If you’ve been injured in a car accident, filing a claim against the negligent driver with his or her insurance company can be an intimidating process. Insurance company adjustors and lawyers can manipulate you into making inconsistent or damaging statements that hurt your case. They can also seriously undervalue your claim and make you feel like whatever they offer you is the best result you are going to get. If you don’t have an attorney representing you, you can count on being treated poorly by the insurance company.

It’s hard enough dealing with these insurance company tactics, but if your English ability is limited or if your immigration status is uncertain, the stress and anxiety of filing a personal injury claim or lawsuit becomes much greater. Undocumented immigrants may understandably fear that involving themselves in a lawsuit could result in their undocumented status being made known, subjecting them to deportation. Insurance companies and negligent drivers who suspect a plaintiff may be undocumented could use scare tactics to get them to drop their lawsuit or accept a quick settlement to put the matter to rest, even if the offer is far lower than what the claim is actually worth.

California legal precedent used to mean lower damage awards for undocumented immigrants

For the past thirty years, a person’s undocumented status did in fact hurt them in a personal injury lawsuit in California. Leaving aside the threat of deportation, merely being subject to deportation would change how a judge or jury calculates damages.

Normally, a person injured by another’s negligence can recover compensation for any loss of future income the injury has caused them, for instance if they became disabled or can no longer perform the same job they had before the accident.

In a 1986 California Court of Appeals opinion, Rodriguez v. Kline, the court held that a plaintiff who is in the country illegally is entitled to be compensated for personal injuries based upon the person’s projected earning capacity in their country of lawful citizenship. The reasoning behind this rule is that since the person could theoretically be deported at any time, their future earnings should be calculated in their home country where they may be deported to. With lower wages in Mexico and central America compared to the United States, this rule had the effect of significantly lowering damage awards to undocumented immigrants in a personal injury negligence claim.

A 2016 California law changed the legal landscape for undocumented immigrants

The method of calculating earning capacity established in Rodriguez has now gone by the wayside with the passage of AB 2159 in the 2015-16 legislative session of the California Assembly. This law, signed by Governor Brown on August 17, 2016, adds a new section 351.2 to the California Evidence Code, which reads: “In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.”

According to the bill’s author, Assemblywoman Lorena Gonzalez Fletcher, not only was the Rodriguez case being used to calculate future earning capacity at a lower rate, but it was also being unjustly applied to the recovery of future medical costs by estimating those figures in the plaintiff’s home country as well. Additionally, it was widely believed that the threat of bringing the plaintiff’s immigration status into court proceedings could and did often result in the plaintiff dropping the case altogether for fear of deportation.

Palmdale personal injury attorney Paul Kistler describes how this fear is largely unjustified with the new law

Palmdale personal injury attorney Paul Kistler explains how personal injury victims are protected with the change in law. “Prior to 2016, a plaintiff’s immigration status could be brought into court since it was deemed relevant in determining damages in a civil suit. Now, however, a person’s immigration status is deemed “inadmissible” and “undiscoverable” in a personal injury case. Therefore, there is no reason or purpose for an undocumented plaintiff in a California civil court to disclose their status or have any anxiety that their legal status will be exposed or in any way used against them.”

Kistler stresses that undocumented workers are legally protected in California workplace injuries as well

Similarly, California workers who are injured on the job should not be afraid to file for workers’ compensation benefits, even if they are undocumented. Attorney Kistler explains, “If undocumented workers are discouraged from filing claims for fear of a denial or reprisal from federal customs enforcement, the workers’ compensation system becomes useless.” Undocumented workers are specifically covered under California wage and hour laws and have the right to file wage claims, CAL/OSHA complaints and workers’ comp claims for medical benefits.

Paul Kistler is available for further comment and information by contacting 661-206-6990 or at www.kistlerlawfirm.com.