Thats definitely correct that you could receive pain and suffering even though you didn't have insurance. However, the insurance company is going to try to argue otherwise. You are going to need some proof like a police report. Otherwise you might have to file a lawsuit and depose the at fault party. You should hire an attorney so you're not bullied around because all the things that were mentioned should be paid for.! 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
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It must be a DUI conviction under CA Vehicle Code 23152 or 23153 and not a wet reckless conviction. (See Civil Code 3333.4 set forth below for your convenience.) However, if the injuries are significant to catastrophic, there is potentially another way around Prop 213, but the injuries must be significant to catastrophic to warrant the undertaking.
Civil Code 3333.4. (a) Except as provided in subdivision (c), in any action to
recover damages arising out of the operation or use of a motor
vehicle, a person shall not recover non-economic losses to compensate
for pain, suffering, inconvenience, physical impairment,
disfigurement, and other nonpecuniary damages if any of the following
(1) The injured person was at the time of the accident operating
the vehicle in violation of Section 23152 or 23153 of the Vehicle
Code, and was convicted of that offense.
(2) The 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.
(3) The injured person was the operator of a vehicle involved in
the accident and the operator can not establish his or her financial
responsibility as required by the financial responsibility laws of
(b) Except as provided in subdivision (c), an insurer shall not be
liable, directly or indirectly, under a policy of liability or
uninsured motorist insurance to indemnify for non-economic losses of
a person injured as described in subdivision (a).
(c) In the event a person described in paragraph (2) of
subdivision (a) was injured by a motorist who at the time of the
accident was operating his or her vehicle in violation of Section
23152 or 23153 of the Vehicle Code, and was convicted of that
offense, the injured person shall not be barred from recovering
non-economic losses to compensate for pain, suffering, inconvenience,
physical impairment, disfigurement, and other nonpecuniary damages.
This is a legal disclaimer that my advice here are for general purposes only and does not create an attorney-client relationship. Further, my advice is based upon the limited information and facts that have been provided. Additional facts and/or circumstances may materially change or affect the advice that I would provide. Finally, I have not agreed to represent you and anyone else who may read my response. (Sorry for this legal disclaimer, but it is important for your protection and mine. You do not want to think that I am representing you when I have not agreed to do so. In order for me to act as your attorney, we would need to execute a retainer agreement setting for the terms of the relationship.) Thank you for your understanding.
If the other driver is convicted of DUI under V.C. §23152 or §23153, then the injured person is not precluded by Prop 213 from recovering non-economic damages, or pain and suffering.
The other driver must be convicted for that exception to apply. However if 213 were to apply in your matter you can still claim exemplary damages (punitive) in a civil action. If there are significant injuries (life changing) there is a possible loop hole around 213..
As the other attorneys point out correctly, the exception to the rule from Prop 213 requires the conviction of the drunk driver. Another consideration however is the victim's level of involvement in the criminal action. Upon conviction, the court will entertain the issue of restitution. Restitution is part of the sentence for the crime and involves paying damages to the victim. While restitution does not include 'pain&suffering' it does allow for victims to collect itemized damages. Getting a restitution order out of the criminal proceeding made give you an ability to pursue recovery from the insurance company. However, be very careful, signing a "release" with the insurance company to collect on the restitution order as it will likely 'release' the defendant from further liability including the victim's personal injury claims and civil action. Obviously, consulting with a knowledgeable traffic accident attorney would be an appropriate precursor to signing anything from an insurance company. More information may be found at our blog, below.
This response is not meant as legal advice or as a legal opinion. Such advice would be impossible or impractical without additional information and more facts giving rise to the question. A consultation with an attorney is necessary.
Mr. Nguyen is absolutely correct with his recitation of the law concerning this subject. You need a conviction to gain the exception to Civil Code Section 3333.4 limitation on damages. For more information feel free to review our website at www.sjclaw.com.