We received a great comment from a reader yesterday that raises a ton of issues that follow from a small accident where the driver did not have current auto liability insurance.
Here, a licensed insurance defense attorney breaks it down, gives real free legal advice, and enlightens the world on the dark side of Insurance Defense Work. We include links to relevant legal forms, laws, and agencies where we can.
Hi, I had a little fender bender two years back 09/06/09. It was just a scratch on my car and the other car also lost some paints. The accident was so little we decided to finish it there. Since the other driver did not have any license what he claimed to leave at home I just let the guy go (Kind but stupid decision). He did not take any pic but fortunately I took pic of his car and mine. None of us made any police report or notified DMV (damage was not even $300 in any car ).
| When I came home and called my insurance company I found out that my insurance was canceled due to nonpayment. I paid right away and my insurance was reinstated next day. |
After two years the guy is suing me for personal injury with his whole family members who were not with them.
His attorney filed the the complaint on 09/06/11 in CA San Diego county where we both live.
My question is how it will effect my driving license and what should I do?
There is a lot of bad news here. But I would also say that these things always start out sounding worse than they are in the end. I am going to provide detail to such a degree that once you read this, you will understand what is going on, and what you need to do.
I. Drivers License Consequences of Getting Sued For An Accident.
The drivers license consequences of an accident are dealt out by the Department of
Morons and Vultures Department of Motor Vehicles, not by the court. (OK, I’m sorry. that’s not my joke. Got it from an MCLE Video.)
California law requires a driver to report to the Department of Motor Vehicles any accident with an injury, or if there was damage of $750 or more. You are supposed to report the accident on an SR-1 (which can be admissible in court). Lack of a report for 2 years by either driver may indicate there were no injuries or property damage.
However, if the Plaintiffs are able to get a judgment against you in court, your drivers license can be suspended until the judgment is paid in full.
If the DMV discovers that you failed to report the accident, your drivers license will be suspended until you report it on the DMV SR-1 Form. They will expect you to report, even if it is 2 years late.
After reporting, the DMV checks your insurance status for the date of the accident. I would expect your drivers license to be suspended for 6 months for a failure to have valid liability insurance.
There is nothing you can do about that if it happens. You are guilty, unless the Plaintiff’s claims turn out to be bogus 2 years from now.
II. Dealing With The Lawsuit in Court.
Without Valid Auto Liability Insurance on the date of the accident, you have to deal with the case on your own.
Usually, you have 30 days or less from the date you are personally served with a Complaint and Summons to file an “Answer” to the Complaint. The forms for filing a basic Answer in CA are available free on line. As long as you get an Answer filed on time and you show up for court on time, nothing really bad will happen for a long time.
Auto Accident Personal Injury cases are usually heard in the Superior Court for the County where the accident happened in the Civil Division (not criminal). There are 2 parts of a Civil Division – limited and unlimited jurisdiction. “Unlimited” means claims over $25,000, limited means less.
To get details on how the Limited and Unlimited Divisions differ, check the court’s local court rules. Generally, Limited Division cases have shorter deadlines, limits on discovery, etc. (See Form Interrogatories for limited cases). The Plaintiff gets to pick which division the case is heard in (at least at first).
III. Effect of Not Having Auto Liability Insurance at the Time of the Accident.
When you have an auto liability insurance policy, the law requires that company to “indemnify and defend” you for any potential loss that is covered – upto the coverage limits.
This means they have to defend you in court if you get sued, and pay damages you owe.
Normally, if a person with auto insurance gets sued, the auto insurance company takes over. The “Defendant” Driver gets served with a Complaint and Summons by the “Plaintiff” Driver. Defendant Driver sends Complaint and Summons to the insurance company, and they hire Attorneys to defend and/or settle the case in court.
If you do not have auto insurance at teh time of the accident, you are on your own for the 1) costs of defense; and 2) the damages you are ordered to pay.
There is no such thing as a public defender for cases in civil court where personal injury cases are heard. There are no court appointed attorneys for auto accident cases.
You must either: a) hire an attorney to defend you in court; or b) try to do it on your own.
