This is a common question when working with an injured victim who was injured as a passenger in a vehicle that was involved in a car wreck. At first, it seems like a very simple question that has a very simple answer: the at-fault party. However, the facts of each case do not always play out that way, and for a few basic reasons such as:
- There were multiple at fault parties.
- The driver of the car they were in was at-fault.
- The accident was weather related.
- Alcohol or substance abuse was involved
- Does the victim have a UM/UIM policy?
There are other reasons, but these are some of the main examples of the situation being complicated. The most common reason is that there were multiple at-fault parties. For example, the driver of the car the passenger was in and the driver of the other vehicle were both negligent at the time the car wreck occurred. This can result in split payments between the two insurers. The insurers will have to work out the percentage of liability they are willing to accept on behalf of their insured and based on that percentage issue a check to the injured victim. However, getting to that point takes time and pressure from your attorney to get the insurance companies to hammer down a number on responsibility. This issue quite often leads to litigation because the two sides cannot come together or dispute liability all together while the victim suffers without compensation for their injuries.
Something that must be pointed out is that in almost all cases of multiple liability, the passenger is related to the driver, or is a friend of the victim. If it is a child injured in an accident where the parent is driving, no brainer: file a claim on the parent’s policy and the other driver. But what if it was your great-Aunt Sally? Best friend Tommy? Family get-togethers might be awkward for a while if you sue great-Aunt Sally’s insurance company, i.e., great-Aunt Sally, but the truth is that you have been injured and you or your child have medical bills that need to get paid.
Here is the thing: even if your health insurer pays the initial costs, they will place a subrogation interest on any recovery you get, so it is vital that you get the most recovery you can in order to pay off that subrogation interest. In addition to that, any providers that provided you care that the health insurer does not pay, and any amounts they do not cover from those providers, the providers will place a lien against you. This means that you will need to get enough money to cover the subrogation interest from your health insurer and the medical providers who have placed liens against your recovery. In other words, the less you get from the auto insurers, the less you will take home. Plus, a good attorney is going to negotiate with those lien holders and the health insurer to get them to take less money. That doesn’t mean they will take no money. But it is possible to negotiate.
And if anybody gives you any grief at the next family get together, just tell them your attorney did it.
The next few situations require far less time, so lets go over them quickly:
- If the driver of the car was the only driver at fault, you have to use their insurance. You can’t go after a driver of another vehicle who was not at fault. It just won’t work and its just uncouth.
- If there was alcohol or substance abuse involved, that will most likely not affect liability insurance coverage but it may so speak with a local attorney in your state if you have been injured by a drunk/drugged driver. In Texas, liability coverage should remain unaffected, and if you have UM/UIM coverage, that will be stacked on top if necessary.
- Weather related claims work a little different. These can either be no-fault or the drivers of the vehicles can be considered at-fault if there are any factors that show they were negligent, such as a citation for failure to maintain speed or control of the vehicle. The insurance companies will likely send out an accident reconstruction expert or some sort of specialized adjuster to take a look at the scene of the accident and reconstruct what actually happened. Based on that, somebody is usually still found to be at-fault, and that driver’s insurer will be liable.