Car Accidents | Dolan Law Firm

Hit and Run or Uninsured/Underinsured Motorist Insurance Claims

Written By Christopher B. Dolan and Kimberly E. Levy

This week’s question comes from Kate R. from Oakland:

I was rear-ended on the freeway a few days ago and the driver that hit me fled the scene. The police took a report but have not been able to identify the other driver. I ended up in the hospital with some serious injuries. I am not going to be able to go back to work for a few weeks, at least. The bills for my medical care are going to start piling up. I have no idea what to do. Please help.

Thank you for reaching out, Kate. We’re sorry to hear about what happened to you and hope that you make a speedy recovery. Navigating the claim process for a hit and run case can be complicated. The good news is that you may have purchased several types of insurance coverages that can help you through this difficult time.

Medical Payments Coverage (“Med Pay”):
What is it?

Med pay is an optional coverage that is part of your individual car insurance policy. Med pay covers reasonable and necessary medical bills when you (or your passengers) are injured in an accident. Med pay will even cover your reasonably necessary medical expenses if you are injured as a pedestrian or passenger in someone else’s car. This coverage applies regardless of who is at fault for the collision.

How does it work?
There are two ways that med pay typically works:

You go to the medical provider of your choice and the provider bills the med pay directly as if it were health insurance; or
You submit bills and records to your insurance company for reimbursement of paid or outstanding bills.

Why do I need this coverage if I have health insurance?
There are several reasons this coverage is useful even if you have health insurance.

First, health insurance often leaves you to pick up the tab for co-pays and co-insurance amounts. With med pay coverage, you can be reimbursed for these out-of-pocket costs.
Second, med pay enables injured people to seek treatment that would not normally be covered by their health insurance policy, i.e., acupuncture, massage, and other alternative treatments. Finally, med pay allows you to seek a second opinion by a medical provider of your choice which is often beneficial when your health insurance coverage is an HMO plan.

Uninsured/Underinsured Motorist Bodily Injury Coverage (“UM/UIM”):
What is it?

Uninsured/underinsured motorist coverage applies when another driver is at fault for a collision but either has no insurance or not enough insurance to cover the injured person’s medical bills and other damages. Importantly, this coverage also applies in hit and run cases, such as yours, when the identity of the at fault driver cannot be ascertained.

In order to protect yourself against hit and run drivers, uninsured drivers, and drivers carrying the minimum amount of liability insurance (which is $15,000 in California), it is best to make sure you protect yourself with uninsured/underinsured coverage.

How does it work?
With this coverage, your own insurance company covers your losses as if it were the at-fault driver—the insurance company steps into the shoes of the at-fault driver. In a UM/UIM case, you will make a claim against your own insurance company up to the amount of your purchased coverage. In some ways, UM/UIM cases are advantageous. Because you are in a contract with your insurance company, your insurance company has a duty to treat you fairly and regard your interests equally as its own interests. Unfortunately, you will not be entitled to a jury trial on these cases. UM/UIM cases are typically resolved by settlement or through an arbitration process (trial in front of a neutral “judge” agreed upon by the parties).

If you are injured in a hit and run accident, specific rules apply in order to trigger UM coverage.

First, there must have been contact between your vehicle and the hit and run vehicle.
Second, within 24 hours after the accident, it must be reported to the police for the jurisdiction in which the accident happened.
Third, within 30 days of the accident, you must provide your insurance company with a sworn statement that you were injured and that the person causing injury is unknown. Facts explaining the same must be provided in the sworn statement. Typically, a copy of the police report showing hit and run will be sufficient to meet this requirement. These requirements are set forth in California Insurance Code section 11580.2(b)(1) and (2).

Will making a claim increase my insurance premiums?
In California, it is illegal for an insurance company to raise rates when a policyholder brings a claim and was not at fault. (California Insurance Code Section 491). As long as the other driver was the cause of the accident, your premiums should not increase. If there is an increase in the cost of your coverage based on claims activity made necessary by the fault of another, this should be reported to the California Department of Insurance.

Do not concern yourself with the fact that payment is coming from your own insurance company versus the adverse driver or his/her/their insurance company. This is coverage that you have paid for and the insurance company is best equipped to bear the loss. The insurance company is free to seek reimbursement from an uninsured driver should that be feasible.

How long do I have to resolve my case?
Generally, in a UM case, you have two years from the date of the incident to either settle your claim or make a “demand for arbitration” – a process where you formally notify your insurance company that you would like to resolve your case by arbitration. Your insurance company has an obligation to keep you informed of these deadlines and requirements throughout the process.

So often, we think of insurance as a means to protect our assets and property. It is equally important, however, to remember to protect yourself against uninsured and underinsured motorists who may cause you harm. Review your insurance policy to see if you have the applicable coverage.

