April 7, 2024 | Article by Matt Clark

Who can recover damages in a motor vehicle accident?

Anyone who is involved in a motor vehicle accident is entitled to bring a lawsuit against an at-fault driver, or any other person or entity who may be at fault.

What if more than one driver is at fault?

If multiple drivers are responsible for the accident, the injured person can sue all of the potential defendants. At some point between the settlement demand stage and a settlement and/or verdict, a decision is made as to the relative percentage of fault of each defendant. Each defendant then owes the injured person compensation for the injuries caused by his or her percentage of fault.

What if I am at fault for causing the accident?

If the injured person’s own negligence is the only cause of his or her injuries and the injured person is 100% at fault, the injured person will recover no money in a legal case. However, California is a comparative negligence state and any fault for an injury attributable to the injured person will reduce the injured person’s damages in proportion to that fault. Thus, if you are 50% at fault for your accident, and your damages are 100%, your recovery from the defendant would be only 50%.

How is fault determined?

This is a complicated question and differs from case to case. At the settlement demand stage, i.e. before a lawsuit is filed, attorneys and adjusters generally, at least initially, look to the police report and the conclusions of the investigating officers. If there is no police report, then the people evaluating the case will generally look to whatever physical evidence exists and the statements of the drivers and witnesses. Unfortunately, police reports are frequently inaccurate, and the conclusions of the investigating officers are sometimes wrong. Thus, a police report that is favorable to one side or the other may not be conclusive as to who is at fault and, in fact, the opinions of the police officer are usually not allowed into evidence if the case goes to trial.In serious cases, attorneys hire private investigators and expert witnesses to help prove fault. Ultimately, if the case does not settle, a judge, jury, or arbitrator will decide who is at fault and the relative percentage of fault to the parties.

Can I sue the driver of the vehicle if I am a passenger?

Yes. The passenger in a vehicle, whether driven by a friend, relative or stranger, can sue the driver of the vehicle if the driver is at fault. However, even a passenger can be found to be comparatively negligent for an accident if, for instance, the passenger does not wear a seatbelt or contributes to the cause of the accident. If the passenger is a member of the same household as the driver, there may insurance coverage exclusions that could prevent the passenger from collecting against the driver’s insurance company.

Is there anyone other than the drivers and passengers involved in a motor vehicle collision that I can sue for my damages?

Yes. In some serious personal injury or death cases the drivers involved in a collision will not have enough insurance coverage or assets to fully compensate an accident victim or the victim’s survivors for all of their damages. In these cases it becomes particularly important to perform an investigation to determine if anyone other than the operators of the motor vehicles were also at fault. CHAIN | COHN | CLARK attorneys will do a thorough investigation of a serious personal injury or death case to determine if there are other factors involved in contributing to the accident.

What damages can I recover in a motor vehicle accident?

The injured person is entitled to recover damages for past and future medical treatment, past and future wage loss, damages for pain, suffering and emotional distress, and, if the injured person can establish bad enough conduct on the part of the defendant, punitive damages (i.e. damages intended to punish the defendant). If the injured person dies, his or her survivors are entitled to recover full compensation for their economic losses that result from the injured person’s death, as well as monetary damages which stem from the loss of society, care, and comfort of the decedent.

What if I have no insurance?

If you are a passenger in a motor vehicle or a pedestrian injured by a motor vehicle, the fact that you do not have insurance is irrelevant. However, if you are the driver of a vehicle involved in an accident, even if you are not at fault, under a new California law you are not allowed to recover damages for pain, suffering, and emotional distress. One must have an automobile liability insurance policy to recover those damages.

What if one of the other drivers has no insurance or insufficient insurance to cover the cost of my damages?

