John D. Winer, San Francisco

A. Who Can Recover?

Anyone who is involved in a motor vehicle accident is entitled to bring a lawsuit against an at-fault driver. In the case of minors or incompetents, the lawsuit must be brought through a guardian appointed by the court, generally a parent of the injured minor. One does not have to be a citizen of California or even the United States to be entitled to bring a lawsuit for personal injuries when there is a driver at fault. This article will focus only on cases against drivers and owners of vehicles. Note that owners of dangerous roadways, product manufacturers, repair shops and many other entities may also be responsible for motor vehicle accidents.

The spouse of the injured plaintiff can also bring their own lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

B. The Fault Requirement.

California is a State that has never adopted no-fault laws. Thus, before anyone recover for damages in a motor vehicle accident, there needs to be a determination that another driver or person or entity was at fault.

C. What If More than One Driver Is at Fault?

Frequently, motor vehicle accidents are caused by a combination of factors and more than one driver may be at fault. In this situation, a lawsuit may be filed against all of the at-fault drivers. Then, during the course of the claim or litigation, the various sides attempt to sort out the percentage of fault attributable to each defendant. Ultimately, if the case does not settle, it may be up to an arbitrator, judge or jury to determine the percentage of fault.

Under California law, a party who is found to be at fault, no matter how small the percentage of fault, is responsible for payment of all of a victim's economic losses including past and future medical bills and past and future wage loss. However, since the passage of Proposition 51, a wrongdoer is only responsible for payment of the plaintiff's pain and suffering damages based on his or her percentage of fault.

Thus, if Ms. Jones is a passenger in a car driven by Mr. Smith who is found to be speeding and collides with a car driven by Mr. Peterson, who has run a red light, then in all likelihood both Mr. Smith and Mr. Peterson will be found to be partially at fault for causing Ms. Jones' injuries. If a judge, arbitrator or jury decides that Mr. Smith is 80% at fault and Mr. Peterson is 20% at fault, then that determination of percentage of fault will effect Ms. Jones' recovery as follows: if Ms. Jones has a total of $100,000 of medical bills and $100,000 of wage loss, she would be entitled to recover the full amount of the bills and wage loss from either defendant — this is called joint and several liability. If an arbitrator, judge or jury awarded Ms. Jones $1,000,000 for pain and suffering damages, then Mr. Peterson would only have to pay $200,000 (20%) for pain and suffering damages and Ms. Jones would have to collect the remaining $800,000 (80%) from Mr. Smith.

D. What If the Plaintiff Is Partially at Fault?

A plaintiff can recover even if he or she is also at fault. California is a comparative negligence State in which a negligent plaintiff can recover damages; however, the monetary recovery is reduced by the amount of his or her fault. For instance, if a court or jury finds that a plaintiff's damages should be valued at $1,000,000, but finds the plaintiff 25% at fault, his or her recovery would be reduced by $250,000 to $750,000.

E. How fault is determined.

i. Fault determined by trier of fact.

Ultimately, the trier of fact, whether it is an arbitrator, judge or jury, determines who is at fault and the percentage of fault. Their decisions are based upon a review of all the facts and evidence in the case which they must apply to the law when deliberating and reaching their decision.

ii. Fault determined by law of negligence.

There are several aspects of the law which jurors will utilize in reaching their decision. First, there is the law of negligence. This is a relatively straightforward standard which states that there is a duty of drivers to act reasonably and prudently when operating a motor vehicle. Failure to act reasonably and prudently is considered negligence.

iii. Fault may be determined by violation of Vehicle Code.

Also, California has an extensive vehicle code which sets out many laws which drivers must obey when operating motor vehicles. There are literally hundreds of laws that could apply to an accident case. These laws would include laws prohibiting driving too fast under the conditions, making an illegal u-turn, passing illegally, running a stop sign or red light, and on and on. If the plaintiff can establish that a defendant violated one or these laws, there will generally be a finding of wrongdoing as long as the violation contributed to the accident and plaintiff's injuries.

F. Special Laws That Apply to Certain Types of Motor Vehicles.

There are special laws in California that regulate the use of specific types of motor vehicles on roadways. Some of these will be listed below.

i. Trucks.

The size of the truck and number of wheels will generally determine whether or not any special rules will apply to truck operators. Large trucks are actually prohibited from utilizing certain stretches of California highways. On other highways, their use is limited to particular lanes. Further, if the truck is actually a tractor-trailer, there are specific regulations as to how it has to be marked, hooked together and how various operations on the truck must perform such as headlights and taillights.

