On-Duty Vehicle Accidents

By Mark Peacock, Esq. and Megan Bartlett, Esq.

You are involved in an on-duty auto accident and are injured. The other driver is at fault. So, what do you do? You have three options to pursue:

1. You file a workers’ compensation case;
   1. This will cover your loss of work hours and some loss of income, but not any loss of overtime. (You will NOT get any compensation for the pain and suffering, loss of promotion or in extreme cases loss of employment requiring a disability retirement preventing and limiting future employment earnings).
2. You file a civil case against the other driver;
   1. This is how you recoup your financial loss of overtime income, pain and suffering, loss of future promotion or employment.
3. You file a claim with your own personal insurance which may very well provide you coverage.
   1. This claim will allow you to obtain financial loss for claims that exceed the other driver’s lower coverage limits or for those drivers with no insurance coverage. (Certain time requirements and other restrictions when filing in conjunction with claims one and two above may apply. Please seek the advice of legal counsel prior to filing your claim to select the best options for your individual case).

In some cases, all three of these may be available to you. Don’t lose money you and your family may be entitled to!

Here is how to do it:

1. File a Workers’ Compensation Case

You are in an on-duty auto accident and the resulting injuries automatically qualify you to pursue a workers’ compensation claim. Your employer (supervisor) provides the necessary paperwork for you to fill out which opens a workers’ compensation claim. If approved, you then begin to receive medical treatment and your salary will be paid by workers’ compensation 4850 time payment, etc. Remember: workers’ compensation only covers medical treatment and your base salary while you are off work. It does not compensate you for the following types of losses: loss of earnings, overtime pay, vacation/sick time burned, pain and suffering, your spouse’s loss of consortium, etc. In order to receive compensation for those types of losses, you must file a claim against the other driver.

2. File a Civil Case Against the “Other Driver”

Presumably, the “other driver” has insurance and you can find this out by looking at the first page of the traffic collision report. That person’s insurance is available to compensate you for losses you cannot recover in workers’ compensation (i.e. loss of earnings, overtime pay, pain and suffering, etc.). Even though you have a workers’ compensation claim going forward, you should also file a civil claim against the other driver. Do not delay.

Filing a lawsuit against the other driver right away lets you become the “lead dog” and lets you set the pace and tone of your claim. The primary reason to file right away is to find out how much insurance the other driver has (or perhaps they have none at all!). In California, the minimum amount of insurance that a driver must carry is $15,000. This is one of the lowest amounts in the country. This amount rarely covers the losses incurred in accidents. This will become important to you and your family as days pass by (especially if you are off duty due to the accident). There is no real reason to delay filing a lawsuit (even with a workers’ compensation claim simultaneously going). The reason is simple: a civil claim provides compensation for damages which you cannot and will not recover in workers’ compensation – especially in severe cases with long term injuries causing loss of promotion or loss of employment requiring a disability retirement preventing and limiting future employment earnings.

3. File a Claim with Your Own Personal Insurance Using Your Uninsured/Underinsured Motorist (UM/UIM) Coverage

Often times, that other driver will be an “underinsured motorist” (UIM) – which means they have insurance but just not enough to cover your injuries and/or damages. An underinsured driver or motorist is very common. Another possibility: the other driver might be an uninsured motorist (UM) and have no insurance to cover your injuries and/or damages – also very common. This is where you can protect yourself (and your family) by making sure you have the highest limits of UM/UIM coverage you can afford (note: it is very inexpensive). Having UM/UIM coverage means you are insuring/protecting yourself (and your family) against other negligent drivers who either don’t have insurance or don’t have enough insurance.

If the other driver is uninsured or underinsured, then you look towards your own insurance policy for compensation. At this point, you make a demand for your uninsured/underinsured motorist coverage (UM/UIM) on your own policy.

Even if you were injured on duty while driving a department vehicle, your UM/UIM coverage will cover you.

