In August, California passed a law that prevents an insurance company from looking into a victim’s immigration status when filing to receive lost pay benefits. (Jessica Kwong/2014 S.F. Examiner)

In August, California passed a law that prevents an insurance company from looking into a victim’s immigration status when filing to receive lost pay benefits. (Jessica Kwong/2014 S.F. Examiner)

Insurers can’t use immigration status

This week’s question comes from Martin G. from the Mission who asks:

Q. “I got hurt in a car accident. It was not my fault I was a passenger. My friend did nothing wrong. His insurance company has paid my medical bills, but I was told by a lawyer that I could not collect my lost pay because I did not have papers. I was told that I could only get what they would pay me in Mexico and not what I was actually paid here in California.”

A. Martin, it’s bad enough to be injured in a car crash, having medical bills and losing time from work. To learn that someone is trying to take advantage of your legal status to cheat you out of your lost pay is wrong. Your lawyer was providing you information based on the status of the law as it existed last month. A Court of Appeals had held that undocumented people working in the United States were limited to lost wages for the period of their disability based on the wage rate in their own country. Insurance companies, in a never-ending effort to undercompensate injured people, had argued that people who were in the United States without proper documentation could not seek to claim lost wages because, legally, they were precluded from working in the United States.

In February, Assemblymember Lorena Gonzales introduced Assembly Bill 2159 designed to cure the injustice you described. The bill received strong support from the Consumer Attorneys of California, the association of trial lawyers, such as myself, who fight to keep the legal system fair for all Californians. Throughout the year the bill wound its way through numerous committees in both the state Senate and Assembly having its final vote Aug. 1. The bill read, in relevant part, as follows: “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.”

The effect of this law is twofold: 1) defense attorneys, working for insurance companies, cannot pry into the immigration status of an injured party during the fact-finding part of litigation (called discovery); and 2) any evidence that they may have obtained about the immigration status of an injured plaintiff cannot be used at trial to claim the victim’s wages should be reduced to those that they would have earned in their home country. The bill was signed into law by Gov. Jerry Brown on Aug. 17 and now can be found in the laws of the state of California in Section 351.2 of the Evidence Code.

Go back to your lawyer and inform him of this recent change in the law so he can make sure that you do not get cheated out of the full measure of your actual damages.

This law expands California’s progressive fair-employment laws which are contained within California Labor Code Section 1171.5. Section 1171.5 reads as follows, “All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.”

For the purposes of enforcing state labor and employment laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status.

Martin, as a lawyer who’s practice includes representing all people, including those who are undocumented, when they are injured or denied their basic employment rights, I am proud to state that we live in a state which values the rights of all people to be treated equally when they have been harmed or discriminated against regardless of their immigration status.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to B. Dolanlaw

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