Proposition 213 (Why Having No Auto Insurance Can Leave You With Less Money in Your Personal Injury Case)

In a personal injury case, the general concept is if you are involved in an accident and are not at fault. The other person is responsible for your “Special Damages” which includes medical bills and wage loss as well as pain and suffering which are referred to “General Damages.” Receiving General Damages for your pain and suffering is very important because otherwise if you only receive a settlement for your lost wages or medical bills. Once the medical providers are paid back for their services, you would end up with very little to show for the weeks, months, or years of pain you endured due to someone else’s negligence. Therefore generally, when you receive a settlement, the bulk of the compensation that goes in our pocket is the amount of the settlement meant to compensate you for your pain and suffering.

However, if you are not covered by active motor vehicle insurance at the time of the car accident, you are NOT entitled to general damages for your pain and suffering which can drastically reduce your final personal injury award. This is because of Proposition 213.(year enacted) This law states that a driver of a vehicle who was injured in an accident by another driver who was not covered by insurance is only entitled to special damages. This law was enacted in order to deter and “punish” those drivers on the road with no insurance coverage.

Therefore, it is extremely important to maintain a minimum of liability insurance coverage at all times and to prevent lapses in coverage. Otherwise, even if you were at a complete stop at a red light and someone rear ends you, but you have no insurance at the time of the accident. You are only entitled to special damages.

It is important to note that Prop 213 only applies to the driver of the vehicle at the time of the accident and not to any passengers in the car. Therefore, if you are a passenger in a vehicle where the driver does not have current motor vehicle insurance, you are still entitled to both special damages and general damages.

If you have any questions, have been involved in an accident, or would like to speak with an attorney. Please contact Gustavo Magana at (408)430-0411.

The Importance of Treatment for your Injuries as Soon as Possible After an Accident:

If you are hurt in a motor vehicle accident due to the negligence of the adverse driver, then you are owed compensation for your pain and suffering as well as medical bills and lost wages. The amount you are owed for your pain and suffering is based upon your injuries, type of treatment required to heal, future treatment costs, how the pain affected your activities of daily life, and other factors.

Although it may seem strange to attach a monetary amount to how the pain you have been forced to endure due to the negligence of another party, in a personal injury case that is your only recourse. Individual cases and injuries by nature of their severity have different case values. For example, an injury involving whiplash and some general neck pain that resolves in a few months with chiropractic treatment is deemed to be worth less than an injury wherein your arm or leg is broken and surgery is needed.

What remains the same in every single personal injury case though, is the need for you as an injured party to seek and receive prompt medical attention for your injuries. A failure to receive medical treatment within the first week or two after a motor vehicle accident is considered a Gap in Treatment by defense adjusters and attorneys. The defense adjuster or attorney will attempt to paint you as a liar and claim you are exaggerating your injuries if you do not receive treatment close to the date of injury. They will argue that if you were really hurt, then you would have seen a Dr. right away and not waited two, three, or four weeks before you finally saw someone to evaluate you. They will also argue that there is no way to prove that you did not hurt yourself at home or work and are just trying to blame your subsequent injuries on the adverse driver.

These arguments are unfair and fail to recognize or acknowledge the fact that not everyone has access to healthcare coverage that will cover expensive medical treatment or procedures. Additionally, many people just do not have the luxury to call in sick to work to see Dr. after Dr. and rest at home while they heal. Costs like rent, car payments, and feeding your family do not go away just because someone else hurt you in an accident. Unfortunately, just because it is not fair that the lack of access to proper healthcare or the ability to take time off of work to see a Dr., does not mean it will not be used against you.

 

This is why it is essential to see a Dr. as soon as possible after you have been hurt in an accident, to prevent any arguments regarding a gap in treatment. If you do not have access to medical treatment or coverage. An attorney who specializes in personal injury can help you by referring you to Dr.’s and other medical providers who will treat you on a lien, which means they will wait until there is a settlement in your case before they get paid. This can help alleviate the burden and hesitation of obtaining medical treatment for fear of not being able to pay for it at the moment. This way, you can continue to meet your monthly costs, work on healing your body, and deal with the fees once a settlement has been reached in your case.

Additionally, it is important to note that every personal injury case is different and that just because you may have a “gap in treatment” this does not mean you do not have a valid claim or case. It is essential to speak to an attorney who can properly advise you on the facts of your case.

If you have any questions about your case or would like to speak with the Law Office of Gustavo Magana regarding your case, please call (408)430-0411.

What Undocumented Clients Should Know About Personal Injury Claims

Many people from immigrant communities are unsure whether or not they can pursue a personal injury claim where they are not at fault if they are undocumented. California Evidence Code 351.2 addresses this concern.

Evidence code 351.2 (a) states: “In a civil action for personal injury or wrongful death, evidence of a persons immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.”

This is an extremely important law for immigrant and undocumented communities because too often, non-citizen victims of an accident (car accident, slip, and fall, dog bite, assault, etc.) have little knowledge as to their rights. The average person may know that they should, in theory, be entitled to compensation for their pain and suffering but they become worried that they will be deported or may face immigration consequences if they enter into civil litigation as a non-citizen. The current xenophobic political climate and frequent ICE raids that have been impacting undocumented communities in California exacerbate this fear.

But, it is essential to know your full rights. As a victim of an accident where you are NOT at fault, you are entitled to fair compensation for your injuries.

Some insurance defense attorneys and adjusters will often raise the issue and question of a person’s immigration status. They do this to intimidate potential claimants with the hope that you will take a low and unfair offer or drop your claim. That is why it is crucial that you know and understand your rights and the protection afforded to you under evidence code §351.2. Additionally, this is why it is essential to have an attorney who is up to date on laws that affect undocumented communities and who know how to protect you in your lawsuit. I represent both undocumented and documented clients, but I maintain a firm stand and refuse to let a defense attorney or adjuster inquire as to my client’s immigration status. Case law in California generally favors this position, but there can be individual cases where immigration status may need to be discussed. That is another reason why it is essential to have an attorney who can fight vigorously for you and prevent any adverse immigration consequences for you.