If you are involved in a vehicular accident and the driver that caused the accident fails to identify himself/herself, certain steps must be taken to prove the uninsured motorist claims of any injury victims.
To begin, you must have Uninsured Motorist/Underinsured Motorist insurance coverage to be able to make a claim when you are injured by an unidentified driver. Since many vehicle accidents are caused by drivers who are either uninsured or who carry the minimum required insurance coverage of $15,000/$30,000, most prudent drivers carry uninsured/underinsured motorist coverage of at least $100,000. The UM/UIM coverage limits should be at least equal to the underlying insurance coverage that a prudent driver carries. Thus $500,000 UM/UIM coverage is preferable for those prudent drivers who can afford the premiums.
So if you as a driver have appropriate UM/UIM insurance coverage and you are struck by a hit and run driver, you must show that the driver/operator of the vehicle that struck you is unknown (Insurance Code §11580.2 subd (b)). You must show physical contact with the vehicle, report the accident to the police within 24 hours and file a claim with your insurance company within 30 days. A collision with objects other than another vehicle will generally not allow recovery under the Uninsured Motorist Act. (For example, see Boyd v. Insurance Exchange (1982) 136 Cal.App.3d 761, where a driver who crashed into a building after swerving to avoid being hit by an uninsured motor vehicle was precluded from recovery uninsured motorist benefits because there was no physical contact between her vehicle and the uninsured vehicle.
Within 24 hours after a hit and run accident, the damaged insured driver must report the accident to the police department of the city where the accident occurred. If the collision occurred in an unincorporated area, it must be reported to the Sheriff of the county where it occurred or to the local office of the California Highway Patrol.
In a hit and run accident in which the owner or operator of the other motor vehicle is unknown, within 30 days you must file a claim with your insurance company and a statement under oath that you, the insured (or your legal representative or heirs) have a cause of action arising from the accident for damages against a person or persons whose identity is unascertainable and setting forth facts supporting the assertion. The statement should include facts showing both why the hit and run driver’s identity cannot be ascertained and why you have a cause of action against the hit and run driver.
If the operator of a vehicle is unknown, but the owner of the vehicle is known, an insured victim should pursue his or her uninsured motorist rights as well as file an action against the known owner and the unknown operator within the two-year statute of limitations. If the operator of the adverse vehicle is later identified, the complaint may be amended by substituting the defendant’s name for a “DOE” defendant.
When there is a known insured owner and an unknown operator of the uninsured vehicle, the insurer on the uninsured motorist policy will normally require exhaustion of remedies against the insured owner before the insurer will process the uninsured motorist claim.
Under the Financial Responsibility Law (Veh. Code, §§ 16000-16560), the owner of the vehicle is financially responsible for the damages caused by any permissive user up to only $15,000 and $30,000, regardless of the policy limits. This limitation does not apply if the owner negligently entrusted the vehicle to a known unqualified or negligent driver. The owner’s insurance will be an offset in the uninsured motorist claim.
Warning: Be aware of statutory prerequisites. No cause of action will accrue to the insured under any bodily injury liability policy or endorsement provision issued under Insurance Code §11580.2 unless one of the following three actions has been taken within two years after the date of the accident (Ins. Code, §11580.2, subd. (I)):
- Suit for bodily injury has been filed against the uninsured motorist, in a court of competent jurisdiction;
- Agreement as to the amount due under the policy has been concluded; or
iii. The insured has formally instituted arbitration proceeding by notifying the insurers in writing sent by certified mail, return receipt requested.
For a cause of action to accrue based on an insured’s formal demand for arbitration, the insured must notify his or her insurer in writing sent by certified mail, return receipt requested, of his or her action within two years after the date of the accident. The notice must be sent to the insurance company or to the insurer’s designated agent for service of process filed with the state Department of Insurance.
Claimants must bring an action for underinsured-motorist benefits within “a reasonable time” after exhaustion of the claims against the underinsured tortfeasors. An insured may not make a demand for UIM benefits before settling with the underinsured motorist(s).
All demands or petitions for arbitration must contain a declaration, signed under penalty of perjury, stating whether:
- The insured has a workers’ compensation claim;
- The claim has proceeded to findings and award or settlement on all issues reasonably contemplated to be determined in that claim; and, if not,
- What reasons amounting to good cause are grounds for the arbitration to proceed immediately.
The filing of a lawsuit, even if the lawsuit fails to specifically identify uninsured defendants by name, tolls the period during which an insured can demand arbitration to resolve a claim for uninsured motorist insurance. (California State Auto. Assoc., Inter-Insurance Bureau v. Cohen (1975) 44 Cal.App.3d 387.)
Because of the time limitations and the requirements to validate and proceed with a successful UM/UIM claim against a hit and run driver, you should contact an attorney who is experienced in handling UM and UIM cases. The Van Blois Law Firm has successfully represented many clients that have made complete recoveries for their injuries in damages caused by a hit and run driver or any uninsured or under insured driver. R. Lewis Van Blois is a skilled and experienced attorney specializing in car accidents, truck accidents and dangerous road accidents.
The law firm can be contacted at the following locations.
Oakland / Walnut Creek / San Jose / Stockton / Modesto
San Jose: 510-343-9570
Walnut Creek: 510-343-9570