Written By: Christopher Dolan and Megan Irish

Alejandro C. from Sunset writes: A good friend of mine’s wife got into a really bad car crash, where she broke her leg and got a concussion. The accident was not her fault, she was hit by a drunk driver who ran a red light. It has been almost two years, and she is still not back to normal. She walks with a limp, and she is forgetful and cranky with him and their children. My friend also told me he and his wife have only been intimate a handful of times since the cast was taken off her leg. He is at his wits end and I do not know what to tell him, nor how to be supportive of him through all this. Do you have any advice?

Dear Alejandro: I’m so sorry your friend’s family is going through these horrible injuries, but it is wonderful that you are there for him and want to be as supportive as possible. First, your friend’s spouse, we can call her Jane, has a claim for her personal injuries. She can, within two years, make a claim for her medical bills and lost wages in addition to her pain and suffering against the driver who hit her. Now your friend, we can call him John, has a claim for his loss of consortium against the driver who hurt his spouse. The California Civil Code allows John to make a claim, assuming:

his marriage was valid and lawful at the time of Jane’s injuries,
his spouse suffered a tortious injury,
he suffered a loss of consortium, and
his loss was proximately caused by the tort defendant’s act. John’s loss of consortium claim will be valued based on his loss of his spouse’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support; as well as the loss of the enjoyment of sexual relations and/or the ability to have children.
(In this context “loss” can also mean a change to, or diminished amount of the attributes listed above)

John’s claim would be for both the past loss of these elements in his relationship with his spouse, as well as what he is reasonably certain to suffer in the future. Because of the changes you have mentioned in their relationship, a loss of consortium claim appears reasonable for John to make. In deciding to make this type of claim they would both have to evaluate the loss and make a joint decision if they want to discuss the changes in their relationship with attorneys and potentially a jury. It can be very private and sometimes, despite the validity of the claim, couples elect not to proceed with it. Alternative forces that change the relationship and/or pre-existing issues, if any, would need to be openly discussed with counsel to make a more complete recommendation in proceeding with a loss of consortium claim before any litigation is commenced. It is also important to note, that despite the similarities of the companionship, care, comfort, society etcetera in the relationship between parents and children, a loss of consortium claim is only available to married spouses. Jane and John’s children would not be able to make a claim for the changes in their relationship with their mother because of her injuries.

Now, separate and apart from the legal claims Jane and John may elect to bring, there are many additional resources you can help your friend locate. Throughout the state, and nationally there are numerous support groups for both traumatic brain injury patients and their families. First, your friend can check with his health insurance coverage. The insurance provider’s website may direct him to support groups, literature, or individualized help. John can also look to the county level, as most counties have resources for injured persons. To demonstrate the breadth of options, San Francisco General Hospital as well as many private local hospitals run a Traumatic Brain Injury support group that meets weekly/monthly. The Brain Injury Association of California educates and provide many resources for survivors, caretakers, family, friends and others. As well, the National Alliance of Mental Illness has many resources for brain injury survivors and their families. Many of these resources are available now, despite the pandemic, through video conferencing.

Your friend should evaluate the options and figure out with his spouse, which if any of these groups, organizations and resources may aid them, as this decision is an individual one to be made by your friend and his spouse based on their families’ needs.

As a friend it is wonderful you are there to support him, listen and help when he needs it. We are very sorry for the loss your friend’s family is enduring, and wish him the best in locating resources that will help his family forge their way forward.

***

Disclaimer: The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.

Written By Christopher B. Dolan and Corinne D. Orquiola

This week’s question comes from Angelica H. in Pacific Heights who asks: I was at a complete stop at a red traffic light at the intersection of Market Street and 6th Street, when suddenly and without a warning, the vehicle directly in front of me reversed straight into my vehicle when the light turned green. The forceful impact caused me to crash into the vehicle behind me, leaving me sandwiched in between the two vehicles. The front of my vehicle is destroyed. To make things worse I began to feel excruciating pain in my right wrist, and it became swollen immediately after the impact. This is my first car accident, and I don’t know where to begin. I exchanged information with the other drivers and gave a statement to the reporting police officer. All I know is that my car is undriveable and I have a mounting pile of medical bills that I have not been able to pay since I had to take time off work after my wrist surgery. I realize that this is not a typical car accident, but is there anything I can do to recover for my medical bills, lost wages, and pain and suffering?

Dear Angelica: The short answer is yes, you may seek compensation for the economic and non-economic damages you suffered as a result of this collision. You did the right thing exchanging information with other drivers. After a car accident, it is very important to obtain the other driver’s information which includes:

Full Name
License Plate
Car Insurance Information

It is also important to obtain a copy of the police report and to take pictures of your injuries, the property damage, and the accident scene itself to give context.

