Although California requires all automobile drivers (not commercial drivers) to be insured for a minimum of $15,000, which is typically never sufficient, there are many drivers who are not insured at all. These drivers are commonly of limited means, so seeking their personal assets in litigation is commonly a losing proposition. Your attorney should first determine if the driver has sufficient personal assets, and if there are not, then alternative means are available to help you receive adequate compensation for your injuries.
Your own automobile insurance policy can provide you with the protection you need. For your policy, there is a coverage provision for Underinsured Motorist/Uninsured Motorists (“UM/UIM”). You can find this on the Declarations Page of your policy, which is the page that lists all your coverages and the amounts of coverage. This is commonly one of the first pages of your automobile policy. On that line item, there will be a monetary amount the represents the UM/UIM coverage applicable to you.
It is important to ensure your UM/UIM coverage amount is as much as you can afford to pay for this coverage. The reason is that when you are injured by an uninsured or underinsured driver, your personal automobile policy will step in and cover your injuries.
Examples of each of these scenarios follow. If you are injured by an uninsured driver, and you have $100,000 in UM insurance coverage, you can seek up to $100,000 from your own automobile insurance policy. Or, if you are injured by an insured driver with a $15,000 policy and your UIM coverage is $100,000, you can receive $15,000 by the driver and get up to $85,000 to reach your $100,000 UIM insurance policy limit. If you do not receive the limit from the driver’s insurance policy, then you cannot proceed against your own insurer in the UM/UIM case. You must receive the maximum of the driver’s policy before you can proceed against your own insurance company.
The UM/UIM “underlying” case against the responsible driver (the driver is the defendant; you are the plaintiff) is managed by the Superior Court in the Civil Law Division. After that case is resolved, then the UM/UIM case is handled in private arbitration pursuant to your automobile insurance policy (almost every insurance policy requires this.) Private arbitration in this setting can be more efficient and less costly than Civil Court, so do not be immediately discouraged by this.
A very important point is that you should ensure that your UM/UIM insurance coverage is large. Yes, this more expensive, but it is an insurance against someone having no assets who may injure you or your family. A problem I see is that insurance agents do not discuss this issue with you (the insured) either because they do not understand the ramifications or because they are instructed to not discuss this with you. This is a very troubling problem that might create insurance bad faith issues. While you pay more money for greater UM/UIM coverage, the insurers may not want to incur these potential loss burdens.
The insurer may want your low-level UIM/UM premium and not want to be exposed to additional UM/UIM liability. When discussing increasing your UM/UIM coverage with the broker/agent, ask them if you are paid on a large claim, how does it affect your premium. It should not since you pay more for that coverage and the injury was someone else’s fault.
Everyone must acknowledge that uninsured and underinsured drivers are everywhere and one way to protect yourself is to be adequately insured.