Commercially owned trucks must pass certain inspection standards and federal law regulates the amount of time an operator can drive a truck without resting.

Further, operators of commercial trucks must obtain and maintain special licenses and pass stringent tests before they are allowed to operate a truck unsupervised.

If a violation of any of these statutes or regulations contributed to an accident, it may very well help prove an injured person's case. If the person injured in the accident is a truck driver following all these rules and regulations, it may help the truck driver in his case for damages against another driver.

Under rules of law, a trucking company will almost always be held responsible for the negligent act of the truck driver.

ii. Special rules regarding taxicabs.

Significantly, taxicabs are considered "common carriers," i.e., a company that transports people for money, and because the taxicab companies profit from passengers and passengers are completely dependent upon the taxicab company for their own safety, taxi companies owe passengers the highest duty of care under the law. This means that they must exercise more caution than other motor vehicle operators and even the slightest act of negligence will be found actionable.

Other than following the normal rules of the road, case law has determined that taxicabs owe a passenger a duty to provide safe passage into the taxicab and out of the taxicab. For instance, a taxicab is not allowed to stop in the middle of the road to pick up a passenger so that the passenger has to walk from the curb through a lane of travel to get to the taxicab. Further, the taxicab cannot start until the passenger is safely seated and, hopefully, buckled.

Further, a taxicab operator is not allowed to let a passenger out of the cab in the middle of traffic. The operator has a duty to make sure that the passenger is dropped off at a safe place where the passenger can walk to a curb or driveway without risk of injury.

Under rules of law, a taxicab company will almost always be held responsible for the negligent act of the taxicab driver.

iii. Special rules that apply to buses.

Like taxicabs, buses are considered common carriers; thus, they owe their passengers the highest duty of care under the law. Further, case law has developed which has held that a bus operator has a duty to allow a passenger a safe opportunity to get on the bus and to get to their seat or place of standing before moving the bus forward.

Like taxicab operators, bus operators also have a duty to make sure that a passenger has safely moved off a bus into a place of safety before starting up the bus. The bus operator cannot leave a passenger off in the middle of the street or another dangerous place.

Further, the bus operator must not close the doors on a passenger when the passenger is entering or leaving the bus. Some buses have special equipment which prevents doors closing while a passenger is in the way of the door; however, this equipment frequently fails. In that situation, the bus company would not only be liable for negligent operation of the bus but also negligent maintenance.

Like truck drivers, bus drivers must have special licenses and training to drive a bus. Buses are extraordinarily complicated to drive and inexperienced bus drivers frequently cause accidents.

The bus company will be found responsible for almost any act of negligence of the bus driver.

iv. Special rules for motorcyclists.

With few exceptions, motorcyclists must follow the same rules as other motor vehicle drivers in California.

However, because the law recognizes that it is dangerous for motorcyclists to have to constantly start and stop on highways, much to the chagrin of other drivers, motorcyclists are allowed to pass between vehicles stopped in traffic as long as they can do it safely. Most other vehicle drivers do not realize that these actions are legal and, unfortunately, an occasional case of road rage seriously injures a motorcyclist when a driver intentionally opens a car door into the path of a motorcyclist.

Motorcyclists must have special licenses and pass tests indicating that they can drive a motorcycle reasonably skillfully.

Although motorcycles are more difficult to see, drivers have the same duty to spot a motorcyclist and act safely accordingly as they would any other motor vehicle.

Motorcyclists in California must wear helmets and have headlights that meet specific specifications.

v. Special rules for bicyclists.

A bicyclist is considered a "motor vehicle" when determining whether or not a Vehicle Code statute has been violated. Bicyclists have the same duty as motor vehicle drivers to not speed, stop for stop signs, stop for red lights, not make turns without signaling, etc.

Further, there are special rules which bicyclists must follow: for instance, if they are traveling slower than the speed of traffic, they must be as close to the curb, and not on the sidewalk, as possible. If there is a bike lane, they have to use it except when making a turn and there are very specialized rules for the light and reflectors which must be on any bicycle driven at night. Any new bicycle must be sold with special reflectors and lights mandated by the California Vehicle Code.

Adult bicyclists do not have to wear helmets; however, any child under the age of 18 must wear a helmet when riding a bicycle.

