Legal Question in Insurance Law in California

Re: uninsured driver - collection suit

Your situation provides yet another reason why everyone should have auto insurance, especially in states like California that require it.

If you weren't injured and your car (or other property) was not damaged, then you have no case against the other driver -- at least for now.

I'm VERY surprised that their insurer won't discuss fault with you; is it possible you haven't explained the situation to them well enough?

If the case comes to trial it will be about fault. The insurer can't have a collection case against you until you have an obligation to pay a definite sum of money, and there is no such obligation in a case like this until a court has awarded damages.

You say that the case has been assigned to a collection agency, which is also very surprising as there is nothing to collect. Could it be that the insurer has a default judgment against you? If you did not answer their original complaint, the court may have entered judgment against you even though you filed a cross-complaint. This would explain the collection agency, and would also explain why they won't discuss fault -- fault is not an issue when they already have a judgment.

You should check with the court to see if a default has been entered. If it has, you should IMMEDIATELY try to have it set aside. This will require you to file a motion with the court explaining why you didn't answer. You will also need to prepare an answer to the original complaint. Courts don't like to set aside defaults after a lot of time has passed, so the sooner you act, the better.

I said you don't have a case against the insurer yet, because you haven't been damaged. (Being forced to defend their suit isn't enough to qualify as damages, because otherwise every defendant in a civil suit would be able to cross-claim.) However, if you win this case, you may then have a case for malicious prosecution against the driver, the passenger, and (possibly) the insurer. The prospect of recovering funds on this suit might entice an attorney to take your case on a contingency basis.

You expressed some concern about punitive damages being assessed against you. Without knowing what the complaint alleges, I can't say whether this is or isn't a risk. If the original complaint alleged punitives and you were given notice of the amount, then any subsequent default would include this amount.

As to how time-consuming this will be, I'm afraid the answer is "very."

Most courts will be reasonable about changing dates, but you have to let them know as far ahead of time as possible. Don't try to show up on the day of trial and say you need to postpone!

I would be interested in discussing this with you further. Please feel free to call me at 310-575-3540.

Edward Hoffman

Law Offices of Edward A. Hoffman

11620 Wilshire Boulevard, #340