You cannot do it on your own and expect a good result. You would be inviting disaster, and probably making it worse. But below, I will tell you the basics of how an insurance defense attorney with an unlimited budget would kill this obviously fraudulent case.
IV. Financial Consequences of Getting Sued Without Insurance.
Anytime you are sued, it means someone is trying to take money from you involuntarily. But just because you are being sued, it does not mean you have to pay. It just means that someone has made a claim they want the court to hear and decide.
If the plaintiffs get a “judgment” against you in court, they can take money from your bank account, garnish your wages and go after your property now and in the future. (See Notice of Entry of Judgement Form). Judgments come at the end of a case. A Plaintiff can get a “Judgement by Default” in the amount of their claim if the Defendant does not file an Answer on time. (See Request for Entry of Default Form.)
If you ignore the lawsuit, the plaintiffs can win without you by getting a “Default Judgment”. SO you have to address it. It will not go away on its own.
V. What Should You Do Now?
You need to consult with a could of local attorneys and get quotes to deal with the case. Most will charge you by the hour. But you need to talk with some.
DMV may not find out. Dont tell them unless they ask you for the reporting, because from your perspective, the amount of damage did not meet the minimum for reporting. And from your perspective, the Plaintiff’s claims of damages are false, and unproven.
Send the Complaint and Summons to the closest Insurance company anyway, tell them the date of the alleged accident is disputed. Ask them in writing to “Indemnify and Defend” you for the claim. You may be able to talk them into accepting coverage to avoid a “Bad Faith” claim.
If you cannot hire an Attorney to help you, and the insurance company refuses your “tender”: Get an “Answer” filed on time, and show up in court on time. Tell the judge your situation, and get more time to hire an attorney or find legal help.
VI. How An Insurance Defense Attorney Would Deal With the Case.
This is actually a common case. The typical way it comes to a defense attorney’s desk is pretty standard.
A driver gets sued, and is personally served with a Complaint and Summons. Driver freaks out, and faxes Complaint and Summons to Insurance Company. The insurance company then checks coverage, and if there was coverage, they send the Complaint and Summons to a law firm for Defense and Evaluation.
The law suit package show up on some attorney’s desk, and his/her job is to respond. The response typically begins before the attorney ever talks with the client.
The Attorney immediately gets a template “General Denial” Answer together, and mails it off to the court with a filing fee to get it filed ASAP. Filing that Answer prevents a default judgment, and is the most important part of defending a lawsuit.
No Answer = Judgement against you.
The “General Denial” is an attachment to the Answer that is completely standard in auto accident cases. It always says the same thing. “Defendant” completely denies everything. All allegations and statements are denied. Everything. Challenge everything including the date and time of the accident, and whether or not the accident really happened.
Maybe that “driver” was not ever there at all. Maybe he was in Mexico at the time and you can prove it with Video from the San Ysidro Target Parking lot?
Yea I said that. The facts are disputed. Go pound sand. I want that video and I have a right to search for it, even if it takes me a year.
DO NOT MAKE ASSUMPTIONS ABOUT WHAT THE EVIDENCE WILL SHOW IN COURT. DO NOT ADMIT ANYTHING THAT IS NOT PROVEN.
An “Answer” will also include other specific denials just to cover all bases. These specific denials are called “Affirmative Defenses” and are boiler plate language that is just inserted into a template Answer quickly. They would include: 1) Statue of limitations has passed; 2) Doctrine of LATCHES prevents plaintiff’s recovery, etc . . .
LATCHES? What the hell is that? Well, it is an example of why you cannot handle this on your own without an experienced Defense Attorney.
LATCHES could be very important in this case. It appears that the statute of limitations either may have passed, or was hours from passing. The doctrine of Latches can prohibit a plaintiff from recovering damages if they have waited an unreasonably long time to make the claim, even if the statute of limitations has not technically run. This could be a huge issue here.
After filing of the Answer, there is a status conference scheduled about 120 days out. Between that Answer date and the conference (called a “CMC” or maybe “Case Status Conference”), the parties are allowed to conduct “Discovery”. Discovery means the process of collecting evidence.
