July

This week’s question comes from Karen in the East Bay, who writes:

Q: “Chris, I need your advice. I took my car to a neighborhood car wash. While I was going through the wash, the car behind me accelerated and rear-ended my car. At the time, I was reaching for papers in the glove compartment. The force from the collision, while not great, was enough to shove my head into the dashboard. I ended up with a nasty gash above my eye that required stitches and may leave a permanent scar. I also suffered a neck injury, which hopefully will heal through physical therapy. I don’t know how the driver of the car behind me hit me. It might not matter. He doesn’t have car insurance. The car wash owner claims he has no responsibility because there was nothing wrong with the car wash’s machinery. My friends joke that I got into a collision inside a car wash. I am not laughing. Incredibly, I am already looking at more than $10,000 in hospital and medical bills. What should I do?”

A: Karen, I am sorry to learn of your injuries and how others have reacted. Often, an accident that can appear to some as only having caused a minor injury can actually have resulted in a significant injury.

At the outset, is there a police report? If not, go to the station nearest the car wash and have them fill one out. Insurance company that handle auto-related claims will want to see a police report.

You should reach out to the car wash’s liability insurance company. The manager should be able to give you that contact information. Since the incident occurred on their property, they most likely have medical payments coverage, which helps defray medical bills, regardless of who is at fault, for injuries suffered on the premises. There is no deductible for this coverage. Call now to get this benefit so your credit doesn’t get hurt for unpaid medical bills.

Hopefully you had auto insurance on your vehicle. Auto insurance falls into five basic categories: liability coverage, comprehensive coverage, collision coverage, uninsured/underinsured motorist coverage and medical payments coverage.

Liability insurance covers a driver who causes an accident. Comprehensive insurance covers damage or loss due to a non-accident, such as theft, falling trees and cracked windshields. Neither liability nor comprehensive coverage applies in your situation. However, the other three types of auto insurance, to the extent that your purchased them, are relevant.

Collision insurance repairs or replaces your car if it is damaged in an accident regardless of who is at fault. Your collision policy should cover the damage to your car, minus your deductible. If you get hit by an at-fault driver who has no insurance or inadequate insurance, uninsured/underinsured motorist coverage may pick up the difference to the level of your coverage. Uninsured/underinsured coverage will compensate you for past and future medical expenses, lost wages and your physical and emotional pain and suffering.

If your auto policy includes medical payments insurance, your auto carrier may help pay off some of your outstanding bills. Make sure that you confirm the limits and procedures for receiving reimbursement from your carrier.

Karen, I also suggest you consult with an experienced trial attorney to review your case. The damages you suffered may exceed the various vehicle policies particularly if you need plastic surgery to remove the scar above your eye or your neck requires injections or surgery. The culpability, if any, of the business needs to be evaluated.

Under California Civil Code, Section 1714, “Everyone is responsible, not only for the result of his or her willful acts, but also for any injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person …”

All businesses owe a duty to protect their customers from unreasonable risk of harm or injury. It’s imperative that car washes inform customers — through either clear, visible signage or an attendant — when to enter, stop and place their vehicle into either neutral or park. Believe it or not, we have handled several serious car wash injury cases involving injury to the attendant as well as those involving harm to the drivers. In the wrong combination, cars, water, soap and machinery can be deadly.

A skilled trial lawyer should put the car wash on notice that an investigation is underway and request that all video and photos taken on the date of your injury be preserved. They should also inspect the car wash and develop a clear understanding of how the collision occurred.

This doesn’t require a law degree, just the cost of a car wash. An iPhone or GoPro can record the signage and sequencing. Often, car washes video record their operations. Your attorney should evaluate whether clear warning signs were displayed at drivers’ eye level at the entrance to the car wash. Were the instructions only in English? As we live in a multi-lingual society, the issue of language should be evaluated along with whether there was an attendant stationed near the entrance of the car wash to confirm the driver saw and understood the instructions and put the car in neutral.

