Morgan & Morgan's Complete Guide to California Car Accident Law

Car accidents can devastate your life. They can leave you and your loved ones with broken bones, traumatic injuries, or worse. Even if you escape serious injury, you’re left with a damaged car and the lengthy process of filing an insurance claim and dealing with repair shops and claims adjusters.

Despite what you’ve seen in their ads, insurance companies are not on your side. They aren’t there to give you everything you need—not without a fight. Their adjusters know how to trim numbers off your claim and find ways to give you less than you deserve. That’s why you need a good injury insurance lawyer. Morgan & Morgan knows what insurance companies do, and we will make sure they don’t do it to you.

Starting with a free consultation and evaluation of your claim, Morgan & Morgan helps you navigate the complex insurance claim process. If we take your case, you have an assigned legal team—attorney, paralegal, and legal assistant. Once we take your case, you don’t pay until you win.

Step One: If You’re Involved in an Accident

The only place Morgan & Morgan cannot help you is at the accident scene. If you’re involved in a traffic accident, you’ll have to follow California’s traffic laws. California’s traffic code can be found at Cal. Veh. Code § 20001 et seq.

If you’re involved in an accident with injuries STOP IMMEDIATELY. It doesn’t matter if you caused the injuries or received them. Even if you’re the one who was hurt, and drove away to get help, California law does not allow you to leave the scene of an accident where there are injuries.

·  Call 911. If the injuries are minor, police or California Highway Patrol may not respond.

·  Ask the dispatcher for an incident number. You can get the incident number later, but it is easier if you get it from the dispatcher at the time.

·  On the freeway, CHP asks that you move to the shoulder if it is safe to do so. If the accident occurs in the middle lanes of traffic and it is not safe, do not exit your vehicle until CHP or a tow truck arrives.

·  If you are safely on the shoulder, or on a surface street, you can exchange insurance and contact information with the other driver(s).

·  Take photos of the damage at the scene. Get photos of the other driver’s license plate.

If you have time and can do so safely:

·   Get photos or videos of the area around the crash, showing the lighting, traffic obstacles, road surface, etc.

·   If there are any witnesses, try to get their contact information. At a minimum, get their first and last names.

Things you should never do after an accident:

·   Never flee the scene. We know traffic accidents are frightening, especially if you are partially at fault. However, the penalties for fleeing an injury accident are much more severe than remaining. In addition, you may void your insurance, even if you were not at fault.

·   Never make any statement of fault or blame at the accident scene. We almost automatically say “I’m so sorry,” when we’re involved in a fender-bender, and that’s understandable. Do not say anything more than that. If the other person wants to argue or fight about things, get back in your car and wait for the police.

·   Never agree not to contact police or insurance companies. You should not make such statements, and you should not agree if the other driver suggests them. Mention such comments to your attorney when the time comes.

If you are involved in an accident with a parked vehicle or with property other than a car, you must leave your name and contact information with the owner of the property. If that person cannot be located, you must leave your name and contact information with the property or vehicle. Report the incident to the police or CHP.

Step Two: Immediately After the Accident

Even if you haven’t been injured, you should see a doctor right away. Morgan & Morgan recommends visiting the ER or urgent care the same day. There are several reasons for doing so.

·   Even if the accident was minor, you may have mild shock, which can mask more serious pain. Stories of people discovering broken bones and internal injuries are too common to relate.

·   Some types of injuries, like closed-head trauma, can take hours or even days to develop. You need someone to check for these injuries immediately.

·   An exam right after the accident provides you and your attorney with a baseline for any injuries that develop later. The insurer will not be able to ask why you have pain now when you didn’t get checked out by a doctor at the time.

If you did get transported from the accident, keep any doctor’s reports, invoices, and release notes. Be sure to follow your doctor’s instructions after you’re sent home.

Notify your insurance agent or company immediately. Many companies have a 30-day deadline for reporting accidents, but that isn’t always the case. Report your accident right away.