The Discovery period can least a year or more. It starts with a set of Standardized, written questions called “Form Interrogatories“. The form is available on line and free in California from the Judicial Council.
The Form Interrogatories are usually sent out by mail right away, and are designed to collect identification information (SSN, date of birth, etc) and basic facts about the alleged collision (date, time, weather, # of people, list of witnesses known, etc). See also Request for List of Witnesses.
Once you get the responses to Form Interrogatories back, you buy detailed background checks on all plaintiffs. Research who they are. Any other lawsuits? Claims? Criminal history of theft, fraud, bad checks?
Then there can be a round or two of other written questions, called Special Interrogatories and Requests for Admissions, which a crafty attorney can use to frame his/he strategy of the case.
Then, after written discovery, typically the Defendant’s Attorney will schedule and conduct the depositions of all plaintiffs and key witnesses. Depositions are live questioning sessions, which are recorded and transcribed. It is in the Depositions that you get everyone’s story on the record.
It is also during a Deposition that a skilled trial attorney catches fraud and traps scammers into lying on the record and thereby committing perjury and destroying their own case. (happens a lot). Show up well prepared, and do a lot of damage. “Mr. Plaintiff #1, have you even been in trouble with the law before?” “When was the last time you were in San Ysidro?” etc.
VII. Defense Strategies on a Bogus 2 Year Old Personal Injury Case.
First, you have to wear them out, demotivate them and work on bankrupting them.
These facts are disputed. The damages and liability are disputed and unproven. He owes YOU money! If you are going to sort, might as well sort it all out together.
You have to file your own “Counter” Complaint and Summons, then serve both against the other driver. If you are doing it on your own, you can use the SHeriff’s Office to serve the papers. That person owes you money. And if their claim survives the statute of limitations challenges, so does your counter claim.
There are certainly issues of comparable negligence here that need to be sorted out at the end. Who caused what? If there was a crash, who crashed into who when?
Get it? They sue you, you sue them. Always. Go pound sand, and I’m coming to your house to pound your sand too.
(guess what – if that driver did not have an auto liability insurance policy either, he/she will have to hire a defense attorney out of pocket or get railroaded by the cross complaint just like you.)
And that plaintiff’s attorney who is working on a contingency fee basis? – You think he wants to defend the counter suit at the same time and double his/her work? Puck no. Counter Suit Always. Motivation killer, and the facts are disputed here. Who knows what the jury will say.
And if it turns out that the Plaintiff Driver is not the OWNER of the car, sue the owner(s) of the car also. Sue everyone, let the jury sort it out.
2) Make a Written Motion to Limit / Exclude Damages.
California Civil Code sections 3333.3-3333.4 state that a Plaintiff’s damages are limited to actual medical bills (basically) if the plaintiff did not have valid auto insurance at the time of the accident.
You might be able to crush the case right here at this point if there are very few legit medical bills. No insurance for Plaintiff driver = No $ for pain and suffering.
Limitation of the damages would also kill the plaintiff’s attorney’s motivation, because it would limit the amount of money that dude can make on the case. Stick that in your pipe and smoke it Sucker!
If the other driver did not have a drivers license, he did not have insurance either. No license = no insurance.
3) Make a Written Motion for Ruling on Statute of Limitations Issue.
The Plaintiffs may have missed the statute of limitations here by one day if you are right about the date. (See California Code of Civil Procedure sections 312-366.3.)
It’s complicated. You are right on the deadline and it appear to me, missed it by 1 day. But if you do not fight it, the judge will assume it is all hunky dori.
Thus you must file and get a ruling on a Motion to Dismiss on the ground that the Complaint, on its face, as a matter of law, prima facae, is void due to the statute of limitations in CA which bars personal injury claims after 2 years.
After depositions, a good attorney would have all of hte evidence of the alleged date(s) and time(s) of the accident pinned down. Once that is done, a motion to dismiss should be made on the statute of limitations and latches grounds.
If you lose that motion and the Complaint survives, you make an interlocutory appeal on that issue which is sure to take several months.
If you lose the appeal(s), continue to step 4. If you win, file a Dismissal with the Superior Court.
4) Demand Independent Medical Examinations of all Plaintiffs.