An injured plaintiff can attempt to attach the personal assets of an uninsured or underinsured motorist. However, in most of those situations the likelihood of recovery of sufficient monetary damages is not worth the time and cost to pursue the defendant. If the injured person has an uninsured or underinsured motorist policy of their own, then the injured person can recover from their own insurance company the damages caused by an at-fault driver. If the at-fault driver is uninsured, the injured person can recover damages up to his or her own uninsured motorist policy limit. If the at-fault driver has insurance, but not enough to cover the injured person’s damages, then the injured person can seek to recover from their own insurance company the difference between the at-fault driver’s policy limit and the injured person’s own policy limit.

Do I need to retain an attorney if I am injured in a motor vehicle accident?

Usually, but not always. If liability is clear and your injuries are relatively minor, you may be better off attempting to settle the case with an insurance carrier. However, you should always be cautious because what might seem like a minor injury may become more serious. Generally speaking, in cases of difficult or questionable liability and/or cases with serious personal or psychological injuries or death, an accident victim or his or her survivors should retain an attorney who specializes in serious injury and wrongful death cases. A good attorney can usually significantly increase the value of a case by a thorough work up and may be able to identify defendants other than the motor vehicle drivers who can be sued in situations where there is not enough insurance coverage to compensate the plaintiff for all of his or her damages.

How long do I have to bring a motor vehicle accident case?

That depends. If a potential defendant is a public entity, such as the state, county or a city, a claim for personal injuries must be filed with the public entity within six months of the date of your injury. If the defendant is a private entity, such as a business or an individual, a complaint must be filed within one year of the date of the accident for all accidents up to January 1, 2003; and for accidents occurring after January 1, 2003, a complaint must be filed within two years of the date of the accident.

If I am in an auto accident, do I have to stop?

Yes. California law says you must stop, whether the accident involves a pedestrian, a moving car, a parked car or someone’s property. If you drive away, you can be charged with “hit and run”—even if the accident is not your fault. If you hit a parked car, try to find the driver. If you cannot, the law says you may drive away only after you leave behind your name, address and an explanation of the accident – and you must notify the local police or California Highway Patrol either by telephone or in person. You must call the police or the CHP if the accident caused a death or injury. An officer who comes to the scene of the accident will make a report. If an officer does not show up, you must make a written report on a form available at the police department or CHP office.

What should I do if someone is injured?

The law requires you to give reasonable assistance to injured persons. If you are not trained in first aid, do not move someone who is badly hurt; you might make the injury worse. However, you should move someone who is in danger of being hurt worse or killed – even if you do make the injury worse. To avoid additional collisions, try to warn other motorists that an accident occurred. Placing flares on the road, turning on your car’s hazard lights and lifting the engine hood are good ways to warn oncoming traffic. Arrange to get help for any injured persons, and try not to panic.

How can I get help?

As soon as you can get to a telephone, call 911. Explain the situation and give your exact location, so help can arrive quickly. Be sure to mention whether you need an ambulance or a fire engine. Or, flag down a passing car, and ask the driver to go for help. Perhaps the driver will have a cellular phone in the car and can make an emergency call on the spot.

What information should I gather at the accident scene?

Since many records are now confidential under the law, you may not be able to obtain the information you want from the Department of Motor Vehicles (DMV). So be sure to get as much correct and complete information as you can at the scene of the accident. You and the other driver should show each other your driver’s licenses and vehicle registrations. Record:

  • The other driver’s name, address, date of birth, telephone number, driver’s license number and expiration date, and insurance company.
  • The other car’s make, year, model, license plate number and expiration date, and vehicle identification number.
  • The names, addresses, telephone numbers and insurance companies of the other car’s legal and registered owners (if the driver does not own the car).
  • The names, addresses and telephone numbers of any passengers in the other car.
  • The names, addresses and telephone numbers of witnesses to the accident. Ask them to stay and talk to the police. If they insist on leaving, ask them to tell you what they saw and write everything down.
  • The name and badge number of the law officer who comes to the accident scene. Ask the officer where and when you can get a copy of the accident report.
  • A simple diagram of the accident. Draw the positions of both cars before, during and after the accident. If there are skid marks on the road, pace them off. Draw them on the diagram, noting the distance they cover. Mark the positions of any crosswalks, stop signs, traffic lights or street
    lights. If you have a camera with you, take pictures of the scene.