If the police or CHP did not respond to the accident, but anyone was injured or the damage was more than $750.00, you must report the accident to the Department of Motor Vehicles within 10 days. Don’t assume the other driver will do it, or that one report will be enough. Make your own report. You can do so online at www.dmv.ca.gov.

If the police did respond, there would be a report. You should ask for an incident or report number at the scene. You will not get the actual report. Be sure to get the officer’s name and badge number.

Contacting Your Insurance Company

Drivers in California must have minimum liability insurance. You may have more than that. You must have at least:

·   $15,000 per person bodily injury liability coverage. This pays out for each person injured when a covered driver injures others in an accident.

·   $30,000 per accident bodily injury liability coverage. This pays out an additional amount when a covered driver causes an accident.

·   $5,000 property damage liability coverage. This pays up to the covered amount in property damages.

You are not covered when you cause an accident. Liability insurance only pays when you injure other drivers, passengers, or pedestrians. Many California drivers carry uninsured motorist coverage. This insurance pays the holder if they are hit by an uninsured driver.

Once you notify your insurance company of the accident, they will send you a claims form. This process varies depending on your insurance company. It’s likely that an adjuster will contact you or arrange for an inspection of the damage. The adjuster may contact any witnesses, and ask for documentation of your injuries, expenses, lost wages and time off work, and so on.

Step Three: Beginning the Claims Process

Filing an insurance claim in some states is relatively easy. In these states, called “no-fault” states, each driver bears their own costs for a car accident. Rather than attempting to prove fault, a few states simply require all drivers to have Personal Injury Protection (PIP) coverage. Drivers can only sue for additional insurance when they have used all their PIP coverage.

California is an “at-fault” state. The person who is responsible for causing the accident will pay for all injuries and damage, or rather, their insurance company will. For this reason, how you file your insurance claim is critical to determining how much you can recover in your claim.

Pure Comparative Negligence

Negligence is a legal term that refers to an individual’s fault in causing an injury. To prove negligence in a case, your attorney must show that the other party:

·   Owed you a duty

·   Breached (failed) that duty

·   The breach caused your injury

·   You suffered an actual injury because of the negligence

All drivers owe one another a duty to drive according to traffic laws. When anyone breaks the law, they breach their duty. In most cases, however, both sides are partially at fault. For instance, the other driver may have been speeding and ran a red light; but you were too far out into the intersection and looking in the wrong direction when you began your turn.

California apportions fault under a legal theory called pure comparative negligence. This means that your recovery is reduced by the percentage you are held to be responsible for your own accident. In this example, the other driver may be 80% at fault, but you were still 20% at fault. In that case, you could recover 80% of your damages from the other driver’s insurance but still must pay 20% out of your own pocket.

In some states, they use modified comparative negligence, where drivers cannot recover if they are 50% or 51% at fault. Three states still use contributory negligence where the at-fault driver cannot recover anything.

Determining Fault

When you meet with your legal team at Morgan & Morgan, we’ll review your claim statement and the other documents from the accident. The insurance company determines “fault” by looking at the facts in the case as you describe them and in the police report detailing the accident scene.

For instance, in our example, you say you were making a left turn on a green light when the other driver came speeding through the red light and hit you. Your insurance adjuster will look at the police sketch to see where your car and the other driver’s car were in the intersection. They will review the other driver’s statement to see what that driver said. They check any witness statements and then decide that your story checks out. Your insurance company pays your claim.

Appraisals and Repairs

Your policy may contain an appraisal provision. This lets you or your insurer demand an appraisal if there is a dispute about the amount offered for a total loss of your vehicle. Generally, your insurer will give you the lowest Kelly Blue Book value of your car. If you disagree, the appraisal provision allows you to request an independent appraiser to reassess the value.

Having an attorney on your side during a reappraisal can help you make your case. Morgan & Morgan is familiar with insurance adjusters’ lowballing totaled vehicles, and we want to see you get a fair price even if your car has been destroyed in the crash.

