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AVOIDING CIVIL CODE SECTION 3333.4 (PROPOSITION 213):

LAW, CASES, APPLICATIONS, AND EXCEPTIONS.

How can an uninsured driver, uninsured vehicle owner, or a convicted DUI driver recover noneconomic damages by evading California Civil Code § 3333.4 via Proposition 213?


THE LAW:

In 1996, California voters passed Proposition 213 codified as Civil Code §3333.4.

Civil Code Section 3333.4 denies non-economic damages if:

The action to recover damages is “arising out of” the “operation or use” of a “motor vehicle”;

      AND

the “injured person” was either:

 (1) Convicted of OPERATING the vehicle under the influence of alcohol or drugs (i.e. DUI per Vehicle Code §23152 or §23153);

     OR

 (2) the OWNER of the involved vehicle, and the vehicle was not insured as required by the financial responsibility laws of California;

     OR

(3) OPERATING the vehicle and cannot establish his or her financial responsibility (by liability insurance or otherwise) required by California financial responsibility laws.

 Civil Code Section 3333.4(a)

Non-economic losses include: “pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages” [Civil Code §3333.4(a)].

 

CONSTITUTIONAL:

Can I successfully attack the statute as being unconstitutional?   Not likely.

Civil Code §3333.4 has withstood unconstitutional claims (lack of due process, equal protection and other constitutional grounds). [See Yoshioka v. Super.Ct (Todd) (1997) 58 Cal.App.4th 972,989-993; Quackenbush v. Superior Court (Congress of California Seniors) (1997) 60 Cal.App.4th 454,465-470; Honsickle v. Superior Court (Wysocki) (1999) 69 Cal.App.4th 756, 762-764.

 

FOUNDATION / RATIONALE FOR PROPOSITION 213:

It was intended to limit the damages recoverable by uninsured motorists when they sued "law-abiding motorists who pay for liability insurance," thereby giving the "law-abiding motorists... some savings in the form of reduced premiums." (Hodges v. Superior Court (1999) 21 Cal.4th 109, 116.)  In short, Section 3333.4 is intended to prevent unfairness when an accident occurs "between two motorists" (one insured, the other uninsured), and not to operate as a windfall to a defendant person or entity that is not part of the automobile insurance "system." (Hodges v. Superior Court (1999) 21 Cal.4th 109, 115-116).  Those "who fail to take essential personal responsibility" by purchasing liability insurance ought "not be rewarded for their irresponsibility and law breaking" (Ballot Pamphlet, text of Prop. 213, § 2, p. 102).


WAYS TO AVOID THE STATUTE:

Can I avoid or get around Civil Code 3333.4?  Sometimes.   How?

    1. If you are uninsured at the time of the accident, post a $35,000 cash deposit with the DMV (Department of Motor Vehicles) AFTER the date of the accident.

Certain trial lawyers reportedly have successfully avoided Civil Code section 3333.4 for their driver and/or vehicle owner clients who were uninsured at the time of the accident, but following the accident, posted a deposit of $35,000 with the DMV to comply with California’s financial responsibility laws (see Vehicle Code sections 16054.2 and 16056).  The statute regarding the deposit does not have any time limit - It does not state that it must be deposited before an accident. 

  

    2. Show that the wrongdoing was also caused by wrongdoing other than automobile operational negligence or roadway defect negligence.

a. Example: Product Liability:

Claim against car company that the vehicle was defectively manufactured or designed fall outside of Civil Code 3333.4.

In Hodges v. Superior Court (1999) 21 Cal.4th 109, an uninsured motorist suffered injuries as the result of a rear-end collision that caused the rupture of the gas tank of the Ford Mustang he was driving. The motorist sued Ford, alleging that the gas tank was defective. Ford moved for summary adjudication, contending it was entitled to the benefits of section 3333.4. The Supreme Court disagreed, holding that a "products liability claim against an automobile manufacturer falls outside the scope of . . . section 3333.4."

Rationale: Civil Code §3333.4 limits automobile insurance claims made by uninsured motorists who contribute nothing to the auto liability insurance pool.  Defective vehicle manufacturers do not contribute to that insurance pool but a different pool whose insurance rates are not affected by the existence of uninsured motorists." [Hodges supra, 21 Cal.4th at 115.