Under California Vehicle Code (CVC) section 21451 (a), a driver facing a circular green signal, “…shall proceed straight through or turn right or left or make a U-turn unless a sign prohibits a U-turn.” Furthermore, CVC 22106 states that, “No person shall start a vehicle stopped, standing, or parked on a highway, nor shall any person back a vehicle on a highway until such movement can be made with reasonable safety.”

In your case, the driver violated these two sections because they failed to proceed straight through the intersection as mandated by CVC 21451(a). Second, they did not start the vehicle from a stop with reasonable safety because they did not notice that the vehicle was in reverse gear. Clearly, they were operating the vehicle negligently.

If you were injured in a car accident because of another’s negligent driving, you have the right to seek compensation for your economic and non-economic damages. Economic damages include tangible losses that can be easily calculated such as medical expenses, lost wages, and property damage. In regard to the medical expenses you have incurred, you are entitled to recover the amount paid by your health insurance as well as any out-of-pocket expenses. For this reason, it is important to keep copies of your medical expenses, including but not limited to:

medical bills
receipts for pain medication, and
receipts for any medical devices you had to purchase as a result of the accident.

Similarly, you will want to gather information to support your loss of wages claim such as pay stubs or a letter from your employer confirming the dates you missed from work as a result of this collision.

Non-economic damages are more difficult to quantify as those damages relate to the types of harm that do not come with a receipt. Under California Jury instruction 3905A, you may recover for non-economic damages which include things like pain and suffering, physical impairment, disfigurement, grief, anxiety, humiliation, inconvenience and emotional distress. Be mindful of how your life has changed since the accident and take note of activities you are unable to do as a result of your injury as they will form part of your non-economic claim.

We have handled numerous cases in which individuals have suffered bodily injuries due car accidents. However, this column does not constitute legal advice and it is important that you consult with an experienced trial lawyer as soon as possible, especially if you suffered personal injuries.

Written By: Christopher B. Dolan and Megan Irish

Kara from San Francisco writes:
I’m so frustrated by the attitudes of drivers on the road these days, what are people thinking? It seems like people are zooming past, zigzagging in and out of the lanes, and just going too fast. Don’t people know it’s dangerous to drive like that?

Dear Kara: You are right and the statistics are supporting your observations. People are driving faster and more erratically. Following several years of declining fatalities, the pandemic has killed in more ways than just the virus. When people were ordered to stay at home and shelter in place, many did.

Overall, the National Safety Council’s numbers are on target to show that 13% less miles were driven in 2020 as compared to 2019; that is clear evidence of many Californians’ abiding by the stay-at-home orders. Nonetheless, despite fewer miles driven, more people died in car crashes in 2020 than in 2019.

How is this possible? The simple answer is speeding.

Nationally there were 42,060 traffic collision deaths in 2020 as compared to 39,107 in 2019. Only nine states had fewer deaths in 2020 than in 2019. Of the over 42,000 deaths in the United States, 3,723 of these deaths occurred on California roadways. Many of these lives were lost due to reckless driving and speeding.

The National Safety Council tracks collisions on a national level and breaks down the collisions by state. The California Highway Patrol, Office of Traffic Safety, also tracks traffic collisions within California and analyzes how and why collisions occurred.

Unfortunately, with fewer cars on the roadway, it seems some drivers saw the less crowded roadway as an invitation to speed. Many of those who decided to drive recklessly caused severe collisions with fatalities to themselves and/or others.

Law enforcement made efforts to ticket bad actors, and anecdotally police have related that they stopped more speeders and issued more speeding tickets in 2020 than in years past, but they were unable to stop everyone. For a “standard” speeding ticket, drivers can get a point on their driver’s license and often they can go to traffic school.

But, when a driver is more than a few miles over the speed limit, or has other aggravating factors such as alcohol and driving under the influence, a driver’s actions can be considered “reckless.” California Vehicle Code Section 23103 defines reckless driving as “a person who drives a vehicle upon a highway in a willful or wanton disregard for the safety of persons or property.”

There are severe consequences for reckless driving that will impact a person’s life and finances. For instance, a driver can be sentenced to serve between five and 90 days in county jail. The fines can be up to $1,000 (CVC 23103(c)), and a conviction would also get them two points on their DMV record.

A reckless driving conviction will also drive up drivers’ insurance premiums and their car can be impounded. Retrieving an impounded car is expensive, as some impound yards charge as much as a $125 for the tow, a hundred or more in “release fees” and daily storage fees on top of that. Additionally, a driver’s license can be revoked by the DMV for up to six months, which would interfere with a person’s commute to work, and obligations to family members. Choosing to violate the suspended license would have a whole host of other severe consequences.

