Recovering Your Deductible After a Hit-and-Run Claim

Attorney Answer

Yes. If your insurer recovers from the driver who hit you, California's claims regulations require it to include your deductible in the demand and to share what it collects with you.

The rule is Cal. Code Regs. tit. 10, § 2695.7(q): "Every insurer that makes a subrogation demand shall include in every demand the first party claimant's deductible. Every insurer shall share subrogation recoveries on a proportionate basis with the first party claimant, unless the first party claimant has otherwise recovered the whole deductible amount." The same subdivision limits what can be taken out of your share: "No insurer shall deduct legal or other expenses from the recovery of the deductible unless the insurer has retained an outside attorney or collection agency to collect that recovery." — and then only as a pro-rata share of the allocated loss adjustment expense.

The companion rule is Cal. Code Regs. tit. 10, § 2695.7(p). Your insurer must tell you in writing whether it intends to pursue subrogation, and where it elects not to pursue it — or stops — the notice must state that any recovery to be pursued is your responsibility. That written answer is the fork in the road. If the insurer is chasing the driver, your deductible rides along with its demand. If it is not, the deductible claim is yours to pursue.

Underneath all of it is an ordinary negligence claim. Cal. Civ. 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." Leaving the scene does not erase that. Cal. Veh. Code § 20002(a) required the driver, in a collision resulting only in property damage, to stop immediately at the nearest location that would not impede traffic and take the identifying steps the section sets out; a violation is a misdemeanor carrying up to six months in county jail, a fine of up to $1,000, or both. If the driver has since been identified, the claim is against a real person who, in most cases, has a real insurer.

What you can do

1. Ask your insurer in writing whether it is pursuing subrogation. Cal. Code Regs. tit. 10, § 2695.7(p) requires a written answer.

2. If it is, ask for written confirmation that your deductible is included in the demand, as § 2695.7(q) requires.

3. If it recovers anything, ask in writing for your proportionate share and for the accounting behind any deduction taken from it.

4. If it is not pursuing the driver, get that in writing too, along with the statement that pursuing recovery is your responsibility.

5. If you get nowhere, file a complaint with the California Department of Insurance. Under Cal. Code Regs. tit. 10, § 2695.5(a) the insurer must give the Department a complete written response within twenty-one calendar days.

6. Ask a local attorney whether pursuing the driver directly for the deductible makes sense on your facts, and coordinate it with your insurer so the same money is not claimed twice.

7. Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts with someone who handles these cases in your area is worth more than any general guidance, including this page.

⏱ Time limits apply. A vehicle-damage claim runs on Cal. Code Civ. Proc. § 338(c)(1)'s three years; if anyone was injured, Cal. Code Civ. Proc. § 335.1's two years governs that claim and is the shorter. The regulation deadlines above bind your insurer — they are not your deadline to sue. When your period started, and whether anything changed it, depends on facts this page does not have, so have a California attorney confirm the dates. This page does not calculate them for you.