My mother was killed in a head on collision and her boyfriend of 35 years was injured on his right side of his body leaving him with broken femur, ribs and pelvis and brain damage and blind on half of left eye. My mother's insurance lapsed and her boyfriend was not licensed. The driver that hit them was drunk and on drugs. He is being convicted but the police report is not done yet. What is the loophole around Prop 213?
The worst has already happened. This is an awful situation and I'm so sorry to hear about it.
It's true that Prop 213 can cause a lot of problems, but in this situation know this: "heirs of an uninsured driver killed in a crash can sue for damages beyond the limits placed by California voters on lawsuits by the uninsured drivers themselves."
In other words, if you're suing on behalf of your mother, Prop 213 is limited or does not apply. In this spot, it's possible the insurance company or companies will try to mess with you before offering policy limits, potentially leading to much better recovery if everything is handled correctly.
A lot of firms, including mine, offer free consultations and will maximize your recovery. It's important you hire someone qualified to handle these issues; I cannot stress that enough.
Who was driving, your mother or boyfriend? Whose car were they in? If the car was owned by your mother, and driven by her, then boyfriend is passenger and isnt subject to Prop 213. if BF was driving and it was his car, then mother was passenger and isnt subject to Prop 213.
if deft is convicted of dui, then Prop 213 doesnt apply.
I am very sorry to hear about the loss of your mother and the injuries sustained to her boyfriend. Whoever you choose to be your attorney (if you do not yet have one), choose a local area personal injury attorney that is experienced and you feel comfortable with. Most offer a free initial consultation. My colleagues have given you some good points to consider, depending upon answers to the questions they have posed, such as who was driving. I assume that the driver of the other car had automobile insurance as your mother's insurance had lapsed. Do not forget that the driver of the other car was drunk and on drugs. Good luck.
I am sorry for your terrible loss.
You need to consult with a personal injury lawyer and/or car accident attorney familiar with Prop 213. My office has handled many such matters. First you need to understand what 213 does, it prevents an uninsured driver from collecting general damages. An injured driver is still entitled to recieve economic damages.
So the situation your family is essentially as follows, if you mother was the driver, Prop. 213 does not apply to the family/heirs bringing an action for wrongful death. So general damages are recoverable along with economic damages.
If your mother's boyfriend was not the driver then Prop 213 is not applicable and he can recover general (pain and suffering) damages and economic damages (medical expense, loss of income, future medical expense, future loss income damage to earning capacity, etc . . .) If he was the driver he can recover his economic damages, which based upon your statement would be considerable.
Finally if the driver of the other was drunk and on drugs punative (punishment enhancement) damages can be recovered. Finally if the drunk driver is convicted of certain felonies attorney's fees and other enhancements may be recoverable.
You should consult with a personal injury attorney.
Sorry for your loss and good luck.
My collegues have covered the subject of Prop 213 well. The main question at this point is does the responsible driver have insurance or assetts or is there some other person or entity that might be held responsible such as an employer or the owner of a vehicle that negligently entrusted the vehicle to the drunk driveror some other person that is responsible for serving the responsible driver alcohol when they knew they would be driving. I handle these types of cases regularly around the state and I am happy to talk to you to explore the situation with you. I'm so sorry for your loss.
No need for a loophole in your unfortunate situtation. The State Supreme Court ruled that Prop. 213 does not apply to heirs suing for wrongful death. Here is a link to an LA Times article from 1999: http://articles.latimes.com/1999/aug/10/news/mn....
Sorry to hear about the loss of your mother and life changing injuries to her longtime boyfriend. Please consult with a lawyer about your rights and the steps you should take.
The other responding attorneys have covered your question very well, so I won't restate what has already been answered.
It's worth mentioning again, however, that if you have not already done so, you need to immediately consult with a licensed attorney to protect any claims that you might have in this matter. The time you have to file your claims before the statute of limitations expires has already begun. Don't stop calling attorney's offices until you've retained someone that you're comfortable working with.
Best of luck to you!
I live and work in California and deal with accidents like yours all the time, so I am happy to answer your question. I'm deeply sorry for your loss to your mother. Pain and suffering won't be an issue if he is convicted of DUI. Moreover, the bigger question here is what is the policy and assets of the defendant? You'll need an aggressive attorney to go after the defendant or any other potential defendants. Determining the amount for pain and suffering is tough to do at the beginning of the caes unless someone has a catastrophic injury, like a lossed limb. For something like what you have described you will need to wait until you have finished treating. Moreover it sounds like the accident is completely the other persons fault so you don't want this case to become a difficult one because of lack of inattention. Our firm does not usually settle cases until the client is 100%. We look at the case as a whole and attempt to figure out what the settlement should be. The insurance company will make you believe that your case is worth very little... Regarding pain and suffering, you need to speak to an experienced attorney that can strategize your case. Just because you were in an accident doesn't mean you have pain and suffering, at least thats what the insurance companies think. Make no doubt about it you have a great case, but you need help from a professional. You are entitled to your medical bills being covered as well.
Do you feel that you are at the same medical condition that you were before the accident? As a basic premise I wouldn't handle your claim by yourself. The attorney you hired can likely refer you to a doctor, if you ask for one, who will see you with no upfront payment! I've done this many times to help my clients out. You should not wait a single day to hire a lawyer, we will advise you on the strategy of your case. 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, but your case definitely needs to be developed further to corroborate your story. The most important thing when building your case are: liability (were you at fault); how bad are your injuries to your body. 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 cases and/or spoken to clients in the Long Beach, CA area.
Its very possible that your case is worth more than the $$$ that the insurance company will offer you by yourself. Make your life easier and call an attorney today, you won't regret it. Most of us give free consultations.
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