We have seen situations where, in a fully automated system, the light said enter before the car in front had cleared the wash. We have also seen situations where the car wash attendant, being distracted, kept waiving a car to keep proceeding forward as the car hit the one in front of it. Likewise, we have seen situations where people feel the bump of the roller and, having left the car in drive, hit the gas (thinking they were breaking) slamming into the car in front of them.

Karen, I hope that you heal quickly. In the meantime, follow the instructions above to best protect and preserve your rights.

This week’s question comes from Mayra B. in the Presidio, who asks:

Q: “I was recently rear-ended by a vehicle while I was stopped at a red traffic light. My car was wrecked and my leg was injured. I thought this would be an easy process as I didn’t do anything wrong. However, when I called my insurance company, they said my policy had lapsed. I was surprised to hear this because I always pay my car insurance on time; however I had recently moved to a new place and had not realized that I had forgotten to pay my insurance premium. After speaking to a lawyer, I found out that I could sue the other driver to get my car repaired, my hospital bills paid, and my time off work paid, but I cannot obtain compensation for my pain and suffering. How is this possible? It was not my fault.”

A: Mayra, thank you for your question. Unfortunately, the information your lawyer gave you is correct. In 1996, California voters passed the Personal Responsibility Act, known as Proposition 213, codified in the California Civil Code Sections 3333.3 & 3333.4.  Prop 213 bars uninsured drivers from recovering for non-economic damages if they were not insured at the time of the collision.

California Civil Code Section 3333.4 states: “in any action to recover damages arising out of the operation or use of a motor vehicle, no person shall recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if . . . [t]he injured person was the owner of a vehicle involved in the accident and the vehicle was not insured as required by the financial responsibility laws of this state.” You may be wondering, “How could this be?”, especially for someone like yourself who only experienced a momentary lapse in insurance coverage. The answer is that Proposition 213 was framed as a law intended to punish drunk drivers and fleeing felons from obtaining compensation for pain and suffering. However, many voters did not realize that the proposition also sandwiched uninsured drivers between the drunk drivers and fleeing felons.  

As a result of Prop 213, California law now restricts damages for injured car owners and drivers in three situations: 1) where the driver themselves is convicted of DUI; 2) where the driver owns the vehicle and does not have the state minimum liability insurance at the time of the accident; and 3) when injury is sustained while committing a crime or fleeing from a crime which they are later convicted of as a felony.

Under Prop 213, an uninsured driver can still obtain compensation for special damages. Special damages are items that are quantifiable such as property damage, medical bills, and loss of earnings. However, the law restricts the uninsured driver from obtaining compensation for non-economic damages such as pain and suffering, physical impairment, disfigurement, inconvenience, and emotional distress.

There are some exceptions to the restrictions Prop 213 imposed. For example, a car owner or driver who does not have insurance coverage may recover for their non-economic damages if he/she was operating their employer’s uninsured vehicle, since the responsibility to insure the vehicle falls on the employer, not the employee driver. Another exception allows noneconomic damages when the accident occurs on private property, because state law only requires drivers to have auto liability insurance to drive on public roadways, not on private property.  Prop 213 restrictions will also not apply if a driver borrows a vehicle that does not have insurance coverage, but the driver did have insurance coverage on another car. Lastly, Prop 213 does not apply to a passenger who was injured while riding in an uninsured vehicle. Unfortunately, there is no exception for drivers who were uninsured due to an unintentional lapse in insurance, no matter how brief.

Due to the complexity of this law, it is important you contact a qualified trial lawyer to review the situation to see if one of the other exceptions applies to you.

If you were injured in an accident as a result of someone’s negligence, you still have the right to seek compensation for your economic damages such as your property damage, medical bills and lost wages, even if Prop 213 applies to your case. However the best practice is to make sure that you have insurance on your vehicle. Having vehicle insurance will protect you in the event that you harm someone else in a vehicle accident, but it will also allow you to be fully compensated if you are injured by another driver.