The Defendant has a right to have an expert witness (hired gun) to do independent examinations of all the plaintiff and their medical records to verify their injuries and to testify in court at trial.
A good insurance defense trial attorney has a whole list of defense orientated doctors to hire that charge by the hour to review medical records and patients and then write up reports on what they find.
I would send out all of the evidence to several doctors, interview them over the phone, and pick the best opinion. Then schedule IMEs (independent medical examinations) and get written reports from the expert.
And maybe that expert says there are zero injuries.
5) Hire Accident Reconstruction Expert Witness.
Send an expert in engineering, and maybe one in glare and lighting effects from Standford university out there to document the scene and produce opinions on the causes, and impact forces involved in the alleged collision. Get opinions via telephone, if they are good, get them in writing. If the opinions are bad, fire the expert, and get a new one. Try again.
Once a Defense Attorney gets an accident reconstruction expert to produce a defense orientated report and opinion, the Plaintiff’s attorney has to come up with the money to produce a counter opinion from a similar expert or face being out gunned at trial.
6) Demand Non Binding Arbitration, Then Reject the Result.
All California Courts will require the parties of a personal injury suit to conduct some sort of Alternative Dispute Resolution (ADR). There are usually 2 forms: a) mediation and b) arbitration. Generally, mediation is more informal than arbitration. Arbitration can produce a written result.
But unless the parties agree otherwise, ADR is non binding, and either party can reject the result and demand a jury trial. Defense Attorney will sometimes prefer ADR, because it gives them a written evaluation of the case to send to the insurance company representative with the money.
An insurance defense attorney with unlimited budget who gets paid by the “billable” hour has no incentive to end the case are ADR, unless they are over-worked. On the other hand, a plaintiff’s attorney who is working on a contingency fee basis and hoping to get paid later, wants to end the case with as little work as possible. A crafty, unethical defense attorney can just have a standing rule that he/she rejects all arbitration.
A hard working, crafty, unethical insurance defense attorney might be tempted to go to an arbitration with the same arbitration brief from the last case. Maybe planning to reject the award anyway, and while there, work on summarizing some other case’s depositions so that he/she can bill 2 clients for the same hour and get home before 7:30.
No, that’s not true! Well, actually, some insurance defense firms expect their attorneys to produce a minimum of 190 billable hours a month. 252 was my record years ago. Maybe. Figure that one out. How duz that happen? Anyway, moving on . . .
7) Schedule a Jury Trial.
Once you get a couple years down the road, after you refuse to pay anything at the ADR, there will be a trial scheduled.
Once trial is scheduled the Plaintiff’s attorney has to start forking out large amounts of money for experts of their own, and for exhibits, jury fees, etc to get ready for trial. The Plaintiff’s attorney will also have to pay your expert doctors to get their opinions on the record prior to trial. And that is very, very expensive. Motivation killer.
8) Settle the Case If It Is Still Around.
Once all that is done, it might be time to try to settle the case for $500. Maybe the case suddenly goes away?
Next . . .
For the reasons listed above, I recommend that you hire an Attorney to deal with the Case ASAP. Some cases go away very quickly. But none of them go away by magic.
Is it really that EZ? No, it’s actually more complicated. 911 Advice? If nothing else, get that Answer filed. File it in person. Pay the fee. Dont ignore the case.
Hope this free legal self help article that took me 5 hours to write helps.
How much would I charge to defend this case? I’ll give you the same rate I would an insurance company: $225 per hour. Many attorneys would charge less. I really dont want your case unless I am going to get rich off it.
BUT! If one of you readers out there is the unlucky victim of someone else’s negligence and want me to review your case for a contingency fee arrangement, fill out the form below. I’d be happy to give you a quote if there are medical bills in excess of $15,000. I can help you.
Finally, for the reasons listed above, I always say auto liability insurance is always worth the money. Get it. Dont drive without proof of it.
Questions? Leave a Comment. This free legal self help article was written by a licensed trial attorney and brought to you by Google Adsense.
Want Attorney Christopher Dort to review and provide a quote on your personal injury claim? Fill out the form below. -”Dont talk to that insurance company until you’ve talked to me!”