IMPORTANT NOTE: Although an uninsured driver can recover noneconomic damages against the automobile manufacturer, he or she can't typically recover noneconomic damages against the defedant driver because of Seection 3333.4.

b. Contrast Example: Dangerous Road Condition:

Claim for a dangerous road condition falls within section 3333.4

Dangerous Road Condition–Private Contractor: In Allen v. Sully-Miller Contracting Co. (2002) 28 4th 222, an uninsured motorcyclist was injured by making a sharp turn onto an elevated bus pad that defendant road contractor failed to demarcate or barricade. C.C. §3333.4 applies.  Noneconomic damages are not recoverable.  Plaintiff's injuries arose from "operation or use of a motor vehicle." It is road-related injuries.

Dangerous Road Condition–Government Entity Claim: C.C.§3333.4 prevents recovery of noneconomic damages by an uninsured motorist against a government entity for a dangerous condition or nuisance (motorcycle driver struck by car in intersection obstructed by overgrown vegetation on government property) that caused or contributed to the incident. Day v. City of Fontana (2001) 25 Cal.4th 268].

But see Anaya v. Super.Ct (City of Los Angeles) (2002) 96 Cal.App.4th 136: Passenger was injured in vehicle owned by uninsured parent in an auto accident, was airlifted by a city helicopter which crashed and killed the passenger. Uninsured parent sought non-economic damages for wrongful death. “Since Plaintiffs' helicopter-related claims against the City of Los Angeles are not based upon 'property-related' theories and do not allege theories arising out of the City's ownership or maintenance of its roads, …section 3333.4 does not limit the City's liability to Plaintiffs on their helicopter-related claims."   Non-economic damages are  recoverable.


    3. Show that Claimant was NOT the uninsured driver or uninsured vehicle owner.

a. Innocent Wrongful Death Heir: An heir in wrongful death claim can recover non-economic damages if he or she was NOT the uninsured driver or vehicle owner. [Horwich v. Super.Ct. (Acuna) (1999) 21 Cal.4th 272, 280; Anaya v. Super.Ct. (City of Los Angeles) (2002) 96 Cal.App.4th 136, 139-140].

b. Driver insured but injured vehicle owner not insured: Noneconomic damages are recoverable where vehicle owner is uninsured but driver is insured.

     Goodson v. Perfect Fit Enterprises, Inc. (1998) 67 Cal.App.4th 508: Civil Code Section 3333.4 did not apply to a wrongful death case brought by a widower whose passenger spouse had been killed in an accident involving their jointly owned uninsured vehicle, which was being driven by their daughter-in-law who was insured.

Rationale: The vehicle is "insured" within the meaning of the Financial Responsibility Laws (Veh.Code §16000 et seq).Thus, the injured owner may recover noneconomic damages. [See Vehicle Code § 16000.7(b); Goodson supra. at pp. 511-515].


    4. Show that uninsured driver was driving an uninsured employer-owned vehicle.

Section 3333.4 does not prohibit recovery of noneconomic damages by an employee for injuries he received while operating/driving his employer's uninsured motor vehicle. [Montes v. Gibbens (1999) 71 Cal.App.4th 982.

Rationale:  Where the vehicle operator is the owner's employee, various Vehicle Code provisions relating to "financial responsibility" are exempted from the employee operator and shifted to the employer owner; this shows “that an employee operating his or her employer's vehicle need not establish financial responsibility” which is a major purpose of §3333.4.  Further, employees are not likely allowed to insure their employers' vehicles.  [See Montes, supra.]

Compare: Employee was driving an uninsured vehicle owned by employee and was clearly not covered on the employer's insurance policy: Civil Code § 3333.4 precludes an uninsured driver from recovering noneconomic damages even if injured while acting within the scope of employment if the employer's liability policy expressly, plainly and unambiguously excludes coverage of employees driving their own vehicles.  Vargas v. Athena Assurance Co. (2001) 95 Cal.App.4th 461.