If I think the accident is my fault, should I say so?

Do not volunteer any information about whose fault the accident was. You may think you are in the wrong and then learn that the other driver is as much or more to blame than you are. You should talk to your lawyer before taking the blame. Anything you say to the police or the other driver can be used against you later. Do not agree to pay for damages or sign any paper except a traffic ticket until you check with your lawyer. Be sure to cooperate with the police officer investigating the case. But, stick to the facts.

What if I get a ticket?

Sign it. A ticket has nothing to do with your guilt or innocence. When you sign, you promise to appear in court. If you do not sign the ticket, the police officer can arrest you. While it is okay to sign the ticket, you may want to talk with your attorney before you pay a fine or plead guilty to the charges. Find out if you can attend traffic school instead. If you plead guilty, you may hurt your chances of collecting damages from the other driver later, or you may help the other driver to collect damages from you.

Do I need automobile insurance?

Yes. California law requires every owner of an automobile to have that vehicle insured. If you are in an automobile accident, you must share the name of your insurance

Should I get a physical check-up after the accident?

A check-up may be a good idea for both you and your passengers. You could be injured and not know it right away. At least call your doctor or another health care provider for help in deciding what your needs may be. Your automobile insurance may pay your health care bills.

Do I have to report the accident?

Yes. First, you may need to call the police. Second, report the accident to your insurance company. Ask your agent what forms you should fill out to help you make other necessary reports on the accident. Third, you and the other driver must report the accident to DMV within 10 days if:

  • The damage to either car is more than $500.
  • Anyone is injured or killed in the accident.
  • You may obtain an SR-1 Report of Traffic Accident form from your local DMV office, CHP, police, insurance company, or CHAIN | COHN | CLARK.

Who pays if I am injured or my car is damaged?

That depends on who is at fault, whether you and the other driver have insurance and what kind of insurance you have. There are two major types of insurance “liability” and “collision”.

  • Liability. If you are to blame for an accident, your liability insurance will pay the other driver for property damage and personal injuries up to your policy’s limits. If you are not at fault, the other driver’s liability insurance pays for your car damage and/or personal injuries. Collision. No matter who is at fault, your collision insurance pays for damages to your car (not your medical expenses), minus the policy deductible. Most insurance companies do not offer collision coverage for very old cars.
  • You may have other insurance too. Your health insurance, for example, may pay your medical bills. Also, your automobile insurance may have medical payment coverage. If so, it will pay the cost of your medical treatment up to the medical payment limits. This coverage can be used in place of your other health insurance or in addition to it.

What should I do if the other driver does not have insurance?

If the other driver caused the accident and is not insured, your own policy will pay for your personal injuries – if you have “uninsured motorist” or “medical payments” coverage. If the other driver’s insurance is not enough to pay for all of your damages, your own insurance may pay the difference—if you have “underinsured motorist” coverage. If you do not have these kinds of insurance or if your damages are more than the policy’s limit, you can sue the other driver. However, even if you win the case, you cannot be sure that the other driver has the money to pay. If you have collision insurance, it will pay for damage to your car, no matter who is at fault.

What if I want to make a claim for my injuries?

If the other driver was at fault, you may be entitled to compensation for your personal injuries, pain and suffering, property damage and other expenses, such as lost wages. You should make a claim with the other driver’s insurance company. But, if you are not satisfied with the amount they offer, you may want to sue. If you plan to sue, do not delay. There are time limits for filing various types of claims. Beginning in 1991, you can sue for $5,000 or less in small claims court. An attorney cannot represent you in this court, but you can talk with one beforehand. If you want to sue for a larger amount, you will need your own attorney.