Uninsured drivers beware, the law isn't on your side

For more than 50 years, drivers and operators of motor vehicles were required to carry automobile insurance with minimum coverage of $15,000 per person and $30,000 per accident for bodily injury and death, along with at least $5,000 for property damage or destruction, despite significant increases in medical and vehicle repair costs. Legislation that took effect in January 2025 raised these mandatory minimum insurance limits to $30,000 per person for bodily injury and death, $60,000 per accident and $15,000 for property damage or destruction, with a scheduled further increase in 2035 to $50,000 per person, $100,000 per accident and $25,000 for property damage.

If a driver cannot afford to buy a policy that meets the minimum statutory requirements, the California Low Cost Auto Insurance Program is available to qualified drivers. This program allows the driver to purchase insurance with limits of $10,000 per person, $20,000 per accident and $3,000 property damage.

Because the mandatory insurance limits are not enough in many cases to fully compensate the injured victim(s), the prudent driver should seriously consider purchasing more coverage, often an "umbrella" policy that provides up to $1 million in coverage or more.

Suing the uninsured motorist

Let's say that you are driving, fully insured as required by law and are hurt in an accident that is the other driver's fault. Much to your chagrin, the driver is completely uninsured. Can you still sue the uninsured driver for your injuries and property damage?

Of course you can. You could sue the negligent uninsured driver for all injuries (economic and noneconomic) and property damage you sustain. But face it, if the driver couldn't afford to be insured, he sure as hell isn't going to have the financial resources to pay for all of your injuries and loss. For this reason, you should seriously consider carrying uninsured/underinsured and collision coverage on your own policy.

Action by an uninsured driver

Now let's suppose that you are fully insured but get into an accident with an uninsured motorist that is all your fault. Can the uninsured driver sue you, and are there any restrictions on the types of damage he can recover from you?

The uninsured motorist can indeed file and litigate a case against you. However, the uninsured driver will not be able to seek all the damages he could have recovered had he been fully insured. This is due to Civil Code Section 3333.4, which prohibits uninsured drivers from collecting noneconomic damages from the other driver.

In the mid-1960s, insured motorists were angry and vocal about noninsured drivers who paid nothing, yet were entitled to receive full compensation -- both economic and noneconomic -- for their injuries suffered as the result of a traffic accident that was the fault of an insured driver.

Proposition 213 sought to ameliorate skyrocketing insurance premiums that insured motorists were paying, while uninsured drivers paid nothing but still had the same benefits and access to the judicial system as insured drivers. Denying uninsured motorists was designed to encourage uninsured motorists to obtain insurance.

Section 3333.4 is intended to limit automobile insurance claims by uninsured motorists so that such persons who contribute nothing to the insurance pool would be restricted in damages they could recover.

Proposition 213 includes increasing the cost of disobeying California's Financial Responsibility Law and avoiding unreasonable damages being awarded to the uninsured drivers or operators. One intent of limiting damages for uninsured motorists to economic losses was to equalize the litigation benefits for insured defendants.

Drivers who are barred from recovering noneconomic damages even when they did not cause the accident include:

 Uninsured drivers (although passengers in the vehicle may recover both economic and noneconomic damages);

 Injured drivers who were under the influence of alcohol and/or drugs at the time of the accident and were convicted of such offense;

 The injured person was the operator of a vehicle and is unable to establish his financial responsibility as required by state law; and

 Operators of unregistered or improperly registered vehicles.

Economic damages are out-of-pocket, culpable damages, and include medical expenses, lost wages and damage to or destruction of property. However, the uninsured driver cannot sue you for such intangible (noneconomic) damages as pain and suffering, mental anguish, physical impairment, permanent disfigurement, loss of enjoyment of life, loss of affection, companionship and society and other such losses, which often make up a significant part of damages in a motor vehicle accident injury case.

What happens when an uninsured driver is the victim of another uninsured driver's negligence? When an uninsured driver is the victim of another uninsured motorist's negligence, most of the time the injured uninsured driver cannot recover compensation for noneconomic damages, such as pain and suffering, emotional distress and physical impairment. But if the uninsured at-fault driver was charged with and convicted of DUI stemming from the collision, the injured uninsured driver can recover damages for both economic and non-economic damages. But here again is the practical issue of the negligent driver's financial ability to pay for the injuries and damages he caused, especially if the injuries are significant.

Operation or use of a vehicle

Section 3333.4 applies only to damages uninsured drivers cause arising out of the "operation or use" of a motor vehicle. Although driving is included in the concepts of operation and use of a vehicle, operation is a broader concept than driving. The vehicle need not be in motion; indeed, the engine need not even be running. Operation includes stopping, parking and other acts fairly regarded as necessarily incident to the driving of the vehicle.

"Use" is an even broader concept than operation. It extends to any activity utilizing the vehicle and includes parking, leaving the doors open and failing to set the parking brake.

Where an uninsured driver was hit by a bus as he was exiting his car, the court found that his injuries arose out of the use or operation of his motor vehicle. Therefore, he was barred by Section 3333.4 from receiving compensation for pain and suffering and other noneconomic (and nonpecuniary) injuries.

An uninsured driver who suffered second-degree burns when she spilled a hot cup of coffee on herself that she had just purchased at the drive-through window of a Jack in the Box was barred by Section 3333.4 from receiving compensation for her noneconomic damages. The court found that the woman was sitting in her car at the drive-through window with the motor running, the transmission engaged, and her foot on the brake pedal. The court stated that the woman was clearly operating the vehicle as well as using it.

Actions outside of Section 3333.4

Not all actions for noneconomic damages are prohibited by Section 3333.4. Although an uninsured driver or operator who gets injured is barred in many cases from seeking damages for noneconomic injuries, counsel must not overlook situations that may be beyond the purview of Section 3333.4.

For instance, although an uninsured driver injured in an accident through no fault of their own cannot recover noneconomic damages, the injured passengers in the same vehicle are still entitled to compensation for both economic and noneconomic injuries.

Product liability cases

An uninsured driver was driving along the freeway in a Ford Mustang when it stalled on the freeway. Another car traveling at a high rate of speed crashed into its rear end. Because of a design defect -- the gas tank being mounted in the trunk -- the car exploded upon impact, seriously injuring the driver.

The defendant contended that, since the injured driver did not have insurance, Section 3333.4 barred him from any recovery for noneconomic damages. The California Supreme Court rejected that argument and noted that the purpose of Section 3333.4 was to limit insurance claims by uninsured motorists. The California high court stated that a claim against an automobile manufacturer falls outside the scope of Section 3333.4. The court went further and ruled that "section 3333.4 does not apply to a product liability action brought by an uninsured motorist for injuries caused by a design defect."

Wrongful death cases

The parents of a woman who was killed in an auto accident while driving without insurance brought a wrongful death lawsuit for loss of their daughter's care, comfort and society -- typically regarded as elements of noneconomic damages.

The court concluded that Section 3333.4 did not prevent the parents from seeking compensation for their own injuries, as they were neither operating nor using the vehicle at the time of the accident in which their daughter died.

The court noted that the plaintiffs in this wrongful death action -- her father and mother -- were not prohibited from filing and pursuing their action, since they were not driving without insurance and therefore the case was outside the purview of Vehicle Code Section 3333.4.