Excluded Driver's Right to Pain and Suffering Damages

Attorney Answer

Probably not, and the reason is a California statute rather than anything the other driver's insurer decided. Cal. Civ. Code § 3333.4(a) bars recovery of non-economic losses — pain, suffering and similar harms — by a person who was the owner of a vehicle involved in the accident that was not insured, and by a person who was the operator of a vehicle involved in the accident and cannot establish financial responsibility for it. A driver expressly excluded from the policy on the car he was driving is usually in exactly that position. His economic losses are a different matter and are not barred by that section.

The exclusion is the hinge, so it should be read rather than assumed. California courts have enforced named-driver exclusions according to their terms — see State Farm Mut. Auto. Ins. Co. v. Haight, 205 Cal. App. 3d 223 (1988) — which is why an excluded driver generally cannot look to that policy for his own operation of the car. Whether some other coverage reached him is a real question, though: a policy of his own, a policy in the household where he lives, or medical payments coverage could each change the answer, and Cal. Civ. Code § 3333.4 also contains an exception in subdivision (c), but it reaches only a person who owned the uninsured vehicle involved in the accident, so whether it is available to him turns on whether the car he was driving was his own. Whether he can establish financial responsibility is a question of proof, not something an adjuster decides.

Liability is not the obstacle here. Cal. Veh. Code § 21703 provides: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon, and the condition of, the roadway." Cal. Civ. Code § 1714(a) makes that driver responsible for an injury occasioned to another by a want of ordinary care. Your son was struck from behind and the other side accepted responsibility. The question is only what the law lets him be paid.

What is not barred still matters. Cal. Civ. Code § 3333 measures tort damages as the amount which will compensate for all the detriment proximately caused, whether it could have been anticipated or not. Medical treatment, out-of-pocket costs and lost earnings are economic losses and survive the bar in § 3333.4(a).

One thing to check now. The insurer paid for the car and took it. If anything was signed at that point, read it. Cal. Civ. Code § 1541 provides: "An obligation is extinguished by a release therefrom given to the debtor or the released party by the creditor or releasing party, upon a new consideration, or in writing, with or without new consideration." A release written to cover all claims can close an injury claim along with the property claim, even when the payment was described as being for the car.

What you can do

1. Get a copy of everything signed when the car was paid for and picked up, and read what it releases.

2. Ask that insurer, in writing, for the declarations page and any named-driver exclusion endorsement on the policy covering the car.

3. Check whether your son has any coverage of his own, and whether a policy in his household lists him — including medical payments coverage, which pays treatment costs regardless of fault.

4. Keep every medical record and bill from the crash forward, and a record of any work he missed. Those are the losses the statute does not bar.

5. Ask a local attorney to review Cal. Civ. Code § 3333.4 against his actual insurance situation before he accepts that nothing further is available.

6. Do not sign anything further, and do not accept a payment described as final, until that review is done.

7. Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. A claim for injury to a person runs under Cal. Code Civ. Proc. § 335.1, which allows two years, and it is separate from the property claim that has already been paid. When that period started depends on his facts, and this page cannot calculate the date. Have a local attorney check it against his own file now, because the payment for the car does not extend anything.