Category: News&Events

Derechos de los pasajeros lesionados en casos de accidentes de Auto

Los pasajeros lesionados en accidentes de automóvil tienen derecho a recibir una indemnización por sus pérdidas. No importa si el conductor del vehículo en el que viajaba el pasajero o el conductor de otro vehículo fue culpable por el accidente. De hecho, una serie de pólizas de seguro de automóvil puede estar disponible para compensar un pasajero herido. Por supuesto, en algunas pólizas de seguros, el pasajero podrá ser una persona excluida. Por ejemplo, una póliza de seguro de automóviles con una cláusula de exclusión para pasajeros no cubriría el pasajero.

En la mayoría de los casos, existe un seguro que cubre las pérdidas del pasajero. En una colisión de dos coches, en la que el pasajero se monta en un automóvil A, las pólizas de seguro de automóvil puede estar en efecto para los conductores de ambos coches A y B. Además, el pasajero también puede estar cubierto por su propio seguro. Si el coche B no estaba asegurado, en la mayoría de los estados, la compañía de seguros del vehículo A tiene una cobertura de conductores sin seguro para el pasajero. La compañía de seguros de un pasajero en el vehículo A tiene exceso de cobertura para el pasajero.

Si un conductor y su pasajero desea demandar a otro conductor por negligencia en un accidente automovilístico, el conductor y el acompañante pueden utilizar el mismo abogado. Mientras los intereses del conductor y del pasajero no son adversos, la doble representación está bien. Sin embargo, si sus intereses son adversas, que no puede ser representado por el mismo abogado, a menos que la naturaleza de sus intereses son tales que el abogado no crea que afectará a los deberes del abogado para el pasajero y conductor y cada uno de ellos da su consentimiento tras una consulta inicial. Obviamente, un abogado no puede representar simultáneamente un conductor y un pasajero en accidente de automóvil si el pasajero es intenta hacer una reclamación de negligencia contra el conductor.

El pasajero también puede demandar a su agente de seguros, quien no pudo obtener la cobertura por automovilistas sin seguro para un conductor como el agente estaba contractualmente obligado a hacer. El pasajero podrá alegar que el incumplimiento del deber del agente le causó sufrir directamente como un tercer beneficiario de la obligación incumplida.

Para estar informado sobre los derechos de conductores y pasajeros en caso de un accidente haga una consulta inicial con uno de los abogados de accidentes de auto en San Diego o llámenos al (619) 239-9750

RIGHTS OF INJURED PASSENGERS IN AUTO ACCIDENT CASES

Rights of Injured Passengers in Auto Accident Cases

Passengers injured in automobile accidents have a right to recover compensation for their losses. It does not matter whether the driver of the vehicle in which the passenger was riding or the driver of another vehicle was at fault for the accident. In fact, a number of automobile insurance policies may be available to compensate an injured passenger. Of course, under some insurance policies, the passenger may be an excluded person. For instance, an automobile insurance policy with a passenger for consideration exclusion clause would not cover the passenger, who routinely paid the driver to take the passenger on errands or to an airport.

In most cases, insurance exists that will cover the passenger’s loss. In a two-car collision, in which the passenger is riding in car A, automobile insurance policies can be in effect for the drivers of both cars A and B. Further, the passenger may also be covered by his or her own policy. If car B was not insured, in most states, the insurance company of vehicle A has primary uninsured and underinsured motorist coverage for the passenger. The insurance company of a passenger in vehicle A has excess coverage for that passenger.

If a driver and his or her passenger want to sue another driver for negligence in an automobile accident, the driver and passenger may be able to use the same attorney. So long as the interests of the driver and passenger are not adverse, the dual representation is fine. However, if their interests are adverse, they cannot be represented by the same attorney, unless the nature of their interests are such that the attorney does not believe that they will affect the attorney’s duties to the passenger and driver and each of them consents after full consultation. Obviously, an attorney cannot simultaneously represent a driver and a passenger in automobile accident action if the passenger is pursuing a claim of negligence against the driver.

An automobile passenger can sue an insurance agent, who failed to obtain uninsured motorist coverage for a driver as the agent was contractually obligated to do. The passenger claimed that the agent’s breach of duty caused her to suffer directly as a third-party beneficiary of the breached obligation.