The reckless driving charge can be charged as a felony if it causes bodily injury. In addition to the monetary consequence of fines, court fees and increased insurance premiums, such a conviction can lead to anywhere from 16 months to three years in prison. Even if a driver only gets set with a misdemeanor, it will show up on background checks, and can deter a future employer from selecting them for a new job. Reckless driving can have severe and lasting consequences for a driver.

Separate and apart from reckless driving, there is “excessive speeding” which is driving at over 100 mph. Excessive speed can be an infraction under CVC 22348(b) and carries fines up to up to $500. If a driver is going over 30 mph above the freeway speed, or 20 mph on a roadway it can also be a criminal offense. Excessive speeding fines range from $900 for first time offenders to $4,190 for repeat offenders.

A driver’s license can be revoked from 30 days for a first-time offense, or up to a year for repeat offenders. As well, there can be two points added to a driver’s record with the Department of Motor Vehicles and increased insurance premiums.

With all of this one would think that responsible driving should be the rule, not the exception, and yet it often is not. Be safe out there.

Written By Christopher B. Dolan and Jeremy M. Jessup

This week’s question comes from Johanna in Truckee who asks: Every new year there are hordes of new laws that are enacted but I find it difficult to know what they are. Is there any way you can provide some highlights of California’s new laws?

Dear Johanna: Out with the old and in with the new, as the saying goes, and as you pointed out — and that includes a number of new laws that went into effect on January 1st here in California or are going to come into effect shortly. There were hundreds of bills that were signed into law and some that were voted on by the people. A number of these will not start until later this year, such as being prohibited from buying more than one semiautomatic rifle in a 30-day period. Some may begin even later, like a flavored-tobacco ban that was set to go into effect on the 1st, probably will not be adopted until some time in 2022.

Here are some of the laws that have gone or are going into effect for 2021:

Additional penalties for texting and driving

It’s already the law that you must use hands free devices while driving, whether you’re talking or texting. Now the punishment is getting stricter. Two convictions in 36 months will add a point to your record starting in July 2021.

Hot car rules

It’s already against the law to leave a child under 6 in a car unattended. Now those who try to help are protected from civil or criminal liability for property damage or trespassing if they break into the car to rescue the child.

Minimum wage

Starting January 1s California’s minimum wage is $14 at companies with 26 or more employees and $13 at companies smaller than that. This is a $1 increase from last year’s hourly minimum. Some cities, like Palo Alto, Sonoma and Mountain View have already increased their minimum wages to $15 or more this year.

Expansion of paid family-leave benefits

Family-leave benefits for nearly six million residents have been expanded. In addition, Californians who work for an employer with at least five employees are included in job protection benefits. The new law also expands on the potential reasons for taking leave, making it possible for workers affected by COVID-19 to take time off to care for a parent, sibling or grandchild.

Transgender protections

The Transgender Respect, Agency and Dignity Act allows incarcerated transgender, gender-nonconforming and intersex individuals to be housed and searched according to their gender identity.

Workplace COVID-19 protections

The new law requires employers to take specific actions, like written notifications to employees, within one business day of a potential exposure to COVID-19 in the workplace. The notification must be written in English and another language, if applicable. This law does have a sunset provision, which is the end of 2023.

Inmate Firefighters

After a devastating fire season, when many inmate firefighters were released early because of the pandemic, prisoner firefighting crews served a crucial role; a new law will now allow nonviolent offenders to petition to get their records expunged and to use their training to gain employment as firefighters. Previously, inmates were precluded because of their criminal records from becoming firefighters upon release.

Parolees’ right to vote

Voters passed Proposition 17 in the November election, which restores felons’ right to vote after the completion of their sentence.

Youth criminal justice reforms

Starting in July, the state will be phasing out juvenile prisons. In addition, a new law prevents kids who are acting out in school from being referred to probation programs or becoming a ward of the court; instead, they’ll be referred to community support services. Finally, it will become easier for minors in police custody to get legal counsel before being questioned.

The three remaining state youth facilities will no longer accept newly convicted youth after July 2021. The state will be transferring the responsibility of the convicted youth back to the counties.

Student loan borrowers

Effective July 2021 will be Assembly Bill 376 which offers new protections for student loan borrowers and makes it harder for lenders to take advantage of people who may not know all their rights or how to navigate the system.

Demilitarizing police uniforms

Law enforcement will no longer be allowed to wear uniforms that have camouflage or otherwise resemble military uniforms. This law does not apply to members of various tactical response teams, such as SWAT, nor does it apply to the Department of Fish and Wildlife.

Bans on certain police restraint tactics

AB 1196 eliminates the use of any chokehold or carotid restraint technique by law enforcement. The bill prohibits any state or local law enforcement agency, including campus police, from authorizing the use of a carotid restraint or chokehold. The bill defines a chokehold as any defensive tactic involving direct pressure applied to a person’s trachea. It also defines a, “carotid restraint,” as any restraint, hold, or other defensive tactic that applies pressure to the sides of a person’s neck, which involves a substantial risk of restricting blood flow, and that may render the person unconscious.