California Insurance Code §758.5 prevents your insurer from requiring that you have your car repaired at a specific repair shop. The insurance company can recommend an auto shop if you ask for a referral.

Under California’s Insurance Code, if you accept the insurance company’s referral, the auto shop must return your vehicle to the condition it was in prior to the accident at no additional cost beyond your insurance premium and deductible (Cal. Ins. Code § 758.5(b)(3).

That’s a normal case. What happens if the insurer disagrees? What if the other driver sues you instead?

Step Four: Pre-Trial

Things don’t always go as smoothly as we hope. Sometimes you are more seriously injured than you realize, and it takes you time to get yourself back on track after an accident. Sometimes you disagree with your insurer’s opinion of your damages. More likely, the other driver claims the accident was your fault, and sues you (and your insurance company) for payment.

If you didn’t have an attorney before, you need one now. Especially if your insurer sues the other driver for a subrogation claim.

Subrogation

If you have comprehensive auto insurance, it might pay for your damages and medical expenses without needing to sue the other driver. However, your insurance company has the right to sue the other driver to get their money back. This is called subrogation. Under the terms of most insurance policies, you must cooperate with your insurer’s subrogation claim. You cannot do anything to jeopardize their subrogation efforts, such as agreeing to release the other driver if they pay your deductible.

In an insurance claim, your insurer pays your expenses, but in a personal injury claim, you can sometimes get more, such as consequential and special damages—lost wages, future medical expenses, and pain and suffering. In a subrogation action, your insurer may try to get that extra money, and keep it for themselves.

When you have your own personal injury attorney before the claim begins, we make sure you get the payout you deserve. Your insurance company should get reimbursement for anything they paid prior to the lawsuit. But you are entitled to the money for your current and future harm.

Your insurer must notify you if they plan to pursue subrogation. Their claim must include recovery of your deductible. Subrogation can reduce the amount of money you recover from a personal injury claim, but California laws will protect you if you have an attorney who knows how to use them.

·   California law limits the money your insurance company can recover from your medical compensation. California Civil Code § 3040 limits their recovery to one-third of your settlement if you have an attorney, and one-half if you do not.

·   The “Made Whole” doctrine states the insurance company can only seek reimbursement after you personally have been made whole. If the at-fault party cannot cover your losses, the insurer cannot make any recovery. Your policy may have a clause that removes this doctrine. Check with your attorney if you are not sure.

·   The Common Fund Doctrine requires insurance companies to deduct some of their recovery to pay your attorney for the work if the insurance company did not have legal representation. This seldom happens as insurance companies typically have entire legal departments.

Statutes of Limitation for Litigation and Subrogation

California has a two-year statute of limitations for car accidents. This means that you have two years from the date of the accident to file a personal injury lawsuit. Two years seems like a lot of time, but in most cases, you must “exhaust your administrative remedies” before you can sue. You should check your policy to see if it has such an exclusion.

The statute of limitations can be extended for situations where you did not realize you were injured. For instance, suppose you hit your head in the accident, but an X-ray and CT scan did not reveal any injuries. Then two years later, you began having serious migraines. Your doctor examined the X-rays and found a small fracture that the ER doctor missed. The statute of limitations begins on the day you first knew, or reasonably should have known, of the injury.

In this case, you could not have known of the injury because the ER doctor cleared you of the injury. It did not emerge until years later. However, because you got a medical exam just after the accident, your attorney can tie the injury to the accident.

Insurance companies must file a subrogation claim within three years of the date payment was made for the injuries suffered in the accident.

Step Five: Litigation

Insurance legal cases seldom end up before a judge or jury. Litigation is expensive for both sides, and your attorney and the insurance company’s legal department would rather avoid it if possible. Instead, once your attorney says you are prepared to go to court, the insurance company begins the settlement process.

