Oakland Personal Injury Lawyer Blog

A pedestrian who was crossing Central Avenue in Alameda was hit by a sports car on April 21, 2012. The victim was hospitalized, and is now recovering at home. The police say that the victim and another person were crossing the street in between intersections in the 700 block of Central Avenue at about 1:45 p.m. At that time a bystander yelled a warning to the two men. One was able to jump out of the way. The other was hit by the car which then fled the scene.

As an Alameda personal injury lawyer, a couple points come to mind regarding this accident. First, when you are involved in any accident, you are legally obligated to stop and identity yourself, and provide your insurance information. This is true regardless who is at fault for the accident. Second, even though cars have the right of way when traveling down the road, in between intersections, drivers still have an obligation to keep their attention on the roadway and avoid injury to others where possible. In other words, jaywalkers aren't fair game for drivers as they cross the road in front of you.

Looking at the conduct of the pedestrians in this case, the first question that pops out is why are they jaywalking? The 700 block of Alameda is a busy street. There are nearby intersections, with traffic lights to protect pedestrians. Under the law, a pedestrian also has the legal obligation to keep a look out for on coming traffic and obey all traffic laws. According to the reports, this was not done in this case.

It is hard to analyze the entire picture from a legal liability standpoint, because we don't know the speed of the driver, where he came from, whether there was intoxication involved, why the pedestrians were in the street, and where the point of impact was located. However, a couple of points can be made.

With regard to the injured pedestrian, he will not be able to sue the hit and run driver for his personal injuries unless the driver can be located. Therefore, his only method of obtaining compensation would be through his own uninsured motorist coverage on his automobile, if he has one.

Uninsured motorist protection is required by California law for every policy of automobile liability insurance issued in the state. It must be issued with limits of no less than $15,000.00 per accident. It protects drivers against uninsured drivers, but unbeknownst to many people, it also protects pedestrians and cyclists if they are injured by an uninsured driver or hit and run driver.

In a successful uninsured motorist claim, the pedestrian can obtain full reimbursement of his medical bills, any lost wages incurred, and general damages for his pain and suffering (up to the amount of uninsured motorist coverage that the individual carries).

In this case, the pedestrian would be able to make a claim against his own insurance carrier for the damages caused by the hit and run driver, assuming he can prove that the driver was negligent. His damages would then be reduced because of his own fault for jaywalking. This is the law of comparative negligence.

The important thing to remember about pedestrian accidents, and hit and run accidents, is that if you are injured in a accident like this, you can recover fully from your own uninsured motorist carrier. Therefore, it is also important to know about your auto insurance coverage and how much uninsured motorist coverage you have and whether it is adequate to fully protect you if you are injured by an uninsured or hit and run driver.

Resource:

Victim of Central Ave. Hit and Run Recovering, Alameda Patch, April 25, 2012

There have been two recent pedestrian accidents in Alameda. In one incident, a 17-year old girl was hit at the intersection of High St. and Encinal Avenue by a hit and run driver. In the other, a man was killed on Doolittle as he was walking along the side of the road (his car had been impounded by the Alameda police because he was an unlicensed driver). A number of Alameda residents have voiced concerns about the safety of Alameda streets. These recently well publicized cases bring a couple of points to mind. Are pedestrian accidents on the rise? What can be done to help further reduce the number of pedestrian collisions? If you are injured in a pedestrian accident, how can your auto insurance help you out?

Interestingly, the number of pedestrian accidents has actually declined over the past ten years. A study by the NHTSA, National Highway Traffic Safety Association, showed a 14% decrease in the number of pedestrian fatalities nationwide since 2000. In 2009, there were 4,092 fatalities and an estimated 59,000 injuries due to pedestrian accidents. Pedestrian fatalities represented 12% of all motor vehicle related deaths. 48% of the pedestrian deaths involved alcohol use by either the pedestrian or the driver.

NHTSA recommends the following practices to reduce pedestrian injuries and deaths.

• Drivers are required to yield the right of way to pedestrians crossing streets in marked or unmarked crosswalks. This is especially true in situations where drivers are turning right onto another street into the path of pedestrians.
• When possible pedestrians should cross at designated crosswalks. Always look left and right before crossing, and if a parked car is blocking your view, stop at the edge line of the vehicles and look before coming around it and entering the street.
• Increase visibility at night by carrying a flashlight or retro-reflective clothing.
• It is much safer to walk on the sidewalk, but if you must walk on the road, walk facing traffic.

