Legal Question in Personal Injury in California

Are lost wages from an auto accident compensable?

I was involved in an accident. The other driver failed the field sobriety tests but was found under the legal limit when tested at the station.I have lost $14000 in wages. Will I get this back? He has $20000 of insurance. Not enough I think to cover all the wages, P&S, Inconvenience etc... What about punitive damages? Can I take him to small claims court?

Asked on 4/29/01, 11:46 pm

5 Answers from Attorneys

John Bisnar Bisnar & Chase, LLP

Re: Are lost wages from an auto accident compensable?

I found four areas of concern which you expressed and an area to consider:

1. Liability by the other driver: the fact that a field sobriety test was given (and not passed?) and then the driver did not have higher than .08

percent blood alcohol has little to no affect on a liability determination.

2. Damages: the liability of a person who causes an accident is not limited

by his insurance. However, the amount of insurance affects a law firm's and

client's evaluation of how far to press a claim. I break your inquiry into two parts: what are the damages

you can recover, and how much insurance or other assets of the responsible

person are available to pay your damages.

Under California law, for a bodily injury claim you can recover the

reasonable value of the cost of medical care, the reasonable value of the time during which you were unable to work (past and future), other reasonable expenses incurred [nursing, etc.], and general damages [including pain

and suffering, disfigurement, emotional distress, etc.].

A defendant who has insurance has a contract which will pay damages he is responsible for up to the "policy

limit". That is not a limitation on the defendant's

liability - it just sets a limit on how much the insurance company must pay. If you can

establish liability, injury and loss of earnings of $14,000, an insurance

company will most likely pay the 20K policy quickly. They may expose

themselves to having to pay the plaintiff more than the policy limit if they

refuse to settle within the policy limit and then you obtain a judgment for

more than the policy limit.

You need to decide whether or not it will be worthwhile to press for more

than the policy limit from the defendant based upon the defendant's ability and likelyhood of paying.

3. Punitive Damages: in order to receive punitive damages, you must prove

malicious, fraudulent, almost "evil" intent or action on the part of the

defendant in causing the accident. This usually is not the case in an auto

accident - unless the other driver was extremely drunk or intentionally

tried to injure you. Keep in mind: if a person acts intentionally, insurance

will not cover the loss; insurance cannot pay punitive damages for a

defendant under California law.

4. Small Claims has a limit of $5000 for your entire claim. You cannot get

more. This is not $5000 over and above insurance; this is not the first

$5000 of your claim. Pursuing a bodily injury claim in Small Claims will

prevent you from pursuing the claim anywhere else.

5. More likely than not you have uninsured/underinsured motorist coverage on your own auto insurance policy. This is probably additional insurance to cover your damages, depending upon your limits.

John Bisnar, Bisnar & Chase, Personal Injury Attorneys & Counselors at Law,,,, 800-956-0123.

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Answered on 5/10/01, 12:21 pm
Michael Cortson Law Office of Michael D. Cortson, Esq.

Re: Are lost wages from an auto accident compensable?

Small claims has a limited jurisdiction of $5,000. There are ways to get the lid off of the insurance policy. I have done it many times. What were your injuries? Where did the accident happen and what are the facts? I practice in California and Indiana.

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Answered on 5/07/01, 3:52 pm

Re: Are lost wages from an auto accident compensable?

Your question has been sent to me as I specialize in pesonal injury law.

Assuming that the responsible party only has a policy limit that provides $20,000.00 per person for bodily injury and assuming that you have the injuries, medical bills and wage loss to equal or exceed the $20,000.00, it is possible that you may not receive full value for your claim.

Did you have uninsured motorist coverage on your own vehicle at the time of this accident? If so and your uninsured motorist coverage was higher than $20,000.00 per person, you could settle your case with the responsible party and then make an under-insured motorist claim with your own company.

Punitive damagees are technically possible but highly unlikely as a practical matter as state law prevents insurance companies from paying punitive damages. Those type of damages would have to come directly from the responsible driver and again, it is highly unlikely that the other driver would have that kind of money or voluntarily make that payment. Small claims is obviously not an option for you since the maximum amount is $5,000.00.

If you are in or around the Orange County area, I would be glad to provide you with a free consultation to further discuss the specifics of your case.

Yours truly,




TELEPHONE: 714- 963-5123

FACSIMILE: 714- 964-9993

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Answered on 5/22/01, 7:19 pm

Re: Are lost wages from an auto accident compensable?

Yes, lost wages, lost earning capacity, medical bills, future medical costs, and, pain and suffering are awardable. Your damages are far beyond the policy limits. You need to obtain representation immediately so as to attempt to have the insurance company cover in excess of the policy limits. Small claims is not an option unless you want $ 5K total. The insurance companies have attorneys to protect thier rights, why don't you? Please contact me dirctly at (619) 222-3504.

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Answered on 5/07/01, 7:15 pm
Lyle Johnson Bedi and Johnson Attorneys at Law

Re: Are lost wages from an auto accident compensable?

In California unless you sign a written waiver, you have uninsured motorist coverage. Uninsured motorist coverage also provides underinsured coverage. Assuming that the policy limit of the other driver is $20,000.00, your underinsured policy limit is $100,000.00, and the value of your case, that is a jury would award, is $100,000.00. After collecting the $20,000.00 from the other drivers insurance, you could file a claim with your insurance and collect the policy limit, minus $20,000.00 from the other insurance. Thus you could collect $80,000.00 from your insurance carrier.

You should seriously consider retaining an attorney to represent you in this case.

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Answered on 5/07/01, 10:39 pm

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