At Morgan & Morgan, we prepare your case as if we were going to trial. At each stage of negotiations, we have everything needed to get you the best settlement possible. After you submit the contact form for a case evaluation, Morgan & Morgan will generally call you within 24 hours. Our auto accident agents will review and understand your case. Typically, a client will be assigned a car accident attorney, legal assistant, and paralegal within a week after your car accident case review. Our California car accident lawyers work as efficiently as possible to ensure the case doesn't take longer than necessary.

Investigation

Your attorney and the support staff review all the documents related to your claim. You might be asked to provide more documents, or we will obtain other information that we need. Some of the documents might include:

·   Police reports, photos from the scene, and witness statements and contact information

·   Medical reports, doctor’s statements, and hospital records

·   Your insurance policy and DMV record

·   The insurance adjuster’s report

Your situation determines how your attorney will proceed with the case. For instance, if they have denied your claim or you disagree with their offer, your attorney will review the case with your agent. If you are being sued by the other driver, your attorney will contact their attorney to discuss possible settlement options.

Discovery

The attorneys will exchange information during the settlement negotiations. Sometimes this happens after the actual litigation has started, but it might happen sooner. Your attorney will ask the other lawyers for a statement from their client about what happened, and for their copies of police and medical reports. Your documents will be sent to the opposing attorneys.

This process lets everyone see all the facts in the case, and whether litigation is a realistic option. Although you always have the right to go to trial, your attorney may advise you to settle. At Morgan & Morgan, your best interests are always foremost.

Mediation/Arbitration

In cases of uninsured/underinsured drivers, California law requires arbitration before any litigation can begin. This extra step ensures that insurance companies deal in good faith with the insured driver before forcing them to go through the courts to get reasonable payment.

Mediation is an alternate form of negotiation sometimes used in claims that otherwise might go to court, but do not involve questions of law or fact. Cases that can be mediated under California insurance law include:

·   Extent or amount of damage to a vehicle

·   Whether a car was totaled or can be repaired

·   Value of total loss

·   Method or type of repair

Bad faith, third-party claims, lack of coverage, and other legal issues cannot be mediated.

Depositions and Experts

If it seems the case must go to trial, your attorney will schedule depositions. A deposition is like a witness statement under oath. You and your attorney will determine who should be questioned, or deposed, and the deposition is scheduled. Both attorneys must be present, and the witness must swear to tell the truth. A court reporter makes a transcript of the deposition.

Both attorneys can ask questions of the witness, and the attorneys can object, just like in trial. The difference is that the witness must answer, even after the objection is made. After the deposition, the transcript may be entered into the court record as part of your trial exhibits.

In complex cases, expert witnesses may be needed to explain some parts of the case. Expert witnesses help the jury understand the technical details of the claim. For instance, if part of your case involves a medical condition caused by the accident, you will need a physician to explain how the accident created the condition and the possible long-term effects that require the monetary award you are requesting.

Your attorney will let you know if you need an expert witness. Expert witnesses must be approved by the court and have certain credentials in the field in which they testify. Morgan & Morgan has extensive expert witness lists and will have an expert in the field necessary for your case.

Conclusion

If you’re involved in a motor vehicle accident in California, you need an attorney right away. Even if everything goes smoothly from the start of your claim to receiving your settlement check, you should have legal advice. Someone should review your claim to ensure you’ve filled in all the paperwork correctly and double-check the insurance company’s offer to make sure they gave you everything you deserve.

At Morgan & Morgan, we’re here for you 24/7. Our attorneys, paralegals, and legal assistants can assist you with your claim and ensure you get the help that you need. Contact us online or call 877-667-4265 for immediate assistance.

Find Your Nearest Morgan & Morgan Office in California

Whether you’re seeking legal guidance or need comprehensive support, Morgan & Morgan’s California offices are here for you. Visit us at any of our local branches across the state:

• Irvine, California
• Los Angeles (Downtown and Wilshire locations)
• Riverside
• Sacramento
• San Diego
• San Francisco

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