Last updated
By Ron McMinn, Esq. | Last updated November 10, 2026.
Read this article in Español.
If a drunk driver in a rental car hurts you or kills someone you love, it is easy to assume that the extra liability coverage sold at the rental counter will pay the claim. A November 6, 2026, decision from the California Court of Appeal shows why that assumption can fail. The opinion is unpublished. Under California Rules of Court, rule 8.1115, unpublished Court of Appeal opinions generally may not be cited or relied on as precedent. We discuss it only as an illustration of how one court read one excess policy, not as a rule that controls your case.
The case is Ace American Insurance Co. v. Superior Court, Fourth District, Division Two, case No. E088415, arising from San Bernardino County Superior Court case No. CIVSB2200819. We are not naming the people involved beyond that caption. The rest of this article explains the layers of coverage that often appear after a rental-car crash, and why your own uninsured and underinsured motorist coverage can matter more than the brochure at the counter.
Our guides to who pays after a California DUI crash or wrongful death and to passengers hurt by an impaired driver cover related questions.
What the Court of Appeal decided, as an illustration
According to the opinion, a renter in California selected optional additional liability insurance through Avis in February 2016. Ace American Insurance Company provided that extra coverage. The renter later drove the rental car while under the influence of alcohol and collided with another person, causing that person’s death. In November 2016, the renter was convicted of vehicular manslaughter while intoxicated.
The victim’s parents filed a wrongful death action against the renter and Avis. In 2020, a surviving parent obtained a default judgment against the renter of approximately $1.9 million. Rights under that judgment, and the renter’s rights against Ace and Avis, were later assigned. In 2022, a family member sued Ace and Avis for, among other claims, breach of contract, breach of the implied covenant of good faith and fair dealing, and recovery of the judgment under Insurance Code section 11580. The claims against Ace rested on the allegation that the Ace policy provided primary automobile liability insurance to the renter.
Ace argued that its policy contained an intoxication exclusion and that the exclusion is valid in an excess policy. The Court of Appeal agreed with Ace and directed the trial court to grant summary judgment for Ace. The court held that the Ace policy was an excess policy, titled an “Excess Rental Liability Policy,” and that it promised to pay sums in excess of those payable under the “Underlying Protection.” The policy defined “Underlying Protection” to include an approved program of self-insurance that meets minimum motor vehicle liability requirements. It was undisputed that Avis had an approved self-insurance program. An Avis risk manager’s declaration, as described in the opinion, said that in 2016 that self-insurance provided primary coverage of $15,000 per person and $30,000 per collision, the then-required California minimum, to California renters who purchased the extra coverage.
Because the court treated the Ace policy as excess coverage sitting above that self-insurance, it held that the intoxication exclusion was enforceable. The opinion explains that Insurance Code section 11580.1 lists the exclusions permitted in a primary automobile policy, and that list does not include driving under the influence. An excess policy is not subject to those same limits on exclusions when it requires underlying insurance or a retained limit of self-insurance equal to or greater than the minimums in Vehicle Code section 16056. The court relied on that published rule from Hertz Corp. v. Home Ins. Co. (1993) 14 Cal.App.4th 1071. The unpublished 2026 opinion then applied that rule to the Ace policy and concluded that the policy did not cover the $1.9 million judgment.
Primary coverage and excess coverage are not the same thing
Primary coverage is the first layer. It generally pays from the first dollar of covered liability, up to its limits. Excess coverage is a higher layer. It generally pays only after the underlying protection has been used up, and only if the loss is covered by the excess policy’s own terms.
Optional extra liability insurance sold at a rental counter is often written as excess coverage. In the Ace illustration, the renter paid for additional liability insurance, and the rental paperwork described that product as protection under an excess automobile policy. The rental agreement also said that, for rentals beginning in California, the agreement itself did not afford the renter insurance or protection against liability. The family argued that this disclaimer left the Ace policy as the only insurance, so it had to be treated as primary. The Court of Appeal rejected that argument. It said the Ace policy was excess to qualifying self-insurance, not “excess to nothing.”
That distinction decided the exclusion question. A primary auto policy in California cannot use every exclusion an insurer might prefer. An excess policy that sits above a qualifying underlying layer may be allowed to use a drunk-driving exclusion that a primary policy could not.
What California’s minimum liability limits are
The 2016 crash in the Ace illustration arose when California’s minimum automobile liability limits, as described in the opinion, were $15,000 for bodily injury or death to one person and $30,000 for bodily injury or death to two or more persons. Those figures are far below the cost of a serious injury or a death claim. A $1.9 million judgment makes that gap obvious.
