Fault and Coverage After Swerving to Avoid Another Driver

Attorney Answer

The driver who cut in front of you is the one whose carelessness started this, and your friend's decision not to buckle up reduces what he can recover rather than ending it. The hard part is not the law — it is that a driver nobody identified cannot be sued.

California's negligence rule is a statute. Civil Code § 1714(a) provides: "Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself." A driver who swerves across in front of another car and forces it out of control falls inside that section even though the two cars never touched.

The closing words of § 1714(a) are the comparative-fault hook, and the California Supreme Court has said what they mean in practice: a plaintiff's recovery is reduced only to the extent his own lack of reasonable care contributed to his injury. Daly v. General Motors Corp., 20 Cal. 3d 725 (1978). California is a pure comparative fault state. A share of fault never bars a claim here; it only shrinks it. So the seat belt goes to how much, not to whether.

If the swerving driver is never identified, the realistic route for your friend's broken arm is insurance, and two policies matter. Yours: your liability coverage is what responds if your friend makes a claim against you, and your insurer would provide the defense. And any uninsured-motorist coverage available to your friend — Insurance Code § 11580.2 requires California bodily-injury liability policies to carry uninsured-motorist coverage, or to have it added by endorsement, unless it has been deleted by a written agreement on the forms the statute prescribes. Most people have it without knowing.

Whether a car that never made contact and was never identified counts as an uninsured vehicle carries specific requirements of its own. It is the first thing to put to a lawyer, because it can decide the whole claim. And note what that coverage does not do: uninsured-motorist coverage is bodily injury coverage. It will not repair your car. That is collision coverage, which is a question about your policy rather than a statute.

What you can do

1. Report the crash to your own insurer now if you have not already. Your policy requires prompt notice, and late notice is a defense carriers use.

2. Preserve what already exists — the collision report, scene photographs, dash-cam footage, and anything a passing driver recorded. Give your report to your own insurer's adjuster; you are not required to give a statement to anyone else's carrier.

3. Read the collision report for any description of the other car and for the names of witnesses the officer took down. A partial plate or a color and make is sometimes enough.

4. Have your friend ask his own insurer, and any policy he is covered under as a household member, whether uninsured-motorist coverage is available to him, and open that claim.

5. Keep your friend's medical records and bills together from the beginning, in one place.

6. Ask a local lawyer whether a no-contact claim can be made on these facts before anyone signs a release or accepts a settlement.

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. An injury claim runs on Code of Civil Procedure § 335.1: "Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another." Uninsured-motorist claims can carry their own, shorter deadlines set by statute and by the policy itself. When each clock started depends on your facts, so have a local attorney confirm both rather than assuming the full two years is available.