Can an undocumented immigrant recover damages in a personal injury action in California?
Yes. If you are here illegally and are injured as a result of someone’s fault, you have similar rights as a United States citizen or a lawful resident to bring a personal injury action and seek damages under California law. While there were some limitations on recovery of damages by undocumented immigrants, both the courts and legislature recently removed those limitations.
A typical personal injury action in California includes several types of damages: 1) medical bills for past treatment; 2) medical bills for future expected treatment; 3) past lost wages; 4) future lost wages or loss of earning capacity; and 5) past and future pain and suffering.
Until recently, a jury could learn that a plaintiff in a personal injury action was an undocumented immigrant if that plaintiff was seeking damages for future lost earnings and lost earning capacity. The immigration status was not admissible into evidence if Plaintiff was only seeking damages for past medical bills or past and future pain and suffering. There was also a dispute as to whether an undocumented immigrant could seek damages for future treatment based on the costs of such treatment in the United States.
However, the courts and legislature recently removed these limitations. First, in Velasquez v. Centrome, Inc. (2015) 233 Cal. App. 4th 1191, the California Court of Appeal held that the plaintiff’s immigration status was irrelevant to the issue of whether he would be eligible to receive future medical treatment. The Court of Appeal explained that where the plaintiff is seeking damages for a future medical procedure, and there is no evidence that the plaintiff’s immigration status will be considered in determining eligibility for that procedure, the plaintiff’s immigration status is inadmissible. Accordingly, the Court of Appeal reversed the trial court’s decision and remanded the matter for a new trial directing the trial court to exclude the evidence of plaintiff’s immigration status.
The Velasquez decision stood for the proposition that where the prejudicial effect resulting from the admission of a person’s immigration status outweighs the probative value, such evidence should be excluded under Evidence Code section 352. The only exception was where the undocumented status would render an immigrant ineligible for future medical treatment not just in the United States, but in any other country.
Shortly after Velasquez, the California Legislature simplified the issue by enacting a law that bars evidence of a person’s immigration status in personal injury actions regardless of whether such evidence is relevant to a determination of future medical eligibility. See Evid. Code § 351.2. On August 17, 2016, the California Legislature added Section 351.2 to the California Evidence Code. Subsection (a) of Section 351.2, which became effective on January 1, 2017, renders a person’s immigration status inadmissible and undiscoverable in all civil actions for personal injury or wrongful death. Thus, because Section 351.2(a) broadly declares that immigration status is never admissible in a personal injury action, the California Legislature effectively extended the Velasquez rule to apply in all personal injury cases, even where the plaintiff is claiming future lost earnings and loss of earning capacity, or where the plaintiff’s
eligibility for a future medical procedure will be impacted by the plaintiff’s undocumented status.
In short, non-citizens and citizens alike can recover similar damages in personal injury actions. Undocumented immigrants can bring suit for injuries they have suffered without worrying that their immigration status will be revealed during the course of the lawsuit. Therefore, if you are an undocumented immigrant who has suffered personal injuries as a result of a car accident, dog bite, dangerous product, or other circumstances due to someone’s fault, your alienage status should not deter you from seeking compensation for your injuries.
What to do after a hit-and-run accident?
A hit-and-run accident is where a driver intentionally flees the scene whiteout providing contact information or rendering aid. If you are a victim of hit-and-run accident, you may feel confused, angry, and frustrated. However, there are some steps that you can take to help you get through this unfortunate situation more smoothly.
1. Call the emergency number
If you need medical assistance, your health and health of people involved in the accident should be an absolute priority. In non-injury accidents, the police officers should still arrive if you notify the dispatcher that the other driver fled the scene. Having a police report on file can help the auto claims process and give you an official document to rely upon later.
2. Gather information
• Get as much information as you can about the car that hit you, including model, make, and license plate number. Jot down any distinguishing characteristics of the vehicle, such as dents, bumper stickers, or damage to the vehicle. If you had a chance to look at the driver, make a note of the physical description of the individual including race, hair color, gender, clothing etc.
• Look for any possible witnesses to the accident and ask for their names and contact information, so you can reach out to them later.
• Write down time and location of the accident.
• Take picturesof the scene if you can do so without putting yourself and others in danger. Take pictures of your car with its damaged parts and especially if it has paint from the other car (it will help you prove that you are not trying to defraud insurance company by providing a false claim).
3. Call your insurance company
Call your insurance company and make a claim using the information that you have already gathered. Often, uninsured motorist coverage from your insurance company covers hit-and-run accidents. There are two parts of uninsured motorist coverage:
• Uninsured motorist bodily injury coverage pays for medical expenses.
• Uninsured motorist property damage covers car repairs.
Check with your insurance company what coverage you have. In some states and depending on coverage, your deductible maybe waived in hit and run claims.