Written By: Christopher B. Dolan and Emile A. Davis

This week’s question comes from William B. in Berkeley who asks: On the news I heard about a truck that collided with a group of cyclists. It was horrendous. Some cyclists were terribly injured and one even died. I realize, as a cyclist, how vulnerable we cyclists are, even when we are being cautious and aware. What protections do we have if a truck takes us out? Anything?

Dear William: Thank you for this important question about trucks, cycle safety and protections. As a cyclist myself, and having represented hundreds of cyclists, I am all too aware of the dangers caused by automobiles in general and the particular issues raised by large trucks. To answer your question, I look to three categories of protection:

1) steps that can be taken, as a cyclist, to avoid accidents with trucks;

2) rules truck drivers must follow to ensure they are alert and aware; and, finally, if the first two fail,

3) remedies and inquiries to seek justice after a collision.

Steps that Cyclists Can Take to Avoid Accidents

The sad truth is that many motorists simply do not see cyclists. It is not merely inattention, but a neurologic phenomenon sometimes called, “filling in.” People’s brains are continuously anticipating what we will see. If an object is obstructed, the brain simply, “fills in,” the missing information with its best guess. There are several steps a cyclist can take to make sure they are actually seen. The easiest is to use anti-camouflage; wear bright colors and reflective gear, have lights and reflectors on a bicycle in order to stand out from the environment and draw attention to yourself. That way the cyclist is seen and the driver does not just, “fill in,” the scenery.

You hit upon perhaps the most important other steps that can be taken – actively being cautious and using situational awareness to know when danger is increasing. These are key to a cyclist’s safety in relation to not only trucks, but traffic in general as well as roadway defects.

Department of Transportation Rules to Keep Truck Drivers Safe and Alert

Often, thankfully, long haul truck drivers are some of the best and most experienced drivers on the road. Additionally truck drivers are subject to many specific rules and regulations designed to make sure they are alert and driving safely. The Federal Department of Transportation, through the FMCSA (Federal Motor Carrier Safety Administration) has regulatory authority over truck drivers. They have a number of safety-based regulations affecting property-carrying vehicles. Initially, the driver must be at least 21 years of age, possess a commercial license and complete a road test. Any driver who has been convicted of a DUI or transporting drugs would be disqualified from employment in this field.

Once a driver is hired, they must record and certify in a log their driving start and end times as well as days off to demonstrate that they have followed basic safety requirements such as:

A driver must have had 10 hours off duty before beginning a shift.
A driver may not drive after a period of 14 consecutive hours until he has had 10 hours off duty.
A driver may drive for a total of 11 hours out of this period of 14 consecutive hours.
A driver may not be on duty for a period of more than 60 hours in 7 consecutive days or 70 hours in 8 consecutive days.

The requirements are even more stringent if the driver is transporting passengers. A complete list of DOT regulations can be found at: https://www.fmcsa.dot.gov/regulations/title49/b/5/3

Recovery if a Collision Does Occur

Unfortunately the above precautions are not always enough and a cyclist is injured by a truck. When that occurs the law provides that a responsible party pay for the damages suffered by the person injured. The law anticipates that trucks have the potential to cause greater harm than typical automobiles. Insurance coverage for trucks, unlike the relatively small insurance policies required by automobiles, are more substantial. Large commercial trucks transporting goods are required to carry a minimum of $750,000 in available insurance. Companies are often also encouraged to carry additional Commercial General Liability insurance to protect their assets, and individuals injured because of the potential trucks have for creating very serious injury, such as the collision that prompted you to write.

To obtain justice for a person injured by a truck a good lawyer will confirm all available insurance policies. They will also investigate to determine if the DOT safety regulations were properly followed. Where there was a failure, it is important to determine if it was merely a failure of the truck driver to do the right thing, or, whether the employer of the driver set expectations or policies that required a driver to push the limits of the regulations and to drive unsafely. Similarly, a company that employs truck drivers may not properly screen or train drivers appropriately for the type of driving they are tasked to do. Employer failures of this type can open the employer up to the potential liability to compensate an injured person beyond the limits of an insurance policy.

As with many activities, if everyone does their part to avoid accidents, they become far less likely. However, they do still occur. If you or someone you know is injured by a truck driver, while cycling or otherwise, consult an attorney such as those at the Dolan Law Firm who are experienced in that area of law.