If you have been injured in a pedestrian accident, there may be responsibility on the part of the other driver, on behalf of public entities who maintain the roadway, or on behalf of your own auto insurance carrier if the accident involves a hit and run or uninsured driver.

Where an accident is caused by an insured driver, an injured person can make a personal injury claim against that person's insurance company. In that claim the person can recover for their medical bills, lost wages, future lost earnings, and for pain and suffering.

Sometimes the pedestrian accident can be caused because the particular roadway, intersection or sidewalk was either designed poorly or was not properly maintained. If a dangerous condition of public property was a cause of the injury, a claim can be filed against the responsible entity responsible for maintaining the property. A government claim must be filed within six months of the date of the injury or it will be barred by law in most instances.

Finally, if an injury is caused by a hit and run driver, or an uninsured driver, you should have recourse to your own automobile insurance policy. This is true even if the person injured is a minor in the household and is not of driving age. Every auto policy in California is required by law to include uninsured motorist coverage unless the policy holder specifically declines the coverage in writing. This coverage will provide for compensation for all medical bills, lost earnings, and pain and suffering damages up to the full amount of the amount covered.

As an Alameda personal injury lawyer, I have represented many injured pedestrians over the years. The injuries are often serious and permanent in their repercussions. By following the recommendations above, hopefully we can continue to help reduce the numbers of these types of injuries.

Resources:

Traffic Safety Facts, 2009 Data, NHTSA

Daughter Victim of Hit-and-Run; Mom Wants Answers, Alameda Patch, January 24, 2012

Imagine traveling down Highway 880 in the evening and having a car speeding at 100 m.p.h. crash into you and then attempt to flee the scene. That's exactly what happened to a pregnant woman and her child in Oakland on April 20, 2011. Motorists reported seeing a 2005 Mercedes speeding at over 100 m.p.h. crash into the woman's car causing it to rollover. The driver of the speeding vehicle then fled the scene, but was later apprehended by the California Highway Patrol.

The odds that this hit and run driver was uninsured are high. Statistics show that there are over 1.3 million uninsured drivers in California alone. Fortunately, you can do something to protect yourself against the uninsured driver.

California law requires that insurance companies include uninsured motorist coverage with every automobile insurance policy sold in the State. The only exception is where the person buying the insurance agrees in writing not to purchase the uninsured motorist coverage.

• So how does uninsured motorist coverage work?

It applies to any accident where the at fault driver carries no liability insurance. It also applies to hit and run accidents, where the at fault driver has not been caught. What many people do not realize is that their uninsured motorist coverage will even protect them if they are in a bicycle accident or are injured as a pedestrian by an uninsured driver.

• What is covered by uninsured motorist?

An insured can recover all damages for personal injuries that he or she would have been able to recover against the at fault party up to the full amount of their coverage. This includes compensation for medical expenses, past and future, loss or earnings, past and future, loss of earning capacity, and for pain and suffering associated with one's injuries.

• How much is covered?

The insurance company is liable for all damages up to the limits of the insurance coverage. By California law, the minimum amount of coverage for uninsured motorist is $15,000.00/$30,000.00. This means that the most the insurance company would pay out on any uninsured motorist claim would be $15,000.00 to a single individual, or $30,000.00 for the entire claim if more than one person were injured in the automobile accident. $15,000.00 is a very low amount of coverage. Therefore, I would strongly encourage people to obtain uninsured motorist coverage in much larger amounts to protect themselves fully in the event that they are injured by an uninsured driver.

• Bad Faith Insurance Tactics:

Your insurance company owes you a duty of good faith and fair dealing to settle your claim promptly and fairly once liability is clear. This means that your insurance carrier has to pay you full compensation for all of your injuries and economic losses. What can happen, unfortunately, is that some companies will try and low ball their own insured with unfair offers, or delay in paying claims promptly.

As an Oakland uninsured motorist lawyer, I have represented many clients over the years who have had tremendous battles against the own insurance companies, who refused to pay what the client was legally entitled to. In a recent case involving a Tracy hit and run driver, the insurance company tried to argue that my client's car was not hit by a hit and run driver, and that the client was making a fraudulent claim. After two years of litigation, the insurance company ended up paying my client the full policy limits of $250,000.00. A second lawsuit was then brought against the insurance company for bad faith in the way it delayed and unfairly defended the claim. The insurance company then ended up paying an additional $250,000.00 to my client to settle the bad faith claim.

