Question

Can I make an injury claim and sue if I’m injured in a car accident in California?

Daniel R. Tamez - Personal Injury - General - Super Lawyers

Answered by: Daniel R. Tamez

Gnau & Tamez Law Group, LLP
San Diego, CA
Phone: 619-446-6736
Fax: 619-684-3500

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Answer

Yes. If you sustain injuries in a motor vehicle collision in California, then you can make a claim against the at-fault driver’s insurance. Where that claim is unresolved, the injury victim can also sue the at-fault driver within two years of the date of the injury accident. In some cases, a claim should be pursued first. In other cases, we sometimes recommend filing a lawsuit first. We explain our consideration as well as the “pros and cons” related to the choice whether to sue first or make a claim first. Regardless of claim versus litigation considerations, the most important initial aspect of an injury claim is the victim getting medical care for their injuries. If injured in a car crash, the victim should seek out medical treatment immediately. This will typically result in the victim getting treatment and medication to improve their injuries. Also, these medical records document the injuries sustained and are important evidence of the victim’s claim. Frequently, however people delay seeking treatment for two very bad reasons. Sometimes, people do not seek out medical care because they don’t know how it will be paid. While a valid consideration, injury victims have choices for access to medical care, and frequently these choices are significantly better than the victim may initially believe. The second bad reason is the expectation or belief that the injury will go away like a sports injury. Even though the victim may perceive the injury to be achy muscle pain like a sports injury, frequently the injuries are greater. The problem is that where the victim believes that they will get better in a few days, they end up seeking medical treatment days and sometimes weeks after the accident. Under those circumstances, the insurance company for the at-fault driver will often point to the delay obtaining treatment as evidence that the person was not actually injured in the crash but rather only sought care to get money or after they hired a lawyer. With the ease of access that injury victims have to medical care after hiring us, a delay in obtaining care is avoidable even in the absence of having medical insurance.

In California, an injury victim cannot sue the insurance company for the at-fault driver directly (unless an employee of the insurance company is responsible for causing the crash, see our tweet). Rather, the lawsuit must be initiated against the person or people legally responsible for the accident, and their insurance will indemnify them within the terms and conditions of their coverage. In fact, the existence of insurance to pay for the defendant’s responsibility for the victim’s injuries is hidden from jurors at trial (see, CACI 105). There are two sides to this coin. One argument is that jurors will not award money to the victim if they think that the defendant has to pay for it out of his or her pocket. This concern can be addressed at the initiation of trial. Another argument is that jurors will only award up to the defendant’s insurance policy limits instead of the full amount of the victim’s harms. In many cases that go to trial, a victim does not want a lid on their possible recovery.  

Where the at-fault driver does not have insurance or has insufficient insurance coverage, the injury victim may also make a claim against their own car insurance coverage. This is called an uninsured motorist or underinsured motorist claim. These claims do not typically include a lawsuit against the insurer. Rather, this type of insurance coverage is almost universally subject to an arbitration agreement. Often these claims can be settled, too. When these claims are contested, however the victim seeks a decree of their benefits from an arbitrator. We handle this portion of the injury victim’s claim as well. 

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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