Bicyclists do receive certain protections under the law, such as the fact that motor vehicles must stay out of a bicycle lane except for when the lane is clear and the motor vehicle driver is making a turn.

G. What Evidence Is Considered in Determining Fault?

i. Police officer and police reports.

One of the most common misconceptions about how California cases are decided is the belief by the general public, and many attorneys, that the conclusions of a police officer who investigates an accident are used by a fact finder in determining fault. This is not true. The opinions of fault by the police officer and the police report are not allowed into evidence at the time of trial.

However, insurance companies, when evaluating claims, put a great deal of emphasis on the opinions of the police officer, and the police report is admissible at an arbitration. (Arbitrations are "mini trials" decided by a retired judge or attorney. The decisions of arbitrators may or may not be binding depending on the case.)

Even though the opinions of a police officer as to fault will not come into evidence at the time of a trial, the observations of the police officer, the measurements and evidence that he or she collects at the scene of the trial, and the statements that they take of witnesses, including the drivers, may come into evidence.

ii. Testimony of eye witnesses.

If there is an independent eye witness to an accident, the statements and testimony of this witness will be critical and weighed very heavily if the witness is non-biased, credible and had an opportunity to view important aspects of the accident.

The testimony of the plaintiff and defendant(s) will also be important; however, the jurors are allowed to consider the bias of the witness and, generally, parties are considered to be biased in their own favor.

iii. The physical evidence.

Sometimes fault can be determined simply by the position of the vehicles at their point of rest (i.e., the point where they are finally stopped after the collision), the damage to the vehicles or other physical evidence such as skid marks, debris from the vehicles and location of broken glass.

H. Investigation in Motor Vehicle Cases.

An early and thorough investigation is critical in any motor vehicle case involving a serious injury or what may become a serious injury. A good plaintiff attorney should hire an investigator to immediately go the scene of an accident. Even if the police report is not prepared, it is generally advisable to send a private investigator to the scene to document the state of the accident scene as close in time to possible to the date of the accident. Although this is sometimes difficult without a police report, particularly if the accident victim does not remember how or where the accident happened, but usually there is some clue. Skid marks can fade quickly; debris from the vehicles may be blown away or cleaned up and, in a case where partial fault of the accident may be due to a dangerous condition of public or private property, the condition may quickly be changed by the owner of that property.

Once the police report is obtained, it is then important for the private investigator to go to the scene, sometimes with an expert witness such as an accident reconstruction expert, to check on the accuracy of the police report and fill in some of the critical areas which might not be covered by a police report.

Most police officers hate preparing thorough reports because they feel like they are only doing the bidding of insurance companies and plaintiff's lawyers and, in their reasonable desire to clear an accident quickly so that traffic can resume, they tend to make estimates rather than take actual measurements and, due to their haste, will fail to identify and interview all of the witnesses and make mistakes on the report.

A mistaken measurement of just several inches may make the difference between a plaintiff winning or losing a case when accident reconstruction experts are later hired to help determine fault.

Obviously, a missing eyewitness may provide critical testimony which will turn a case one way or another. Thus, every effort should be made to locate all possible witnesses. In addition, one should never rely on a statement given by a witness to the police. A police officer will usually spend five minutes interviewing a witness while scratching down notes while a private investigator hired by a plaintiff's attorney may want to spend several hours with the witness, clearly going over testimony.

One thing is certain: as soon as the accident is reported by the other driver, the insurance company investigator will be at the scene within hours, if not minutes.

I. How Soon Must a Serious Personal Injury Case Be Brought After an Accident?

Although there are a few exceptions, generally speaking in California a case for serious personal injury must be brought within two years of the date of the accident/incident. In rare cases, that time period is extended to two years from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in medical malpractice cases and cases against public entities, minors have until their 19th birthday to bring a case.

J. The Use of Experts in Determining Fault.

i. A variety of experts may be retained in a motor vehicle accident case.

In many situations, the parties to a lawsuit hire experts to attempt to persuade an arbitrator, judge or jury on the issue of fault. There are many different types of experts who can testify in a motor vehicle case including accident reconstruction experts, mechanical engineers, human factors experts, biomedical accident reconstruction, and biomedical engineers and photogrammery experts.

ii. What will experts rely on to reach opinions?

The accident reconstruction experts witnesses will, to some extent, rely upon the testimony of the witnesses and participants to reach their conclusions regarding the causative factors in an accident; however, they mostly rely upon the physical evidence available for review. For instance, the speed of a vehicle can frequently be determined by the length and nature of skid marks and the nature and extent of motor vehicle damage at impact. The point of impact itself is frequently in dispute and can sometimes be determined by the location of debris, i.e., shattered glass and metal, that is left when the vehicles come to rest.

iii. Use of human factors experts.

