Photo via Wikimedia Commons
Photo via Wikimedia Commons

By Peter Doody

A new law going into effect on Jan. 1, 2017, will substantially increase the value of California personal injury claims brought by undocumented immigrants. This law will cost the casualty insurance industry underwriting California businesses, municipalities, hospitals and school districts untold millions of dollars.

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Before this piece of legislation, for the past 30 years, claims for lost earnings were based on the home country of undocumented individual instead of the United States. Almost always, that particular wage scale is substantially less than here in America. That ruling was established by California trial courts based on the 1986 case of Rodriquez v. Kline.

The practical effect of this rule was plaintiff’s counsel simply waiving any claim for lost wages in cases where the plaintiff was an undocumented person. The recovery based on the home country wages was modest and not worth pursuing because the jury would then become aware of the undocumented status of the particular plaintiff which could be prejudicial.

Defense counsel for the past 30 years had the ability to inquire through the discovery process about the citizenship status of the plaintiff. Some undocumented individuals would forgo their lawsuit rather then affirm under oath their undocumented status. This new law now bars defense counsel from even asking about the citizenship of the plaintiff.

This bill that changed this, known as AB 2159, was sponsored by Assemblywoman Lorena Gonzalez from San Diego and supported by the Consumer Attorneys of California and the Mexican American Legal Defense and Educational Fund. It was recently signed into law by Gov. Jerry Brown in August and is codified at Evidence Code 351.2.

It’s impact will be major in California, the leading state of residence for undocumented individuals, according to the Department of Homeland Security.

The majority of personal injury cases settle before trial. This new law will increase the settlement value of all personal injury claims brought by undocumented individuals because now the alleged wage loss will be based on California wages versus the much lower home country wage scale. This is true even if the undocumented person was not employed at the time of the accident since California law allows recovery for loss of future earning capacity.

The net effect of newly enacted Evidence Code 351.2 is an increase in costs to the casualty insurance industry — by millions of dollars — to resolve California personal injury claims brought by undocumented persons.

Peter Doody is a partner with Higgs Fletcher & Mack specializing in the defense of cases brought against product manufacturers, transportation companies, and premises owners. He has extensive jury trial experience and is a member of the American Board of Trial Advocates.