(Certain time requirements and other restrictions may apply when a claim or lawsuit is filed in conjunction with claims one and/or two above. Please seek the advice of legal counsel prior to filing your claim to ensure selecting the best options for your individual case).

Benefits of UM/UIM Coverage

UM/UIM coverage has many benefits (too many to list here). However, here are some highlights: first and foremost, it is very inexpensive and highly valuable (you really get your money’s worth). Filing a UM/UIM will not cause your rates to be raised nor will it result in your carrier dropping you. We get these types of concerns presented to us all the time. While coming from an honorable spot, they are nevertheless misplaced. No need to worry – you are paying for the coverage and you should use it. Plus, don’t feel bad for your insurance company… believe us, they take care of themselves!

Additional benefits of UM/UIM claims: are generally higher recoveries; are paid faster; have nowhere near as much litigation; and ultimately, have a higher value to you (their insured). It’s your own insurance company… you are their insured. What that means is they will treat you better than the insurance company of the other driver. Fun fact: Your employer is not entitled to reimbursement from your UM/UIM recovery (i.e. they can’t get any of it – no liens!).

Additional benefits of UM/UIM include not just on the job benefits. It applies anywhere/everywhere. You actually don’t have to be in a vehicle. You could be getting into your car, pumping gas, on a skateboard, on a bike, etc. while hit by an uninsured or underinsured vehicle and coverage applies. It also applies not only to you but to family members who live in the same house, passengers, etc.

Amount of Recovery with UM/UIM Claims

If you are hit by an uninsured driver while on duty, you can recover the difference of your own UM policy limit and the amount paid by workers’ comp for your claim. If you are hit by an underinsured driver while on duty, you can recover the difference of your UIM policy limit and amount paid by workers’ comp plus what you put in your pocket in your case against the other driver.

If you are hit by an uninsured driver while you are off duty, you can recover up to your own UM policy limit. If you are hit by an underinsured driver while you are off duty, you can recover the difference of your own UIM policy and the other driver’s policy limit.

To better illustrate how it works in real life, here are a couple examples:

EXAMPLE: On-Duty Traffic Collision with an Uninsured Motorist

Facts: Officer injured on duty. He is off work for 3 months. Employer pays $75,000 in benefits (medical treatment, 4850 pay and permanent disability payout) and officer goes back to work after the 3 months.

Scenario 1: the driver of the vehicle has no insurance (i.e. is “uninsured”) and you have UM/UIM limits of $50,000. In that scenario, you don’t receive anything, because your uninsured (UM) limits are less than the workers’ comp benefits paid.

Scenario 2: the driver is uninsured; however, you have uninsured (UM) limits of $100,000. In this scenario, you may recover up to $25,000.

Scenario 3: the driver is uninsured and you have uninsured (UM) limits of $500,000. In that scenario, you may recover up to $425,000.

EXAMPLE: On-Duty Traffic Collision with an Underinsured Motorist

Facts: Officer injured on duty. Off work for 3 months. Employer pays $75,000 in benefits (medical treatment, 4850 pay and permanent disability payout) and Officer goes back to work after the 3 months. Other driver has a $15,000 policy limit. Officer nets (pockets) $5,000 in case against other driver.

With this scenario, an Officer with a $100,000 UIM policy limit would recover an additional $20,000. Here is how: the Officer’s $100,00 UIM limit minus $75,000 in workers’ comp benefits minus $5,000 in the Officer received from underlying case totals $80,000 in benefits/monies received.  The Officer would then be able to collect the difference of his $100,000 policy limits minus the $80,000 in benefits/monies received which means an additional $20,000 for the Officer to recover.

Conclusion

When involved in an on-duty accident, you have 3 options to collect compensation for your losses:

1. File a workers’ compensation case;
2. File a civil action against the other driver; and
3. File a claim with your personal auto insurance (UM/UIM claim).

UM/UIM is a complicated area of law (especially when it involves a workers’ comp case!). This article only scratches the surface of the complexities involving UM/UIM cases. We encourage you to remember the takeaways above and contact us with any questions you may have.