Written By: Christopher B. Dolan and Cristina Garcia

This week’s question comes from Heather M. in Pacific Heights who asks: “I was riding my bicycle down Oak Street, approaching Franklin Street when I realized my backpack was not closed properly, so I pulled over onto the sidewalk to adjust my backpack. As I jumped back on my bike, I noticed that the pedestrian walking signal was on, so I began riding through the intersection within the marked crosswalk. Suddenly a vehicle came racing down the street and struck me. I was thrown off my bike and fell to the ground. I was transported by ambulance to the hospital. At the hospital, the attending doctor told me that I had broken my left ankle and it would require surgery. The driver is adamant that the collision is my fault because I should not have been riding my bicycle within the crosswalk. But he was driving so fast that even if I would have walked my bike across the street, he would have still struck me because he wouldn’t have had enough time to stop. I realize that maybe I shouldn’t have been riding my bike on the crosswalk, however, is there anything I can do to recover for my medical bills, lost wages and pain and suffering?”

Dear Heather,
I am sorry to hear about your accident. The short answer is yes, you may seek compensation for the economic and non-economic damages you suffered as a result of this collision. Economic damages include items such as property damage, medical bills and lost wages; non-economic damages are commonly known as pain and suffering, physical impairment and inconvenience. However, there are a few hurdles you will need to overcome in order to obtain compensation. Additionally, the compensation may be reduced by what is called, “Comparative Fault,” which will be discussed in more detail below.

As a general rule, adult bicyclists have the same duties and responsibilities as motor vehicle drivers under California Vehicle Code (CVC) section 21200. Therefore, under CVC 21200, it is unlawful to ride a bicycle within a crosswalk. In order to comply with California law and for your own safety, bicyclists should dismount their bicycle and walk it across the street within the marked crosswalk.

Many times, the police report will place the bicyclists at fault because they were riding within the marked crosswalk, which makes it more difficult for individuals to pursue a claim. It is not surprising that the driver of the vehicle is refusing to accept any liability as many insurance companies will rely on the police report and CVC section 21200 to place 100% of the fault on the bicyclist. However, if a serious bicycle accident occurs within a crosswalk, that does not automatically mean that you are precluded from recovering compensation for your injuries.

Based on the limited information you have provided, it appears that at the time you were riding within the crosswalk pedestrians had the right of way. This means that the driver of the vehicle had the responsibility to yield-to-pedestrians. Therefore, had the driver of the vehicle been driving as a reasonable and prudent driver, instead of speeding down the street, he would have had sufficient time to stop. Thus, as a result of his negligence, you suffered personal injuries.

An issue that is likely to be raised is, “Comparative Fault,” also referred to as, “Comparative Negligence.” Comparative Fault is the percentage of fault, if any, that will be assigned to the injured party. Under California law, if the parties are found to share fault, the law requires that the amount of recovery that the injured party is entitled to be reduced by his or her percentage of fault. For example, if the injured person is found to be 30% at fault, their compensation award will be reduced by 30%. This percentage is generally assigned by the driver’s insurance adjuster if the case is settled pre-litigation. However, if your case does not settle before trial, a jury will decide what percentage of fault will be assigned to each party.

If you were injured in a bicycle accident as a result of someone’s negligence, you have the right to seek compensation for your economic and non-economic damages. Due to the complexity of cases involving Comparative Fault, it is important that you contact a qualified and skilled trial lawyer to review the situation and assist you with your claim to ensure that you receive full and just compensation for your injuries.

Written By: Christopher B. Dolan and Taylor French

Beginning July 1, 2021, California drivers will face increased penalties for using handheld devices while operating a motor vehicle. Specifically, a driver convicted of violating California’s laws prohibiting the use of handheld technology will be issued a point on his or her driver’s license under certain circumstances.

In an effort to curb motor vehicle collisions caused by distracted drivers, California has enacted several laws throughout recent years restricting drivers’ use of handheld devices while driving.

In 2008, a California law went into effect prohibiting all drivers from using a handheld wireless phone while operating a motor vehicle. In 2009, California’s Wireless Communications Device Law went into effect, banning drivers from writing, sending, or reading text messages while operating a motor vehicle.

In 2017, California law went a step further, prohibiting drivers from holding a cell phone while driving. The 2017 law made it so that a driver’s phone must be mounted on the windshield or center console rather than in a driver’s hand. The only permissible actions on the device are a finger tap or a single swipe. As of 2017, drivers could no longer use their cell phones while driving to navigate map apps or utilize music apps. A driver 18 years of age or younger, however, is prohibited from driving while using a cell phone, regardless of whether it is being used hands-free.

Currently, the penalty for failing to use hands-free technology while operating a vehicle amounts to 162 dollars – a relatively small fine for an activity that can have fatal consequences for those on the road. Indeed, a violation for driving while using a cell phone carries the lowest base fine for any violation of the Vehicle Code. The only other violation with a comparable penalty is the failure of a bus driver or bus passenger to wear a seatbelt. Moreover, existing law provides that drivers cannot be issued a point on their record for violations of hands free device laws.