Human factors is an area of expertise that most lay people do not know about, yet it can be important in determining fault in a motor vehicle accident case. Human factors experts are generally people who have a combination engineering and psychology background. They can testify to subject matter such as how drugs or drinking can effect a driver's perception and reaction time and how a vehicle driver can be expected to act once he or she perceives a danger.

iv. Use of biomedical and biomechanical engineers.

Although their testimony is usually more significant in proving causation rather than fault, biomedical and biomechanical engineers may be called upon to investigate an accident to determine the forces involved in the accident and how these forces can cause an injury.

v. Photogrammery experts.

In some cases, if the damages warrant it, the parties might hire photogrammery experts who will attempt to create a series of photographs, a film, video or computer animation/simulation which are produced to attempt to simulate the accident and demonstrate to the jurors factors which the parties believe will help them win their case. For instance, when one side is attempting to prove that he or she did not have time to avoid an accident, that side might attempt to produce a film which would demonstrate that the other vehicle flashed in front of the driver and the driver would have had no time to perceive the danger and take appropriate evasive action. These reproductions can be very costly but very useful.

vi. Experts cannot give their opinions as to fault.

Like police officers, expert witnesses cannot give their opinions as to fault. They can only testify to the causative factors of the accident. Only the trier of fact can decide the ultimate fact issues in a case.

K. Insurance Coverage.

i. Insurance of at-fault driver.

Unless the defendant in a case is a large corporation, public entity or an individual with significant assets, insurance coverage becomes particularly important in motor vehicle accident cases. Although a plaintiff can sue an individual or company for more than their insurance coverage, collecting in such a case can sometimes be very difficult. A plaintiff can only recover damages up to the policy limit of an at-fault driver's insurance policy, unless a settlement demand is made for the policy limit and the insurance company unreasonably refuses to pay it. In that situation, the insurance company may be found to be in bad faith and the policy limit will be "opened up" and plaintiff can recover the full amount of a verdict or arbitration award from the at-fault driver's insurance company.

ii. Uninsured and underinsured motorist coverage.

Unfortunately, many people in California are uninsured or carry very minimal insurance; therefore, sometimes a victim has to look to his or her own insurance policy to provide or supplement insurance proceeds. This will result in an uninsured or underinsured motorist case where the plaintiff can proceed against his or her own insurance company up to his or her policy limits if plaintiff can prove the other driver is at fault. The plaintiff's insurance company essentially takes the place of what should have been the uninsured motorist's insurance company.

In the case of an at-fault driver who has insurance coverage, but not enough to cover plaintiff's damages, a plaintiff can proceed against his or her own insurance company to recover the difference between the at-fault driver's policy limit and plaintiff's. For instance, if the at-fault driver had a $100,000 policy, but plaintiff's damages are worth $500,000, and plaintiff had a $300,000 underinsured motorist policy, plaintiff can recover $200,000 (the difference between the at-fault driver's $100,000 policy limit and plaintiff's $300,000 policy limit) from his own insurance company.

In uninsured or underinsured motorist cases, a plaintiff's fault will reduce his or her recovery according to the percentage of fault, just as if plaintiff was suing the other driver.

Uninsured and underinsured motorist normally do not go to trial; rather, they are decided by a binding arbitration.

iii. Plaintiff must have liability insurance to recover general damages.

Under California law, if a driver in an automobile does not have his or her own insurance policy, he or she is not entitled to recover damages for pain and suffering against the other driver.

L. Compensatory Damages in Motor Vehicle Cases.

In a motor vehicle accident case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.

The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.

Pain and suffering is typically the most significant element of a plaintiff's damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.

M. Punitive Damages.

Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant's misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers.

N. Claim for Loss of Consortium.

A plaintiff's spouse can also sue and recover damages for 'loss of consortium." A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse's unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

O. Insurance Companies and Their Attitude Toward Motor Vehicle Cases.

In recent years, insurance carriers have taken a much firmer stance when determining what to offer for settlement in motor vehicle accident cases. Frequently, the insurance carriers will not even offer to pay all of a claimant's medical bills even though their insured is clearly at fault.