 

PROOF OF LOSS OBLIGATIONS

Proof of Loss Obligations

 

When an insured has suffered a loss and wants to prove coverage under an automobile insurance policy, the insured must show the issuance and delivery of the policy, payment of the premium, a loss caused by a risk insured against, and notice and proof of loss to the insurance company. The proof of loss must give the insurance company adequate data from which it can determine its liability under the policy. The proof of loss must be in writing and set forth the injuries or damage sustained. A valuation of the loss should also be provided.

 

An insured can take a damaged automobile to an insurance company’s adjuster for an estimate of repair. The insurance company will then submit a proof of loss to the insured based on the adjuster’s contract for repairs. An insurance agent who issues an automobile insurance policy has no authority to waive a written proof of loss. An insured should not rely on such a “waiver.”

 

Insurance coverage can be forfeited if an insured fraudulently misrepresents items in a proof of loss. This forfeiture is authorized by statute. The fraud must be a deliberate false assertion of facts in the proof of loss. An inflated valuation of a claim is not necessarily fraud.

 

The proof of loss should contain whatever is required by the insurance policy. However, an insurance company cannot reject a written proof of loss because it does not contain a policy number or any other information that the insurance company already has. The failure of an insured to provide a proof of loss has been held to preclude recovery under the insurance policy.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc

DRUNK DRIVING EXCLUSION IN AUTOMOBILE INSURANCE POLICIES

Drunk Driving Exclusion in Automobile Insurance Policies

Drunk driving or driving while under the influence of alcohol or a controlled substance is illegal. Public policy does not permit a criminal to profit from a criminal act. Commonly, insurance companies include a clause in their automobile insurance policies that prohibit an insured from receiving damages for bodily injuries or death that occurred in an automobile accident caused by drunk driving. A drunk driving exclusion can be a separate clause in the policy or drunk driving could be excluded under the policy’s crime exclusion.

Whether one is attempting to obtain benefits from an automobile liability policy or a life insurance policy, it is important to determine whether state law considers death resulting from an insured’s having driven drunk accidental. The insurance policy exclusion should also be reviewed to determine whether coverage is barred if a death occurs while the insured is driving drunk or if the death was caused by driving drunk.

A growing number of states have decided that persons, who drive under the influence of alcohol or a controlled substance, are excluded from no-fault coverage. In those cases, blood samples, which would not be admissible in a criminal proceeding, may be admissible in a civil trial against the insured. While some states do not specifically exclude no-fault coverage for injuries incurred while driving drunk, an insured could be precluded from recovering personal injury protection benefits if injuries were occurred while the insured was committing a high misdemeanor or felony, for example, driving while intoxicated.

Drunk Driving Exclusions by Lista Legal

CONFLICT OF LAWS ISSUES IN MOTOR VEHICLE INSURANCE DISPUTES

Conflict-of-Laws Issues in Motor Vehicle Insurance Disputes

 

Motor vehicles, by the nature of their mobility, freely move among the states. Accidents can occur in an insured’s home state or another state. The laws of the states can differ on how they interpret the terms of an insurance policy. Which law should be applied is the subject of rules for conflict-of-laws or choice-of-laws decisions.

The inclusion of a choice-of-law endorsement in an insurance policy is helpful to the insurance company and the insured. The endorsement can show that the matter was considered by the parties to the insurance policy and that it was their intention that the laws of a certain state govern the terms of it. The use of a choice-of-law endorsement does not guarantee that a court will enforce it. If the insurance policy endorsement conflicts with a state public policy, a court may choose to determine which law should be applied without considering the endorsement.

If there is no choice-of-law endorsement, courts will determine which law to apply by considering the conflict-of-law rules of the state in which the court is sitting. Some states will apply the laws of the state in which the insurance policy was made. Other states will evaluate the relationship of each state to be claim before it. Some factors that are used are the place of contracting, the place of the negotiation, the place of performance, the location of the subject matter, the place of incorporation of the insurance company and the insured, and the residence or domicile of the parties to the court action.

A choice-of-law rule to apply the law of the state with the most significant contacts to a lawsuit could lead to a decision that the law of the state in which the court is sitting. For instance, an action for benefits under an accidental death policy issued by a car rental franchisee to a renter was governed by state A, not state B. The renter was a resident of state A. The franchisee was a state A corporation. The claim arose from an accident in state A. The only contact with state B was the delivery of the master insurance policy to the corporate office of the car rental company, which was a national corporation.