If you have been injured in a hit and run car accident, or by an uninsured driver, you should be fully aware of all of your rights against your own insurance company. As with any personal injury claim, you should know all of the do's and don't of dealing with insurance companies and adjusters to avoid making a critical mistake which can deflate the value of your claim.

Resource:

Oakland Tribune, Two arrested after violent I-880 hit-and-run crash near Oakland, April 20, 2011

Many California insured drivers are surprised to learn that their underinsured motorist coverage does not cover them to the full extent of their coverage. So, for example, when you purchase a $100,000.00 worth of under insured coverage, you will never, under any circumstances, recover the full amount of that policy. This is because California insurance law grants the insurance company a set-off or deduction for any money the injured person received from the underinsured driver.

Here is how an underinsured motorist claim is currently handled in California. First, one must have underinsured motorist coverage which has higher limits than the at fault driver who caused the accident. Second, their personal injury claim must be worth more than the limits of the other driver, and one must settle their personal injury claim against the at fault driver for the full amount of that person's policy. Third, they make a claim for the full amount of their damages, up to their underinsured limits, against their own policy. And finally, and here is where the inequity arises, the insurance company deducts from their claim any monies the injured person received from the settlement with the third party.

Here is how the program worked in a recent San Jose auto accident case where I represented a car accident victim in a personal injury claim. My client had a policy with $100,000.00 of underinsured motorist coverage. He was involved in a frontal collision with another driver. The at fault driver had liability limits of $50,000.00. As a result of the car crash, my client herniated a disc in his low back. He required surgery to repair the disc in his back and missed several months of work. The value of his personal injury claim was clearly worth more than $150,000.00 due to the pain and suffering he endured, his lost earnings, and medical expenses which were over $80,000.00. The case was settled with the other driver for the full amount of his limits of $50,000.00. Next a claim was made against my client's underinsured motorist policy. Due to the extent of his injuries and damages, fairness would dictate that he was entitled to the full amount of his underinsured coverage, i.e. another $100,000.00. However, he was not entitled to the full $100,000.00, only $50,000.00. This is because his insurance company was legally entitled under existing California law to take a full set off for the amount received from the other driver.

This is unfair and must be changed. Whether someone purchases $100,000.00 worth of coverage, or any other amount of coverage, the insured expects that they will be covered up to the full amount of the coverage. Under California law as it now exists, however, the insurance companies never have to pay the full amount of the coverage, because there is always a settlement with the third party, which always entitles them to their deduction.

The California legislature and Governor Brown have an opportunity to help policyholders and correct this inequity. There is currently a bill before the Assembly, AB 1063, which will take away the insurance companies' right to the set-off. This is the law in over half the States. As an Alameda personal injury lawyer, who has personally seen how the current law has resulted in great hardships and unfairness to California car accident victims, I strongly support the passage of this bill.

Resource:

AB 1063

Last night the driver of a stolen car caused a serious personal injury accident. The accident occurred at 60th and Camden Street in Oakland. The driver of a stolen Toyota slammed into the side of another vehicle driven by a mother who had her four daughters in the car. All four children were taken by ambulance to a nearby hospital. The driver of the stolen car fled the scene on foot.

Stolen cars are generally not covered by liability insurance. The reason for this is that only the named insured and persons whom the owner of the vehicle gives permission to drive the car are covered by the insurance. In this accident, since the car was stolen, the owner did not give the driver permission to use the car and therefore, there will be no insurance coverage for the negligence of this driver. However, the mother and her children will be covered for their personal injury damages under their own insurance plan if there is adequate uninsured motorist coverage on her vehicle.

Uninsured motorist protection will protect people who are hit by uninsured drivers, hit and run drivers, and stolen vehicles. As long as there is an actual contact between the uninsured vehicle and the insured vehicle the coverage will apply. In other words, it will not apply to a hit and run situation where someone is run off the road, but there is no actual contact between the fleeing driver and the insured.

The uninsured motorist will be able to recover against their own policies for all personal injury damages that they would have been able to recover against the uninsured hit and run driver, had that person had insurance. Therefore, a person who is injured in an auto accident by a hit and run driver can recover compensation for pain and suffering, for their medical bills, both past and those likely to occur in the future, and lost wages and loss of earning capacity. The claim is only limited by the amount of the uninsured motorist coverage purchased.