    5. Show that lack of insurance coverage was due to highly unusual circumstances,

Claimant might be able to recovery non-economic damages if he or she tried to get insurance coverage but, due to “highly unusual circumstances,” the motorist, who in all other respects was in compliance with the law, had suddenly and unexpectedly lost his or her insurance coverage without an opportunity to reinstate the coverage. Honsickle v. Super.Ct. (Wysocki) (1999) 69 Cal.App.4th 756 (However, in Hornsickle, an injured driver was denied insurance coverage because she did not have a driver’s license and the appellate court held that driver cannot recover of noneconomic damages even though the driver sought in "good faith" to obtain coverage. 

 a. Note: In Hornsickle, supra., the husband’s loss of consortium claim for non-economic damages was also denied, even though he was an insured owner because the wife was excluded from the policy and, thus, his insurance coverage did not apply to the claim, i.e., he was effectively uninsured for the claim.

 
    6. Show that the action to recover damages is NOT: (1) “arising out of” (2) the “operation or use” (3) of a “motor vehicle” (4) on a public street or highway.

(1) “Arising out of” the “operation or use”:

a. As used in §3333.4, "arising out of” means that "something grows out of or flows from an event." Harris v. Lammers (2000) 84 Cal.App.4th 1072, 1076.

 b. Vehicle "operation" is a broader than driving and does not require vehicle movement or the engine running. Operation includes stopping, parking, exiting the vehicle, and other acts necessarily incident to driving. Vehicle “use” is an even broader than operation, extending “to any activity utilizing the vehicle." Cabral v. Los Angeles County Metropolitan Transportation Authority (1998) 66 Cal.App.4th 907, 913-915.

    Example 1: Exiting car = operation or use: “Plaintiff, an uninsured motorist, was EXITING his car, when a defendant's bus collided with plaintiffs car, causing property damage and personal injury. plaintiff could not recover non-economic damages, because plaintiff was an uninsured motorist and his damages arose out of the operation or use of a motor vehicle...plaintiff’s recovery is limited to his economic damages. Cabral v. Los Angeles County Metropolitan Transportation Authority (1998) 66 Cal.App.4th 907.

    Example 2: Adjacent to vehicle = use: In Harris v. Lammers (2000) 84 Cal.App..4th 1072,1075-1077, an uninsured Plaintiff (Harris) was outside of and behind her parked vehicle and was handing balloons to her children inside the vehicle when Defendant Lammers backed out of her parking space, then pulled forward, clipped the door of Harris's Izusu and pinned Harris against the back of the vehicle, causing injuries.  “Clearly Harris was "using" the Izusu to transport her children and supplies. Just as clearly, the accident arose out of and flowed from that use…[T]his was an action "arising out of ... [the] use of a motor vehicle" and subject to Civil Code §3333.4 denial of noneconomic damages."

    Example 3: Spilled Coffee Burns = Use: Plaintiff, Teckla Chude, an uninsured driver, suffered second-degree burns when she spilled the coffee she had just purchased at the drive-through window of defendant Jack in the Box Inc. (JIB).  Section 3333.4 precludes [prevents] Chude from recovering an award of noneconomic damages. Chude was seated inside her car, with her seatbelt on, with the motor running and the transmission engaged. Here, the accident "arose out of" her "operation" and "use of" her vehicle at the time of the incident. More important, Chude would not have been in the drive-through lane purchasing coffee but for her vehicle. “Had she been standing at the take-out counter, presumably the coffee might have spilled on her shoe, but she would not have been forced to sit in a puddle of hot liquid as she tried to extricate herself from a seatbelt.” Chude v. Jack in the Box Inc. (2010), 185 Cal. App. 4th 37.  Chude would have likely gotten around the statute if she had a viable products liability case like the famous McDonald’s coffee burn case.

    Example 4: Dangerous Private Property affecting public road accident  = Operation of Vehicle: Uninsured motorcycle rider Plaintiff “seeks to recover damages for injuries arising out of his operation and use of a motor vehicle when it collided with another vehicle [on a public road] as a result, in part, of M & R's negligence in the placement of two semi-trailers [on private property]. That is an action "to recover damages arising out of the operation or use of a motor vehicle." Proposition 213 precludes uninsured motorists from recovering noneconomic damages applies to action against a private entity based on dangerous condition of private property. Krough v. Reynolds Packing, Inc. (2001) 91 Cal.App.4th 1243.


(2) of a “Motor Vehicle”

 a. Vehicle Code Section 415:  “A ‘motor vehicle’ is a vehicle that is self-propelled.”

