California auto accident uninsured motorist case: Statute of Limitations approaching. What is necessary to toll it?

Asked over 1 year ago - Los Angeles, CA

Since the driver had no insurance and I am going after my own insurance company, would I actually sue the driver? Would I just be able to write a letter to my insurance saying that I want to arbitrate the matter? How would this play out?

The insurance company is the one that told me that the SOL is approaching. If they lowball me or won't help me I will need time to find a lawyer too; but wanted to know how the process works to not get nailed by the SOL.

Additional information

So, what I am taking from some of your opinions (especially Mr. Goldberg's opinion) is the following and I want to ensure that nothing in the insurance policy itself could change this:
1. I can EITHER sue the driver who hit me and doesn't have insurance as we have already determined; OR 2. Make an Unequivocal Demand for Arbitration with MY insurance company under my UIM policy. Correct?
2. All I am trying to do is buy a little more time. I am not done treating yet as a recent MRI reveals that I need surgery on my arm.

By the way, if the insurance company wanted to go after the driver who hit me later for reimbursement, would they still have an opportunity to do so. What would there time limit be?

Attorney answers (9)

  1. Barry P. Goldberg

    Pro

    Contributor Level 13

    5

    Lawyers agree

    Answered . Please take a look at the Article I wrote on this very topic last month. It is VERY tricky to properly preserve the Statute of Limitations at the last minute. Experienced lawyers mess it up for any number of reasons. Do not forget to submit a Declaration under penalty of perjury tegarding workers compensation. A recent case held that without that declaration an unequivocal demand for arbitration has not been made sufficient to satisfy the statute.
    The article "Effectively Preserving The Statute of Limitations in UM/UIM Cases" is in my blog section. Other important info is in my Los Angeles Uninsured Mororist Attorney section.
    www.barrypgoldberg.com
    Good luck

  2. Minh Tri Nguyen

    Contributor Level 10

    3

    Lawyers agree

    Answered . If you are making an Uninsured Motorist claim in California, then most policies require you to file a lawsuit to stop the clock. (Check the language of your policy.) Your insurance company cannot help you file the lawsuit, because it is against their interest; they just provide you the the mandatory statutory and/or policy disclaimers. It's best to get a personal injury lawyer to help you. Most, if not all, personal injury lawyer will offer a free consultation. An honest, straight-forward lawyer can tell you in 15 minutes whether you need a lawyer or not. If not, he/she should be able to give you some general directions as to how to proceed, including providing you with a sample Complaint to stop the SOL and a Demand for Arbitration to start the arbitration process.

    Don't wait until you get too close to the SOL to contact a lawyer either, because that is a red-flag. You may damage your case by not seeking the correct medical attention. As a general rule, you owe a duty to mitigate your damages which mean you need to seek out medical help as soon as possible. If your delay in seeking medical care resulted in additional damages, then it is possible that you may be precluded from being compensated for the additional damage. Further, most lawyers are hesitate to help you if you wait too long to get help, because that means that they must drop everything to help you and put your case ahead of other clients which is not fair to everyone.

    Minh T. Nguyen
    minh@nguyenlawyers.com
    (855) NGUYEN-L[AW]

    This is a legal disclaimer that my advice here are for general purposes only and does not create an attorney-... more
  3. Steven Mark Sweat

    Pro

    Contributor Level 19

    3

    Lawyers agree

    Answered . You must do one of two things: (1) File suit against the at fault driver; or (2) advise your carrier of your demand to arbitrate the claim. Either way, my best advice is to retain an attorney immediately. Even though you are dealing with your own insurance company, uninsured motorist claims are still difficult to present properly and obtain maximum compensation. For more information:
    http://www.victimslawyer.com/uninsured-motorist...

    Nothing in this communication should be construed as creating an attorney client relationship. This is for... more
  4. Richard Andrew Harting

    Pro

    Contributor Level 18

    3

    Lawyers agree

    Answered . Ge tan attorney there are specific things you need to do to preserve your right to pursue an UM case. If you insist on going alone review insurance Code 11580.2 and your insurance policy brochure

  5. Michael Shemtoub

    Contributor Level 17

    2

    Lawyers agree

    Answered . You can toll the statute via a request for uninsured motorist arbitration. But you might not have to. Have you completed all your medical treatment? Do you feel 100%?? If you don't you should still continue to treat until you are better because once you settle thats it! You need to hire an attorney ASAP! There is no upfront cost to hire an attorney. With a case like yours it seems like you have some good facts in order to get a high settlement. The most important thing when building your case are: liability (were you at fault); how bad are your injuries to your body and your property; and of course how high is the at fault person's policy. A lot of these things sound like they are not complete yet in your case so its something that is worth hiring an attorney for in order to get a sense of whether you have a case and what the strategy would be for you to build a strong case! I've handled many of these cases and wouldn't mind speaking to you

    Direct Line to Attorney: 877-427-2752 or Email: Michael@Kingofpersonalinjurylaw.com; Website: www.KingofPi.com... more
  6. David Lee Fiol

    Contributor Level 17

    2

    Lawyers agree

    Answered . I do not believe that in order to succeed with an uninsured motorist arbitration, you are required to sue the negligent driver if you have unequivocal, positive evidence that he is not insured, but in the end I agree with all the other attorneys here in urging you to select and retain before the time to sue that driver has run. Better be safe than sorry. If there is enough time to work with, your lawyer could demand arbitration and see if your insurer agrees to proceed - it might not contest your claim that the uninsured motorist coverage applies.

  7. Jeffrey Mark Adams

    Contributor Level 20

    1

    Lawyer agrees

    Answered . A lawsuit is the best way.

    Personal injury cases only; I'm good at it; you be the Judge! All information provided is for informational and... more
  8. Alan James Brinkmeier

    Contributor Level 20

    Answered . Timely litigation

  9. Samuel Aaron Coffey

    Contributor Level 10

    Answered . File suit.

    Samuel A. Coffey, Esq. ABRAMOWITZ, POMERANTZ & COFFEY, P.A. Belle Terre of Sunrise, Suite 101 7800 W. Oakland... more

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