California’s new law, however, establishes that a driver convicted of a distracted driving offense will be issued a point on his or her record for each conviction occurring within thirty-six hours of a prior conviction for the same offense. Points are used by the Department of Motor Vehicles to determine whether a driver should be considered a negligent operator.

What is the consequence of being considered a negligent operator? The DMV may suspend or revoke a negligent operator’s driving privilege. Additionally, insurers may increase a driver’s insurance rate depending on the number of points on the driver’s record. So, in effect, drivers who continue to utilize handheld devices while driving will not only face monetary fines, but they could also potentially lose their driving privileges or suffer increased insurance rates.

An individual with four or more points in 12 months, six points in 24 months, or eight points in 36 months is considered a negligent operator. Except for those issued for driving under the influence, points will remain on a driver’s record for a total of 36 months. The Department of Motor Vehicles can issue points on a driver’s record for various violations of the Vehicle Code, including speeding, crossing a double line, or making illegal U-turns.

AB 47, the bill increasing the penalties for distracted driving offenses to include a point on a driver’s record, unanimously passed both the Senate and Assembly this summer and was signed by Governor Gavin Newsom in October. The bill’s author, Assemblymember Tom Daly, explained the need for the increased penalties:

“Driving while using a cell phone is a serious safety issue. In 2017, there were 243,760 distracted driving offenses in California related to cell phone use. During that same year, there were 932 collisions – 31 of which were fatal – where distracted driving due to cell phone use was determined as the factor”

“Currently, driving while using a cell phone results in a small fine (oftentimes less than a parking ticket), but it has not proven to change behavior. For example, a 2016 study found 7.6% of all drivers were seen to be using their phone while driving, compared to 5.4% in 2015. This change marks a 2.2% increase. This bill elevates a distracted driving citation to the same status as other dangerous driving violations, such as speeding or running a red light, helping discourage people from taking part in this dangerous behavior.”

Hopefully, moving forward with the new penalties in effect, drivers will consider the increased ramifications of driving while using a cell phone and turn their focus away from their devices and onto the road and their surroundings. Doing so would serve to not only protect the drivers themselves but all other individuals on the road, decreasing vehicle collisions and saving lives.

Written by: Christopher Dolan and Taylor French

Drivers and bicyclists must coexist in an environment that, at times, can feel too crowded for both.

California has enacted several laws throughout the years in an effort to ensure the safety of those sharing the roads, but none is more important than the Three Feet for Safety Act. In 2013, California’s legislature passed the act, codified as California Vehicle Code section 21760, requiring drivers to give bicyclists a minimum of three feet between the motor vehicle and bicycle when passing in the same direction on a highway. This law became operative on Sept. 16, 2014.

Prior to the act, the California Department of Motor Vehicles had already provided that maintaining three feet between cars and bicycles was the best practice, but the act gave law enforcement the ability to stop a motorist and issue an infraction for failing to keep this distance. An infraction issued for a violation of California Vehicle Code section 21760 results in a minimum fine of $35. If a collision occurs between a car and bicycle causing great bodily injury to the bicyclist, the driver of the car will be issued a $220 fine. In addition to these fines, however, the motorist will also likely incur court fees and/or other administrative fees, which could significantly increase the cost of a violation.

While the act is as straightforward as it sounds — a car may not pass a bicycle traveling in the same direction unless it provides, at a minimum, three feet between the car and the bicycle — there is another important caveat. Subsection D of California Vehicle Code section 21760 states:

(d) “If a driver is unable to pass with three feet of distance due to traffic or roadway conditions, the driver shall slow to a speed that is reasonable and prudent, and may pass only when doing so would not endanger the safety of the operator of the bicycle, taking into account the size and speed of the motor vehicle and bicycle, traffic conditions, weather, visibility, and surface and width of the highway.”

The language of subsection D appears to give some discretion to officers stopping motorists for passing too closely and to drivers when deciding whether to pass a bicyclist. Ultimately, this language also gives judges discretion in issuing fines, should a driver contest the violation.

In addition to an infraction, a violation of California Vehicle Code section 21760 may carry additional ramifications that drivers may not anticipate. For example, if a driver hits and injures a bicyclist in violation of California Vehicle Code section 21760, the driver can be found to be, “negligent per se,” in a civil lawsuit.

Negligence per se is a legal doctrine establishing a presumption of negligence for a violation of a statute, ordinance or regulation. If a defendant in a civil lawsuit is found to have violated a statute, the violation caused the type of harm the statute was designed to protect, and the plaintiff is of the class of people the statute was designed to protect, then the defendant is considered negligent per se. In other words, as a matter of law and as applicable here, a defendant driver who violated California Vehicle Code section 21760 — thereby causing bodily injuries to a bicyclist — could be considered negligent and liable for those injuries and the resulting damages.