The current text of Vehicle Code section 16056 still recites those older figures, and then requires higher minimums for a policy or bond issued or renewed on or after January 1, 2025: at least $30,000 because of bodily injury or death of one person in one accident, at least $60,000 because of bodily injury or death of two or more persons, and at least $15,000 for property damage. Even those higher minimums can be exhausted quickly in a case with lasting injuries or a fatality.
A rental company’s approved self-insurance program can satisfy the company’s financial-responsibility obligation at those minimum levels. That layer is not the same thing as a million-dollar extra policy sold at the counter, and it is not a promise that every exclusion in the extra policy will be ignored.
Why your own uninsured and underinsured motorist coverage matters
If the driver’s available liability coverage is excluded, missing, or too small, the injured person may be left looking at a minimum-limits layer, a judgment that an individual cannot pay, or both. That is when your own uninsured motorist coverage and underinsured motorist coverage can become the practical source of recovery, subject to the terms of your policy.
Uninsured motorist coverage may apply when the at-fault driver has no liability coverage that actually pays. Underinsured motorist coverage may apply when there is some liability coverage, but it is not enough to cover the harm. Whether a drunk-driving exclusion on an excess rental policy leaves the driver “uninsured” for purposes of your own policy is a coverage question that depends on the facts and on your contract. The point is not to guess. The point is to report the crash to your own insurer promptly and to have counsel review every layer, including health coverage and any medical-payments coverage, instead of relying on the counter product alone.
A criminal case against the driver is not a substitute for a civil recovery. A conviction can matter to the facts, but it does not by itself pay medical bills or support a family.
Practical steps after a crash with a rental car and an impaired driver
Get medical care and make sure a police report is prepared. Identify the rental company, the rental agreement, and any extra products the driver bought at the counter. Ask early which company claims to provide the first layer of liability protection and which company sold any extra coverage. Keep copies of correspondence. Do not assume that “additional liability insurance” means primary coverage without exclusions.
If you have your own automobile policy, report the crash even if you were a pedestrian, a passenger, or a driver in another car. Deadlines and notice provisions in uninsured and underinsured motorist coverage can be strict. Be careful with recorded statements. Opening a claim file is not the same as understanding which exclusion an insurer intends to raise.
Other layers can include the driver’s personal automobile policy, if one exists, the rental company’s required financial responsibility, optional extra coverage sold at the counter, and your own coverage. Each layer has its own terms. The Ace illustration is a reminder to read those terms instead of trusting the label on the brochure.
This opinion is not a shortcut to the answer in your case
California Rules of Court, rule 8.1115, says that an opinion of a California Court of Appeal that is not certified for publication or ordered published must not be cited or relied on by a court or a party in another action, except in the limited situations the rule describes. The Ace decision has not been certified for publication. Another court may reach a different result on different policy language, a different rental agreement, or different facts about the underlying protection.
The published Hertz decision remains available as a general explanation of why excess policies can carry exclusions that primary policies cannot. Whether a particular rental-counter product is primary or excess still depends on the words of that policy and on what underlying protection actually existed.
Talk with us
If you or someone you love was hurt by an impaired driver in California, including a driver in a rental car, Win Attorneys handles personal injury and wrongful death matters statewide from our Tustin office. See our articles on who pays after a DUI crash and on passengers hurt by an impaired driver. We speak Spanish and Vietnamese.
Call us at (657) 235-8097, reach us through our contact page, or start online with our intake form. Office: 17291 Irvine Blvd., Suite 210, Tustin, CA 92780.
Frequently asked questions
If a drunk driver in a rental car hits me, does the extra insurance bought at the counter always pay?
No. Extra liability coverage sold at a rental counter is often written as excess insurance, and an excess policy may contain a drunk-driving exclusion that a primary policy could not use. Whether that extra coverage pays depends on the policy language and on what underlying protection exists.
What is the difference between primary coverage and excess coverage?
Primary coverage is the first layer and generally pays from the start of a covered loss, up to its limits. Excess coverage generally pays only after the underlying protection has been exhausted, and only if the excess policy itself covers the loss.
Why does my own uninsured and underinsured motorist coverage matter in a rental-car crash?
If the driver’s liability coverage is excluded, missing, or too small, your own uninsured or underinsured motorist coverage may be the coverage that can actually respond, subject to your policy terms. Report the crash to your insurer promptly and have every layer reviewed.
Can I treat the November 2026 Ace American opinion as a binding rule in my case?
No. The opinion in Ace American Insurance Co. v. Superior Court, case No. E088415, is unpublished. California Rules of Court, rule 8.1115, generally prohibits citing or relying on unpublished Court of Appeal opinions as precedent. It is an illustration of how one court read one policy.
What should I do after a crash involving a rental car and an impaired driver?
Get medical care, make sure there is a police report, identify the rental company and any extra coverage sold at the counter, and report the crash to your own insurer. Do not assume that additional liability insurance is primary coverage without exclusions. Counsel can sort the layers.