be some sort of contact, either directly or through some other way, with you or your vehicle.
- An insured vehicle that becomes uninsured because the insurance company goes out of business while your claim is pending.
What is considered an underinsured motor vehicle?
Put simply, the policy limits of the other vehicle/driver is less than your UM/UIM limits, and is inadequate to fully compensate you for your injuries. ((Insurance Code 11580.2(p)(2).))
Collecting on your UM/UIM policy will not raise your rates
Let’s get that out of the way. Many people think filing a claim against their own policy will raise their rates. This is not true. What good is purchasing coverage if you are afraid to use it?
If the accident is not your fault, your insurance company cannot raise your premiums for using this coverage.
Who is covered under a UM/UIM policy?
If you fit into either of the following two categories, you do not even have to be in a vehicle to make a claim on your UM or UIM policy. You can be walking, biking, skateboarding or even sitting on a bench at the park. The only requirement is you must be hit by a motorist.
- The named insured policy holders
- Members of the family of the named insureds, if they live in the same house. This includes in-laws, adopted children, step relationships, but does not include foster children. ((Insurance Code 11580.2(b).))
The following persons are covered under the policy only when using the covered vehicle.
- Anyone driving the covered vehicle with permission of the owner
- Passengers of that vehicle.
Note, the vehicle doesn’t even have to be moving, nor the engine turned on. You can even be outside of the vehicle and pumping gas or checking under the hood. ((Cockin vs. State Farm (1970) 6 Cal.App. 3d, 965.))
What is required to assert a UM/UIM claim in California?
Uninsured Motorist Claims
- You must establish that the at-fault driver/party is uninsured.
- File an SR-1, and obtain an SR-19 from the DMV, setting forth whether or not the other driver was actually insured/uninsured. (Sometimes your insurance company will accept that UM/UIM applies)
- Comply with the two year statute of limitations. You must settle your claim, file a lawsuit against the at fault driver, or serve a formal demand for arbitration within the allowed time. ((California Insurance Code 11580.2(i).))
TRAP: Be very careful here. Failure to follow the procedure here can result in the loss of the claim against the driver as well as your UM policy. The demand for arbitration is very specific and the procedure must be strictly followed. If you file a lawsuit and are suing an uninsured motorist, you must tell your insurance company or you may lose the claim against them. An experienced attorney is highly recommended here.
- You must complete any arbitration within 5 years of the demand to arbitrate.
Underinsured Motorist Claims
In order to file a UIM claim, you must:
- Exhaust underlying 3rd party policy. ((§11580.2(p)(3).)) ((Farmers Insurance Exchange v. Hurley (1999) 76 Cal.App.4th, 797.))
- Obtain some sort of proof the underlying policy Is exhausted.
- Make a timely demand for UIM arbitration. Timely isn’t clearly defined, but the sooner the better. Do not wait 2 years to demand arbitration in a UIM case.
What kind of compensation is available in UM/UIM cases?
Think of the case as being the same as if you were suing the other driver and collecting against their insurance policy.
- Medical bills
- Loss of earnings
- Loss of earning capacity
- Physical pain
- Daily Suffering
- Emotional distress
- Loss of enjoyment of life
- Various out-of-pocket expenses such as household help
- Any other harm caused
Do you need an Uninsured Motorist Accident Attorney
If you are hit by an uninsured motorist, hit and run, or are severely injured and think the other vehicle doesn’t have adequate insurance:
Consult an experience accident attorney right away. As you can see from the article above, there are many traps in UM/UIM cases. Perhaps more traps than with regular cases.
Insurance companies like to play games, deny, and delay. Even your own insurance company. The sooner you get an attorney involved the better. Yes, you need protection even from your own insurance company. And you need the best chance at recovering all the compensation you deserve for your injuries.