Related Practices

Sixteen, Unlicensed and Still a Permissive User

Remember California Prop 213? It's important to do so when settling claims brought against your insured by drivers without liability insurance or those driving under the influence of alcohol or drugs because they are forbidden from obtaining non-economic damages like pain and suffering.

In a recent case, the Court of Appeal ruled that an unlicensed driver with no insurance of her own (of course, why would an unlicensed driver have insurance!!) could indeed be a permissive user under an automobile policy covering the vehicle owned by her dad. Just because she did not have a license and could not legally drive did not, in the Court's mind, mean dad could not give her permission to drive the car. Therefore, Ms. Landeros, since she was not uninsured at the time of the accident, was entitled to recover the jury award of $21M in non-economic damages. See, Landeros v. Torres, a decision filed May 24, 2012.

The Court noted that the insurance policy did not have a licensure requirement as part of the definition of permissive user (and it questioned if one would even be valid ) and that it was undisputed that Landeros was given permission to use the vehicle at the time of the accident. The defendant admitted to liability and the case was tried as to damages only, reserving to the appellate court whether an award of non-economic damages was correct.

The Court also noted that Prop. 213 has no license requirement. As a result, it affirmed the trial court's ruling and the award of non-economic damages to the Landeros.

As a reminder, Prop. 213 should always be on a claims professional's checklist in any claim involving an automobile. Here is a basic review:

  • Prop. 213 prevents recovery of non-economic damages if the driver was convicted of driving under the influence of alcohol or drugs (unless your at fault insured was also driving and was convicted of driving under the influence of alcohol or drugs);
  • Prop 213 prevents recovery of non-economic damages if the claimant owned the vehicle and it was not insured or was the operator of the vehicle (the claim in this case) and the vehicle was not covered by insurance.
  • Prop 213 does not apply in a wrongful death case unless an heir (and only to that heir) was the owner or operator of the vehicle (and uninsured) but does apply if the driver is specifically excluded under an automobile liability policy by name.
  • The statute also applies to claims arising out "use" of the vehicle, which includes stopping, parking, and exiting the vehicle, or the claim that a roadway condition was a cause of the accident.
  • Punitive damages are recoverable regardless of whether a claimant would be barred from recovery of non-economic damages.

Landeros v. Torres, California Court of Appeal, Fifth Appellate District, Case No.: F060251



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