In cases involving relatively minor personal injuries, the insurance carriers are willing to spend more money on attorneys, experts and costs taking the case to trial than they are willing to spend on a settlement. The insurance companies know that the plaintiff and his or her attorney cannot afford, for instance, to spend $10,000 on expert costs and witnesses to win a case that may only be worth $5,000. Thus, many car accident victims are unable to receive full compensation for their injuries.

Unfortunately, one of the reasons why this insurance company strategy is working is that jurors in California have become very skeptical of minor car accident cases. It is not uncommon for jurors to not even award the full medical bills of a plaintiff and frequently, they will award little or no money for pain and suffering. Jurors will sometimes even decide in favor of defense in cases of clear liability when the verdict should be in favor of the plaintiff.

Fortunately, this phenomena does not occur in serious accident cases with serious injuries.

P. Factors That Increase the Value of a Motor Vehicle Case.

Probably the single most important factor in determining the value of a motor vehicle case is the extent of the damage to the vehicles. If there is moderate to major property damage to one or both of the vehicles, then insurance adjusters, defense attorneys and, ultimately, arbitrators, judges and juries will be far more likely to believe the injury claim of a plaintiff.

A second important factor is the credibility of a plaintiff. If a plaintiff is likeable and believable, he or she is more likely to receive a favorable result in a motor vehicle accident case.

A third factor is the objective nature of a plaintiff's injury. In medicine, "objective" means an injury that can be seen on x-ray, MRI, CAT scan or some other mechanical diagnostic device or an injury that can be demonstrated during a physician's examination.

Objective evidence of an injury is different than "subjective" complaints which are simply the plaintiff's self-reporting of symptoms and problems to the doctor. Insurance adjusters, defense attorneys and triers of fact are much more likely to make significant awards in cases in which there are objective injuries and are distrustful of subjective complaint.

For instance, Mr. Smith and Mr. Jones could be in the exact same car accident and as a result receive the exact same back pain radiating down a leg for one year. However, Mr. Jones has an MRI which demonstrates a herniated disc pressing against the spinal cord. Mr. Smith has a negative MRI and a normal orthopaedic examination. Even though the accident and symptoms are exactly the same for both plaintiffs, Mr. Jones will be far more likely to receive an adequate settlement or verdict than Mr. Smith.

Further, plaintiffs are likely to be awarded larger damages against corporate defendants than individuals.

Finally, if a plaintiff can establish particularly heinous conduct on the part of another driver, such as drunk driving, plaintiff's award and settlement will likely be increased.

Q. Settlement of a motor vehicle case.

The settlement of a motor vehicle case will depend upon multiple factors including: the clarity of fault, the extent of a plaintiff's injury; the clarity of the relationship between the accident and the plaintiff's injury; the extent of a plaintiff's past medical bills and need of future medical care; the amount of plaintiff's past wage loss and provable future wage loss or loss or earning capacity and the extent of the plaintiff's past and future pain and suffering.

Further, if the case, for instance involves a drunk driver or some other egregious act by the defendant, there is a potential for "punitive," i.e., punishment damages, against the defendant or a higher settlement for compensatory damages because of the risk that jurors will become angry at the defendant and award more money. Under most circumstances, this should increase the settlement value of the case.

Generally speaking, and assuming that there is enough insurance available to fully cover a plaintiff's loss and the plaintiff has an aggressive attorney who is willing to try cases, the case should settle for the predicted jury verdict value of the case. Most cases that are tried in California result in verdicts which are report in weekly magazines read by attorneys. By looking at what jurors awarded in similar cases in similar counties, attorneys for both sides should be able to predict within some measure of reason what a jury will do in a particular case. Once both sides can agree what a jury is likely to award, there is no reason to spend the time and money trying the case and the case should be settled for an amount close to the predicted jury verdict value.

Most motor vehicle accident cases settle — at least 90%; however, the only way for a plaintiff to obtain a full settlement value of the case is for the plaintiff to be willing to try it and for the plaintiff to have an attorney who is willing to try the case. Many attorneys that call themselves plaintiff's attorneys only want to settle cases and have little or no trial experience. These attorneys will either try to have the case settle quickly for less than its value or cave in by the end because they are scared to go to trial. When this occurs, the plaintiff is stuck accepting the defendant's or insurance company's highest offer even if it is wholly inadequate. That is why it is critical for a plaintiff to retain an attorney who is skilled at trial and settlement.

This article was authored by John D. Winer. Winer, McKenna, Burritt & Tillis LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.