So, what can drivers do to ensure they are maintaining at least three feet from bicyclists and to avoid a violation of California Vehicle Code section 21760? Most importantly, if in doubt, drivers should assume they are too close to a bicyclist. Remember, the act provides the minimum distance from a bicyclist that a driver must maintain, but there are certainly situations where three feet is simply not enough space.

Drivers should consider the amount of time it takes to bring a car to a complete stop to avoid hitting a bicyclist. When passing, drivers should consider changing lanes rather than attempting to sneak past bicyclists. And remember, drivers can only pass a bicyclist when it is safe to do so, and risking a bicyclist’s life to save a few extra minutes during one’s commute is never a risk worth taking.

Finally, what can bicyclists do to ensure a safe distance around them? Bicyclists should always make sure they are visible and should never assume a driver will maintain a three-foot minimum distance.

While the act puts the burden on the driver to maintain the three-foot buffer, bicyclists should always make sure to monitor the distance and avoid careless, distracted or inexperienced drivers. Bicyclists can even wear a “Three Feet” bike jersey to remind drivers of the distance requirement. It just may save a life and get the bicyclist some compliments in the process!

This week’s question comes from Sandra in the Upper Haight, who writes:

Q: “Chris, can you settle a matter for me? My best friend and I share a car. She is new to The City and constantly holds her phone while driving to check directions. When she is not doing that, she uses Spotify on her phone to listen to music through the car’s speakers. I love her dearly and don’t want her to cause or be in a crash. I have told her she can’t use the phone in her hand while driving. She claims it’s only illegal to hold the phone to talk or text. Is she right?”

A: Sandra, your friend’s understanding of the law is incorrect.

Before discussing the law, even if your friend’s phone use was legal, it is extremely dangerous. More than 11,000 drivers and passengers are annually killed or injured in traffic collisions involving distracted driving in California. And distracted driving is on the rise. Nearly 13 percent of the state’s drivers were seen talking, texting or using a cellphone in some manner during a study conducted last year by the state Office of Traffic Safety, compared to 9 percent in 2015.

Taking your eye off the road for even a few seconds can result in a devastating crash. It takes 4.6 seconds to read or type the average text message. Just three seconds of driving at 65 mph is far enough to travel 100 yards, or the length of a football field. Most crashes happen with less than 2 seconds of reaction time.

Using a hands-free device — such as speakerphone, an earpiece, ear buds or the car’s communications system — does not make driving safe. In fact, research shows that headset mobile phone use while driving is not substantially safer than handheld use. Drivers need to have their eyes on the road, hands on wheel and mind on driving. It’s a myth that drivers can multitask well. There is no safe way to make a call or text while driving.

Since 2011, it has been illegal to drive a vehicle while using a phone unless also using Bluetooth or other hands-free technology. Furthermore, drivers under the age of 18 may not drive while using a phone — even if it is equipped with a hand-free service. Both statutes contain exceptions for making a call in an emergency.

California had another statute that focused on texting while driving. It was illegal to write, send or read a text while driving unless the driver was using the phone with voice-operated and hands-free technology.

The statute was written before phone applications came into common use. Thus, it was legal to drive while scrolling through the phone’s music playlist, searching for nearby restaurants, viewing status updates on Facebook or reading a Twitter feed. In People v. Spriggs (2014), the appellate court found a driver did not violate California Vehicle Code in accessing and using a navigation application on his phone while driving. The prior text was replaced last year with a new statute that became effective on Jan. 1.

It remains illegal to drive a vehicle while holding and operating a phone (or any type of “electronic wireless communications device”) unless it is “specifically designed and configured to allow voice-operated and hands-free operation, and it is used in that manner while driving.” The broad loophole in state law allowing drivers to access the internet or use applications while holding the phone in their hand, however, has been eliminated.

A driver may use his or her hand to operate a phone while driving only if (1) the phone is mounted on the vehicle’s windshield use in the same manner as state law allows for portable GPS devices to be mounted or is affixed to a vehicle’s dashboard or center console in a manner that does not hinder the driver’s view of the road; and (2) “the driver’s hand is used to activate or deactivate a feature or function of the handheld wireless telephone or wireless communications device with the motion of a single swipe or tap of the driver’s finger.”

Sandra, to comply with the law, your friend needs to buy a bracket and properly mount the phone in the car. Even then, she cannot enter an address into the phone navigation app while driving. She must do this prior to driving or pull over, stop driving and then input the address. Likewise, she cannot actively use Spotify while driving. Instead, she should set her playlist beforehand and let it run.

Finally, even though the new statute closes an important loophole in phone use while driving, it is still best to turn the phone off or put it away while driving. Hundreds of thousands of serious injury crashes occur across America each year due to drivers distracted by calls, emails, texts and increasingly social media and other applications on their phones.