Uninsured motorist coverage is required by law in every policy of automobile insurance that is sold in the State of California (Insurance Code Section 11580). However, the insurance can be waived, if the insured does not want the coverage and signs a written waiver. Some people make the mistake of waiving this coverage in an effort to lower their insurance premiums. I see this frequently with minimum coverage policies and insurance companies that write insurance for high risk drivers. However, this is always the wrong decision to make.

The California Department of Motor Vehicles reports that there are over 1.3 million uninsured drivers in the state. As auto insurance becomes more expensive, the number of uninsured drivers will only increase. Therefore, I strongly recommend that you carry uninsured motorist limits in an amount as high as your own liability limits. If you are unaware of what your limits are, you can refer to the declaration page of your automobile insurance liability policy.

As an Oakland uninsured motorist lawyer, I see in my daily practice of representing personal injury victims, the importance of having adequate uninsured motorist coverage. For more information on the do's and don'ts of uninsured motorist claims, see my articles on uninsured motorist and underinsured motorist claims.

Resources:

The Oakland Tribune, Driver of stolen Toyota broadsides car carrying mother, four daughters in East Oakland, March 17, 2011

An increasing number of Bay Area hit and run and uninsured motorist accidents points out the importance of uninsured motorist coverage. Most recently, an Oakland pedestrian was killed. In San Jose, a bicyclist was hit by a hit and run truck driver.

Uninsured motorist claims that would apply to cases like these have their own set of rules which are covered by Insurance Code Section 11580.2. Within those rules however are numerous traps for the unwary.

A recent California appellate decision, Blankenship v Allstate Insurance points out one of those traps which deals with the statute of limitations. In an uninsured motorist case, a claimant must demand arbitration or file a lawsuit against the uninsured driver within two years of the date of the accident or the claim will be barred by law. The case holds that this rule applies to minors as well as adults. Therefore, minors who are injured by hit and run drivers or uninsured drivers must have their claims settled or demand arbitration within two years of the date of their accident. Unlike, civil cases, the statute of limitations is not tolled until they turn age 18.

Uninsured motorist coverage is required in every automobile liability policy issued in the state of California, unless waived in writing. As an Alameda personal injury lawyer, I have seen many instances, in both hit and run, and uninsured accidents, where mistakes have been made by claimants because they were not familiar with the peculiar rules which apply only to uninsured motorist claims. It is vitally important that anyone involved in a hit and run accident or uninsured claim know their rights under their uninsured motorist coverage.

Resource:

Blankenship v Allstate Insurance (2010) 186 Cal.App. 4th 87

Salim Nosrat, age 83, of Oakland died Friday evening from injuries he suffered in a hit and run accident. Mr. Nosrat was run down in a crosswalk at the intersection of Fremont Boulevard and Norris Road in Fremont. After the collision he was taken to Eden Hospital in Castro Valley for his injuries, where he passed away.

This tragic hit and run fatality points out the need for all of us to have adequate uninsured motorist coverage on our automobile insurance policies. Many people are not aware that pedestrians and even cyclists who are injured in hit and run accidents are covered by their uninsured motorist coverage on their automobile liability policies. Anyone, who is a family member and is living in the household of the insured, is also covered by the uninsured motorist coverage. Therefore, even non-drivers who are injured as pedestrians or cyclists are covered by the family's uninsured motorist coverage. When someone is killed in a hit and run accident, the family is legally entitled to make a claim for his wrongful death under the terms of the policy.

In 2004, there were 68,000 pedestrian accidents. Of these pedestrian accidents 4,641 of the pedestrians were killed. As a Fremont personal injury attorney, I am well aware of the importance of a good uninsured motorist policy to protect oneself against both uninsured drivers and hit and run drivers. When you have been hit by a hit and run driver or an uninsured driver, it is critical that you know you legal rights under your uninsured motorist coverage.

Resources:

Oakland Tribune, Oakland man dies after Fremont hit-and-run, November 8, 2010

National Highway Traffic Safety Administration, Traffic Safety Facts 2004

More and more drivers are being injured in accidents where the driver responsible for the accident is either uninsured or underinsured. DMV records show the number of uninsured drivers increasing every year. For the last year where these statistics were available there were over 1.3 million uninsured vehicles in California. The value of these uninsured motorist claims have steadily been rising over the past several years.