Motor Vehicle accident by Lista Legal

AUTOMOBILE INSURANCE PREMIUMS

Automobile Insurance Premiums

 

Insurance contracts, at their core, are papers that prove a promise by an insurance company to pay benefits under an insurance policy and the payment of money by an insured for that protection. The money paid by the insured is called a premium. The premium is made up of money paid by the insured to the insurance company to cover the insured risk and the administrative costs. Without the payment of a premium, no contract of insurance exists between the insurance company and the insured.

Most automobile insurance policies cover six-month periods. The insurance company will set a date by which the premium is due. Depending upon the agreement between the insurance company and the insured, the policy could go into effect before a premium is paid or the full premium must be prepaid before the insured is covered. Some insurance companies will even allow monthly payments of premiums. It is important to know which scenario applies. If no premium is paid, no contract of insurance exists. If a first installment of a premium was paid, but the second was not, an insurance company can cancel the automobile insurance policy for nonpayment of the premium.

The general rule is that an insured’s failure to pay premiums by the due date results in a lapse of coverage. If an insurance company cancels a policy for nonpayment of premiums, it can recover the premiums earned to the date of cancellation. Insurance protection will continue until the date of cancellation despite the fact that premiums had not been paid to that date.

The time to pay a premium can be extended by the insurance company or by a statute. The insurance company can provide the extension, called a grace period, in the policy, in a separate writing, or even in an oral statement. The grace period will keep the policy in full effect after the missed premium’s due date, if the insured makes the premium payment before the end of the grace period. An insurance broker or agent does not have authority to extend the time for an insured to pay a premium. However, a broker’s agreement to extend the payment time might be enforceable against an insurance company depending upon the principles of agency and the facts of the case.

Automobile Insurance Premiums by Lista Legal

MALICIOUS PROSECUTION

People who attempt to redress their grievances against others in court sometimes bring actions against the wrong people by mistake or intentionally. In certain circumstances, a defendant may recover against the plaintiff who improperly brought him to court.

Who may be liable

A plaintiff who improperly initiates civil proceedings in his own name or in the name of a third person to enforce a claim of his own or a claim of the third person may be liable for malicious prosecution.

A defendant may also be liable to a plaintiff for malicious prosecution if he improperly files a counterclaim to the plaintiff’s cause of action because a counterclaim is an initiation of civil proceedings.

A plaintiff who procures the initiation of civil proceedings is just as liable as the one who initiates them.

Also, a person who continues a civil proceeding for an improper purpose after he has learned that there is no probable cause for the proceeding becomes liable as if he had then initiated the proceeding.

Conduct giving rise to liability

A defendant must show that a plaintiff initiated civil proceedings against him without probable cause and for a purpose other than securing the proper adjudication of a claim and that the proceedings, except when they are ex parte, terminated in favor of the defendant.

A plaintiff has probable cause to initiate civil proceedings if he reasonably believes in the existence of the facts upon which the claim is based and either correctly or reasonably believes that the claim may be valid or believes it is valid in reliance upon the advice of counsel. A decision in favor of the plaintiff is conclusive evidence of probable cause, but a decision adverse to the plaintiff is not evidence of lack of probable cause. A withdrawal of civil proceedings by the plaintiff or their dismissal because of his failure to prosecute may or may not be evidence of lack of probable cause, depending upon the circumstances.

A plaintiff institutes civil proceedings for a purpose other than securing the proper adjudication of a claim if he is aware that his claim is not meritorious, if he begins the proceedings because of hostility or ill will, if he begins the proceedings to deprive the defendant of a beneficial use of his property, or if he is attempting to force a settlement that has no relation to the merits of the claim. A defendant has an improper purpose if he files a counterclaim merely to delay the plaintiff’s claim.

Civil proceedings may be terminated in favor of a defendant by the favorable adjudication of the claim, the withdrawal of the proceedings by the plaintiff, or a dismissal of the proceedings because of the plaintiff’s failure to prosecute. If an appeal is taken, the proceedings are not terminated until the final disposition of the appeal.

Damages

A defendant may be entitled to recover damages for the harm to his reputation, emotional distress, the harm caused by any arrest or imprisonment, dispossession from the use of his land or things, the expenses for his defense, and certain monetary losses caused by the proceedings.