(Exceptions: a self-propelled wheelchair (and the like).

b. Vehicle Code Section 670.  “A ‘vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power…”

c. Examples:

    Bicycle: Non-motorized human powered bicycle is NOT a self-propelled motor vehicle.

    Motorized Construction Device: “…the Snorkelift [motorized boom] was [a motor] "vehicle," since it is a device by which a person or property may be propelled or moved on a highway, and … self-propelled. Even though it is not designed for use on a public street or highway, and is not a device required to be registered with the Department of Motor Vehicles...” Garcia v. Superior Court (Weinberger) (2006) 137 Cal.4th 342.

 

(3) "On" a "public street or highway."

Privately owned parking Lot: An accident solely occurring on private property would most likely not fall under CC 3333.4 because the accident did not occur on a public road.  Thus, it appears that noneconomic damages would be recoverable by  an uninsured driver or operator in that situation.

Motorized construction device falls off of tow truck onto public road AVOIDS C.C. 3333.4: Self-propelled motorized boom operator was injured when the boom fell off a tow truck due to tow truck driver’s negligence avoids Section 3333.4 because the machinery was not “on” the street but rather “on” the tow truck.  See Garcia v. Superior Court (Weinberger) (2006) 137 Cal.4th 342 and Vehicle Code §16000(a).

See also provisions of the Vehicle Code define "street" (§590), "highway" (§360).

 

    7. Show that Defendant driver was convicted of a D.U.I.

DUI EXCEPTION: If DEFENDANT wrongdoer was: (1) Convicted of (2) specifically Vehicle Code §23152 or §23153 [driving under the influence of drugs or alcohol], then uninsured Plaintiff/Claimant vehicular OWNER can recover non-economic damages.  [See Civil Code §3333.4(c)].

      a. DEFENDANT's conviction under Vehicle Code §23103(a) for reckless driving "involving alcohol" did not bring into play the "DUI" exception, and, thus, the uninsured plaintiff was not permitted to recover noneconomic damages for pain, suffering, and the like). Nakamura v. Superior Court (Orona) (2000) 83 Cal.App.4th 825, 832-833.

Rationale: Defendant was not convicted of Vehicle Code §23152 or §23153 [which are specifically covered by the exception] but of §23103(a) [which is not covered by the exception].


    8. Show that the Claimant was NOT the “owner” of the uninsured vehicle:

a. Example 1 - Lacking incidents of ownership: Vehicle Code §460; Savnik v. Hall (1999) 74 Cal.App.4th 733: Plaintiffs Mr. Savnik (driver) and Ms. Conant (passenger) were injured in an uninsured car in which both were DMV registered owners. Savnik bought the car with his own money. There was no liability insurance for the Suburban at the time of the accident. “Vehicle Code…Section 460 defines "owner" as "a person having all the incidents of ownership, including the legal title of a vehicle...." “An ‘owner’ is one who exercises the incidents of ownership— dominion, control, right, interest, and title.” “Vehicle ownership is a fact question for the jury to determine in light of all the circumstances …Registration is merely one "incident" of ownership. ‘A certificate of registration does not necessarily or conclusively establish true ownership’;...Since Conant did not contribute any funds to buy the Suburban, never drove it, and had no knowledge that her name was listed on the registration certificate, the jury's finding that she was not its ‘owner’ was abundantly supported.  The trial court properly refused to reduce Conant's noneconomic damage award.” 

b. Example 2: In Honsickle v. Superior Court (Wysocki) (1999) 69 Cal.App.4th 756, the husband owned and insured his vehicle, but at the time of the accident the car was being driven by his wife, who was excluded from the insurance policy . The court concluded that the husband was the owner of an uninsured vehicle for the purposes of the accident and the case arising from it. Under Civil Code Section 3333.4, an “owner” of a vehicle is a person having or exercising the incidents of ownership—dominion, control, right, interest, and title.

c.  Example 3 - Unknowing Ownership: A spouse’s “unknowingly possession of a community property interest” in an uninsured motor vehicle “is is insufficient without more to make her an owner for the purposes of Proposition 213.” Spouse was entirely unaware of husband’s purchase of the vehicle; believed the vehicle belonged to his boss who had lent it to the husband; never drove it; never had the keys; never had seen the vehicle until husband brought it home a day or two before the accident; and had never even ridden in the vehicle before the day of the accident. “Thus, …these facts that as a matter of law plaintiff was not the ‘owner’ of the Durango for purposes of Proposition 213, thereby ALLOWING the recovery of noneconomic damages pursuant to Civil Code § 3333.4 (a)(2). Ieremia v. Hilmar Unified School District (2008) 166 Cal. App. 4th 324.