Often uninsured motorists flee the scene following an accident. When there is a hit and run situation, your uninsured motorist coverage will protect you, but there are certain steps that you must do to protect your rights.

These steps are set forth in Insurance Code Section 11580.2. First, you must file a police report. Second, you must establish there was a contact between your vehicle and the hit and run vehicle. There need not be major damage but there must be at least some minor contact between your vehicle and the hit and run vehicle. This contact could even be in the form of the hit and run driver hitting some other object which then hits yours. The crucial thing to remember is to document with photographs and area of your car which have been contacted as a result of the other driver's actions. If you have not proof of contact, your claim will be denied by your insurance company.

As an Oakland uninsured motorist lawyer, I have seen many abuses by insurance companies of their insureds who made uninsured motorist claims. If you have been injured in a hit and run uninsured motorist accident, it is important that you know your uninsured motorists rights and take appropriate and immediate steps to preserve those rights.

Resource:

Department of Motor Vehicles, Estimated Rate of Uninsured Motorists, 2004

Two elderly pedestrians were struck in crosswalks in San Francisco in unrelated accidents on Thursday, September 2, 2010. The first collision involved a hit and run auto accident. The driver ran over a pedestrian, Joyce Lau, as she was walking in a crosswalk. She later died as a result of her injuries. The hit run driver was caught and arrested for felony hit and run driving.

The second accident also occurred in an intersection where the pedestrian was walking in a marked crosswalk. A 79 year old unidentified woman was crossing the Bayshore Blvd. with the right of way when the driver took a right turn onto Bayshore from Bacon and hit her.

As a San Francisco personal injury lawyer, I have unfortunately seen many such serious pedestrian accidents. The law is clear that a pedestrian in a marked crosswalk has the right of way. As drivers, even if we have a green light, we have an obligation to make sure the crosswalk is clear before making a right turn onto an adjacent street such as in the Bayshore Blvd. accident described above. As pedestrians, we are obligated to obey all traffic signals. If the intersection is controlled only by lights, we are free to enter the crosswalk upon the green light. However, if the traffic control also has a red hand, that control supersedes the green light. If the red hand is up, the pedestrian may not enter the intersection even if the light in her direction is green.

By keeping our eyes open, and obeying the traffic laws, tragic accidents like these San Francisco pedestrian accidents can be avoided. If you have been injured as a pedestrian by a hit and run driver such as Ms. Lau, your automobile insurance uninsured motorist coverage will provide help. By filing an uninsured motorist claim you may recover for your medical bills, lost earnings, and compensation for your pain and suffering. If you have been injured by a hit and run driver you should be aware of your legal rights and your rights under your uninsured motorist insurance coverage.

Resource:

San Francisco Chronicle, Cars hit 2 S.F. pedestrians - 1 dies, 1 hurt, September 3, 2010

A San Francisco man was found unconscious at the intersection of 19th St and Folsom in San Francisco today. He later died. The coroner's office determined that the injuries were most likely caused by a hit and run driver.

The number of pedestrian accidents annually is staggering. A recent report showed over 68,000 were struck by cars in one year. Of these pedestrian accidents, 4,641 pedestrians died. Most frequently these accidents occur between 8 pm and midnight (37% of all pedestrian vehicle accidents occurred during this time). Alcohol was a factor in almost half of the accidents. Interestingly, in those case where alcohol was involved 37% of the time, it was the pedestrian who had been drinking.

Speed was the critical factor that affected the severity of the pedestrian's injuries. If the speed of the vehicle was 40 mph or higher, the pedestrian had a 85% chance of death. If the speed of the car was between 30 and 40 mph, the chance of death was reduced to 45%. If the speed was 20 mph or less, the risk of death was less than 10%.

A high percentage of these pedestrian accidents involve hit and run drivers like the San Francisco accident described above. Victims of hit and run accidents are entitled to make claims against their own auto insurance companies. These claims are known as uninsured motorist claims. As an Oakland personal injury attorney, I have seen too many unfortunate cases where victims of hit and run drivers were not properly insured. To adequately protect yourself against the risk of being struck by a hit and run driver, make sure your automobile policy has appropriately high levels of uninsured motorist coverage.

Resources:

San Francisco Chronicle, August 2, 2010, Fatal hit and run in the Mission

Safety Transportation.org, Pedestrians

National Highway Traffic Safety Administration, 2004, Traffic Safety Facts