4. Call an Attorney
After contacting the emergency services, one of your first calls should be to a hit and run attorney in California. The legal counsel may be able to start the process of gathering physical evidence and witness statement taken at the time of the crash. The evidence can be used to find the driver at fault or gather necessary information to help the insurance company evaluate potential coverage for the damages.
If the insurance company is requesting a recorded statement as part of its investigation, you should speak to an attorney as the insurance company maybe trying to deny your claim. Your statements can be misinterpreted and used in denying your coverage. Your legal counsel will be able to advise you of your rights in the claims handling process.
Finally, hiring an attorney may increase your odds of settling the case favorably or prevailing at trial.
Gene V. Halavanau, Esq. Law Office of Gene Halavanau
What to do if the homeowner insurance company denies or lowballs your claim?
When buying homeowner insurance, you are paying for peace of mind to protect yourself from a financial disaster. The disaster does not have to come in a form of hurricane or tsunami. A ruptured water pipe can cause tens and even hundreds of thousands of dollars in damages. A small kitchen fire can fill in smoke and make your entire home unlivable. A partial collapse can make the entire structure a total loss. Whatever it is, you turn to your insurance company to restore your property to the condition that it was before, replace your personal property, and get yourself and your family back on track. This is why you set the automatic payment on your credit card to pay insurance premiums. You are happy now that you paid them religiously. You think that this is the insurance company’s chance to perform its part of the promise to help you with the loss and you are ready and eager to accept the assistance. In fact, the insurers have an obligation to act in good faith and try to settle your claim quickly and fairly. Unfortunately, this is not always the case.
Some insurance companies start delaying investigation by assigning multiple adjusters, requesting additional information that has little to do with the claim, and coming up with other excuses to keep money in its pockets. Some retain contractors and experts that are willing to conduct biased investigation to reduce or deny your claim. Other bad faith tactics include failure to communicate promptly, presenting a repair estimate with a number of missing items, applying wrongful depreciation, and interpreting insurance policy provisions in unreasonable manner to avoid paying part or the entire claim. Generally, if the insurance company is knowingly unreasonable in handling your claim, there is a potential for bad faith handling of the claim. And if you don’t know whether the insurance company is reasonable or not, contact an attorney specializing in bad faith insurance litigation to help you determine it.
Let’s say your insurance company is unreasonable and outright fraudulent in handling your claim. What now? The stakes are high, as unlike in contract claims, consequential and punitive damages are available if you can prove bad faith on the part of your insurance company. The insurance company may be on a hook for emotional distress, attorney fees, and punitive damages. So a claim that would cost an insurance company only $30,000 if handled properly can turn into a million dollar jury verdict.
Through my years of experience, I have become accustomed to similar scenarios. In one case, an insurance company denied a claim for water damage claiming the damage resulted from a long-term leak, which is excluded under the policy. The insurance company refused to make repairs. As a result, mold spread throughout the home and forced the policyholders, an 80-year old woman, to move out of her home and into a local motel. Once our team stepped in, and a thorough and un-biased investigation was conducted, the findings revealed that the damage was actually caused by a ruptured pipe, which is covered under the policy. The case was shortly settled for a substantially higher amount than it would have cost the insurance company to make the initial requested repairs. The settlement amount considered the cost of extensive repairs, loss of use, emotional distress, and attorney fees that the policyholder incurred in obtaining her policy benefits.
Insurance is a great product when it works right. While some insurers perform their part of the promise, others try to save money at the expense of their policyholders. If this occurs to you, an experienced attorney should be able to help. Feel free to contact our office for a free evaluation of your case.
Evgeni Halavanau, Esq.
- prior to founding his firm, Mr. Halavanau worked at a firm specializing in bad faith insurance litigation and successfully represented policyholders against insurance giants such as Farmers, State Farm, AAA and other companies.
Do you need an attorney after a car accident?
I am sometimes approached by my friends and clients with a question whether they really need to hire a personal injury lawyer after a car accident. Although I am tempted to say that you need a lawyer in every circumstance to allow my colleagues to have about third of the settlement, the truth is that not every claim requires an attorney.
If you have a serious injury, you should probably retain an attorney. However, if you are involved in an accident which was not your fault and the other driver has low policy limits, revealed by the adjuster, which do not even cover your entire expenses in relation to the accident, including medical bills and lost wages, then you may be successful in handling the claim without an attorney. You may also have a low-impact collision and a visit to your physician reveals that you do not need physical therapy. You can try to settle such claim without an attorney unless you need assistance negotiating your medical bills.