    9.  Prove that the injured driver was insured by some liability policy.

a. Permissive User: In Landeros v. Torres (2012) 206 Cal.App.4th 398, the issue was whether or not the injured unlicensed and underage driver was insured (covered by the car owner’s insurance policy) as a permissive user of the vehicle.  The appellate court held that the driver “… was a permissive user under the insurance policy purchased by her father” per the insurance policy terms and Insurance Code section 11580.1, even though she did not have a driver's license. Accordingly… section 3333.4 did not apply and … noneconomic damages” are recoverable.

b. Relatives' Policy: In Roper v. Pintchovski, California Court of Appeal, 1st Appellate Dist., 3rd Div. 2012, Case No. A131650, not officially published, “Plaintiff was riding a motorcycle when he collided with an automobile driven by defendant. Plaintiff had received the motorcycle a few days earlier as a birthday gift from his fiancée, Dawn Hallberg. The motorcycle was not yet registered to either plaintiff or his fiancée. Plaintiff had no proof of insurance with him at the time of the accident but later claimed he was insured under policies issued to his parents and his fiancée's father.”  The appellate court disagreed and determined that Civil Code 3333.4 applied because he was uninsured.


    10.  Prove punitive damages.

Punitive damages are recoverable by DUI or uninsured motorists/claimants:

Civil Code §3333.4 says nothing about punitive damages. “Punitive damages do not compensate for loss. Their sole purpose is to punish and deter.” Thus, “punitive damages are of a different kind than the ‘non-economic’ and ‘nonpecuniary’ damages referred to in section 3333.4…Accordingly, plaintiffs are not prohibited by that statute from pursuing their punitive damages claims..." Nakamura v. Superior .Ct. (Orona) (2000) 83 Cal.App.4th 825.


Note: Section 3333.4 is a remedial statute.  Thus, it must be construed broadly to effect its purposes. (Cabral v. Los Angeles County Metropolitan Transportation Authority (1998) 66 Cal.App.4th 907, 914.)  Unfortunately, Section 3333.4 does not define certain key words and phrases contained in its provisions. As a result, Courts broadly interpreted, for example, “operation and use” and “arising out of” expanding the law beyond the design of “remedying an imbalance in the justice system that resulted in unfairness when an accident occurred between two motorists-one insured and the other not.”  Thus, certain defendants other than insured motorists have been protected from paying out non-economic damages. 

 
THE TEXT OF THE CODE:

 3333.4. 

(a) Except as provided in subdivision (c), in any action to recover damages arising out of the operation or use of a motor vehicle, a person shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if any of the following applies:

(1) The injured person was at the time of the accident operating the vehicle in violation of Section 23152 or 23153 of the Vehicle Code, and was convicted of that offense.

(2) The injured person was the owner of a vehicle involved in the accident and the vehicle was not insured as required by the financial responsibility laws of this state.

(3) The injured person was the operator of a vehicle involved in the accident and the operator can not establish his or her financial responsibility as required by the financial responsibility laws of this state.

(b) Except as provided in subdivision (c), an insurer shall not be liable, directly or indirectly, under a policy of liability or uninsured motorist insurance to indemnify for non-economic  losses of a person injured as described in subdivision (a).

(c) In the event a person described in paragraph (2) of subdivision (a) was injured by a motorist who at the time of the accident was operating his or her vehicle in violation of Section 23152 or 23153 of the Vehicle Code, and was convicted of that offense, the injured person shall not be barred from recovering non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages.

 

Disclaimer: The information provided in this article is informational, only. The subject matter and applicable law is evolving and/or constant state of change.  This article is based on California law.  No legal advice is given and no attorney/client or other relationship is established or intended.  The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader. It is recommend that readers of this information consult with their own legal counsel prior to relying on any information on this website.

Copyright 2015 by M.B. Tozer Esq.
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