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Tort Reform-Unintended Consequences

Tort Reform – Unintended Consequences

By Jean-Simon Serrano, Esq. (Heiting & Irwin)

Oftentimes, well intentioned legislation can have far-reaching and unintentional consequences. A great example of this is Civil Code § 3333.4 or “Prop 213” as it is commonly known among those in the field of personal injury litigation.

Mr. Patterson, a client of mine and a retired factory worker, was driving home from the American Legion Hall last year when he was broadsided by a well-known company’s parcel delivery truck, the driver of which had run a red light. The twisted hulk of metal which had been Mr. Patterson’s car had to be cut apart so paramedics could rush him to the hospital for life-saving treatment. His right leg was so badly injured in this wreck that it required amputation. Because his wife had recently fallen ill, Mr. Patterson had unknowingly let his auto insurance lapse. As a result, he was an uninsured motorist on the date of the accident. The defendant truck company had full coverage.

Civil Code Section 3333.4 states that a person “shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if… (2) The injured person was the owner of a vehicle involved in the accident and the vehicle was not insured…” Civil Code § 3333.4 [emphasis added].

Mr. Patterson’s case provides a clear example of the problems surrounding Prop 213. As a retiree, he has no loss of income. As an amputee, he has been provided a prosthetic limb and has minimal future medical expectations. Medical bills for the amputation come to roughly $3,500. Though his driving on the date of the accident was flawless, and there is no question that he in no way contributed to the occurrence of the accident, because of Prop 213, Mr. Patterson will receive nothing for the excruciating pain he suffered at the time of the accident. He will not be compensated for the daily, constant pain he still experiences when he attempts to wear his prosthetic leg – pain which is so great, he often simply can’t wear the prosthesis and must use crutches to get around. Phantom limb pain, so severe it often wakes him up in the night, will go unaccounted for. His disfiguring injuries, along with the inability to drive, run, walk, or continue his volunteer duties as a crossing guard for a local elementary school, entitle him to absolutely nothing from the driver who carelessly caused all of these injuries. Furthermore, he is now unable to continue to look after his wife, whose illness has worsened in recent months.

The intention of Prop 213 was to curb the number of uninsured motorists on the road by pressuring people to get insurance. Whether it has been successful in doing this is doubtful. What was unintended but is very clear is the effect this bit of legislation has had on people such as my client, Mr. Patterson.

To make matters worse, plaintiffs in “Prop 213” cases often have a very difficult time finding representation, as most plaintiffs’ personal injury attorneys must summarily refuse such cases as the limitations on recovery imposed by Civil Code § 3333.4 make them impractical for contingent fee representation. Thus, this legislation also has the unintended consequence of forcing such plaintiffs to proceed in pro per, if at all.

Thankfully, there are certain exceptions to Prop 213. If the culpable party is found to have been driving while under the influence, Prop 213 does not apply. This is the only exception specifically provided for in the language of the statute. Civil Code § 3333.4(c).

Other exceptions, however, have been developing over the years through case law. One such exception deals with those driving company vehicles in a Workers’ Compensation setting. Montes v. Gibbens (1999) 71 Cal App 4th 982 held that Civil Code § 3333.4 does not apply to an employee driving his employer’s motor vehicle at the time of an accident. Thus, the plaintiff in Montes was not precluded from recovering for his pain and suffering despite the lack of personal insurance on the company vehicle he was driving at the time of the accident.

Another exception was created in Hodges v. Superior Court (1999) 21 Cal 4th 109, where the Supreme Court of California held that Civil Code § 3333.4 did not apply where the injuries were caused by a manufacturing defect of the vehicle. In Hodges, the uninsured plaintiff’s gas tank ruptured when he was rear-ended.

A more recent exception was found in Ieremia v. Hilmar Unified School Dist., (2008) 166 Cal. App. 4th 324. There, the Court of Appeal for the Second District held that Prop 213 did not apply to a wife who was legally the owner of a vehicle when she did not have actual or constructive knowledge of the ownership. In Ieremia, the uninsured motorist was driving a car which, unbeknownst to her, had been purchased by her husband days before the accident. In what was perhaps a bit of a stretch, the Court concluded that, as a matter of law, the plaintiff was not an “owner” of the uninsured vehicle for purposes of Civil Code § 3333.4, and that plaintiff was entitled to recover noneconomic damages such as pain and suffering.

While there is, perhaps, nothing wrong with the intended goal of seeing that all drivers on the road have insurance, Civil Code § 3333.4 is not be the best means to this end. Prop 213 seems ill-suited to achieving its intended goal, and many, if not most, California drivers are completely unaware of its effects. Instead of having the intended deterrent effect, it is often not until after a tragic accident that many, such as Mr. Patterson, will ever learn of the horrible consequences to innocent parties – and at that point, it is often too late.

For those who do have coverage and an uninsured motorist causes injuries, uninsured motorist coverage is essential; indeed, it is required by Insurance Code § 11580.2 for all policies in California, but one can opt out with a written waiver. I, and the firm where I work, Heiting & Irwin, encourage everyone to maintain maximum uninsured and underinsured motorist coverage on their automobile insurance policies. For minimal expense, one can ensure that they will have full coverage in the event of a tragic accident. Further, having such coverage allows one to set one’s level of coverage, rather than being constrained by the amount of coverage carried by the tortious party.

In the meantime, my office will be working to see if Mr. Patterson may be extended and/or within one of the exceptions to Prop 213. Mr. Patterson’s case is truly unfortunate and one that certainly merits exception to this heavy-handed legislation.

This article originally appeared in the July/August 2009 edition of the Riverside Lawyer.

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