In most circumstances, you will certainly benefit from having a legal professional representing you. Typically, after the accident, an insurance adjuster for the driver who was at fault causing the accident, will contact you to collect some information in relation to the accident. The questions will be concerning circumstances of the accident, property damage, medical bills, and lost time at work. The insurance adjuster will then present an offer in an attempt to avoid litigation. You may even receive a fair offer. But unless the other side clearly accepted liability, you should be careful providing statements to the adjuster. These statements might be incomplete, taken out of context, or be harmful to your case at a later date. The adjusters may sound nice and sympathetic, but often their ultimate goal is to diminish your damages and avoid or minimize the potential payout. The industry term is that the insurance company will try to “low ball” you and pay you less than you deserve.
In addition, not everyone is able to afford paying premium for health insurance. In cases of soft tissue injuries which usually cause neck and back pain after the accident, the victims are often reluctant to seek medical help from a doctor, chiropractor, or a physical therapist because victims are afraid to incur medical expenses. You may benefit from having an attorney representing you in this case. Our law firm, for example, has established relationships with a number of medical professionals in different fields who can provide treatment on a lien basis. It means that they will wait until settlement before getting paid for their services. This ensures that the victim of an auto accident has a chance to receive treatment without immediate out-of-pocket expenses.
Another scenario where you will benefit from an attorney is if the person who has injured you has multiple sources of insurance coverage. If the person causing accident has multiple insurance policies covering the accident or is an employee of a business potentially liable for the accident, this information is usually not easily discovered. Your own insurance company may also cover all or part of your expenses if the party causing the accident has no insurance or is underinsured.
Whether you decide to retain an attorney or not, you should seriously consider to be thoroughly checked out by a physician following an accident. Injuries that may seem minor at first can develop into serious conditions. Don’t be your own doctor and let the professional tell you that you are okay.
GM Issues Another Recall for 5 Different Defects in 2,7 Million Vehicles
Detroit, MI: Another massive GM Recall has been announced by General Motors Co, this time involving almost 3 million vehicles globally. The recall has been issued to fix five separate safety problems that have allegedly caused injuries and resulted of hundreds of complaints being filed. These recalls are the latest of 24 separate recalls GM has issued so far this year, totally some 12,8 million vehicles worldwide,11,2 million in the US. Additionally, 140,067 new Chevrolet Malibus are included in the recall for brake issues, USA Today reports.
GM reportedly considers the defects serious enough to warrant letters being sent by overnight delivers to vehicle owners, advising them to have the vehicles taken- not driven, into a dealership for inspection and repair if required, according to USA Today.
GM is currently facing investigations by US safety regulators, Congress, the Department of Justice, the U.S. Securities and Exchange Commission and several states for its handling of the now infamous defective ignition switch recall, stemming from a defect which GM engineers first discovered in 2001. The automaker has come under stern criticism for allegedly delaying a recall of the affected vehicles.
The ignition defect has also caused at least 31 crashes. Documents released by GM in early March revealed that the automaker knew about the ignition problem as early as 2001, when the Ion was under development. Four alleged GM recall deaths were in 2004 Ions and five in Cobalts. Consequently, some car crashes are being newly investigated (including one in Canada).
If You Are in a Car Accident and Do Not Have Insurance
WHAT IF THE OTHER DRIVER CAUSED THE ACCIDENT?
I recently No_Insurancehad a few clients who were injured as a result of an accident caused by another driver. The clients unfortunately did not have insurance. Some forgot to update credit card information with the insurer, some forgot to make a payment to keep the insurance policy valid, and some simply had to feed the family.
No payments for pain and suffering
If you are temporarily uninsured and under no fault of your own and another driver causes you harm, under California law you cannot collect for pain and suffering. It means that you will still be able to recover property damage to your vehicle and medical bills, but none for the pain and suffering while recovering from your injuries. When we think of a soft tissue injury requiring minimal treatment, the consequence may not seem severe. However, the same rule applies to serious injuries that may take years to heal and cause permanent effect to an individual’s health.
Penalties driving without car insurance
Insurance companies are obligated to report to DMV when the coverage is terminated. If and when your insurer notifies the DMV that the company no longer insures your case, you may be subject to many penalties, including driver’s license suspension, vehicle registration suspension, and fines and reinstatement fees. If you are involved in an accident with no fault of your own, DMV may also find out about the lapse in your coverage because of a mandatory accident reporting requirement for all accidents with property damage exceeding $750.
WHAT IF YOU CAUSE THE ACCIDENT?
In addition, if you drive uninsured and at least partially at fault causing an accident, you are financially fully or partially responsible for damages and injuries that occur. It can have devastating financial consequence. While minimum insurance limit required by California law is $15,000 per person and $30,000 per accident, a driver at fault is still personally liable for any excess damages above the policy limit. Thus, if you want to protect your personal assets and assets of your family, you should consider having higher liability limits.
Please take 10 minutes of your time, call your insurance broker, log in to your insurance policy account and make sure that you have a valid coverage with sufficient limits. Drive safely.