1. 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.

2. What if more than one driver is at fault?

If multiple drivers are responsible for the accident, plaintiff can sue all of the potential defendants. At some point, between the claims stage and a jury verdict or an arbitrator's award, a decision is made as to the relative percentage of fault of each defendant. Each defendant then owes the injured plaintiff compensation for the injuries caused by his or her percentage of fault.

For instance, if it is decided that the plaintiff's case is worth $1,000,000 and defendant A is found to be twenty-five percent (25%) at fault, defendant B is found to be twenty-five percent (25%) and defendant C is found to be fifty percent (50%) at fault -- defendants A and B will each pay $250,000 in damages and defendant C will pay $500,000.

3. What if I am at fault for causing the accident?

If plaintiff's own negligence is the only cause of his or her injuries and the plaintiff is one hundred percent (100%) at fault, the plaintiff will recover no money in a legal case.

However, California is a comparative negligence state and a plaintiff can still recover monetary damages for their injuries if there is at least one other party at fault. However, the amount of the plaintiff's recovery is reduced by the percentage of the plaintiff's negligence. Thus, if the plaintiff were to receive $1,000,000 and plaintiff was found to be fifty percent (50%) at fault for causing their own injuries, the award would be reduced fifty percent (50%) to $500,000.

4. How is fault determined?

This is a complicated question and differs from case to case. At the claims 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 fault of all of the parties.

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

Yes. The passenger in a vehicle, whether driven by 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 urges the driver to speed.

If the passenger is a member of the same household as the driver there may insurance coverage exclusions which will prevent the passenger from collecting against the driver's insurance company, though, theoretically he or she can collect against the driver's own assets.

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

Yes. Frequently, in 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 was also at fault. Most commonly, good plaintiff attorneys will attempt to ascertain if a defective condition in one of the vehicles contributed to the accident or the plaintiff's injuries or whether a dangerous condition of the roadway played a factor. Further, there may be other defendants responsible such as a repair shop or an illegally parked vehicle.

7. What damages can I recover in a motor vehicle accident?

A plaintiff can receive compensation for his or her past and future medical bills, past and future wage loss/loss of earning capacity, past and future pain, suffering, and emotional distress and in cases of extreme willful misconduct punitive damages, (i.e., damages meant to punish the defendant).

If the plaintiff dies, his or her survivors are entitled to recover full compensation for their economic losses that result from the plaintiff's death as well as emotional distress damages which stem from the loss of society care and comfort of the decedent. If the survivors can prove that the plaintiff lived for a period of time between the negligent act and death, they can also bring an action for punitive damages.

8. 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.

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

An injured plaintiff can always go after 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 plaintiff has an uninsured or underinsured motorist policy of their own, then the plaintiff can recover from the their own insurance company the damages caused by an at-fault driver.

If the at-fault driver is uninsured, a plaintiff 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 plaintiff's damages, then the plaintiff can seek to recover from their own insurance company the difference between the at-fault driver's policy limit and the plaintiff's own policy limit.

For instance, a plaintiff with a $100,000 uninsured/underinsured motorist policy who suffers a serious injury worth $100,000 can recover $75,000 from their own insurance company if the at-fault driver has a policy limit of only $25,000.

An uninsured or underinsured motorist claim is decided at an arbitration rather than at trial.

10. 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 at least attempting to settle the case with an insurance carrier. However, one should always be cautious because what might seem like a minor injury may become more serious. For instance, a neck sprain may turn out to be a herniated disc requiring an operation nine months after an accident. If the case has already been settled, it will be too late to recover for the disc injury and surgery. Most good attorneys will know to wait until an injury is permanent and stationary before settling a case.

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 or at least consult with one.

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 their damages.

Generally speaking, a person injured in a motor vehicle accident case or the family of a person killed in a motor vehicle accident case, has one year from the date of the accident to bring a lawsuit. This time period may be extended under rare circumstances for late discovery. If a public entity is in any way involved, the claim must be brought within six months from the date of the accident.

Probably. Ninety to 95% of all motor vehicle cases settle at some time before trial.

1. Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this web site, research other legal articles and texts on the subject matter or consult with an attorney.