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If I were a passenger in a car and the family member was at fault for causing the accident, can I make a claim and get insurance money?

Passenger Injuries

The short answer to this one, in most cases, is yes. But you know we are lawyers, so we can’t possibly stop with a one word answer.  Doesn’t seem right.  And you really don’t expect it.  The law of Pennsylvania does not recognize the familial relation as a bar or impediment to a liability lawsuit.  A liability lawsuit in this context means suing someone in court for his or her negligence, as opposed to suing your own insurance company. Therefore, you generally can sue a relative for his or her negligent driving, regardless of how close or distant the family member may be to you. This doesn’t mean you have to sue them, in the sense that the case could be settled before a lawsuit is filed.

Most people in this scenario ask us to try to settle before filing suit and some refuse to file suit but will allow us to make a claim.  Making a claim means trying to settle after medical treatment has wound down and prior to filing a lawsuit. You, the client, ultimately decide whether to settle or not.  So you may choose to take a little less compensation to avoid having to file a lawsuit (litigation) against a family member, although effectively, the lawsuit is really against the family member’s insurance coverage (because you wouldn’t be suing if there were no insurance coverage).

More specifically, if your family member were negligent in operating a car, then he or she, just like anyone else, can be sued.  Of course, you don’t want to sue your Dad or Mom or brother.  The insurance company knows this and will leverage it.  However, a pre-litigation settlement offer may still be made once the carrier is fully satisfied there is no fraud.  Recorded statements may have to be given to settle pre-litigation (without the need of filing a lawsuit).

These kinds of intrafamily claims often get referred to SIU within the insurance carrier.  No, not the SVU on Law and Order.  This is the carrier’s way of saying, “We smell fraud here—so we are putting a team of investigators on it.  How do we know your Dad didn’t crash the car on purpose so as to allow you to make a claim under the bodily injury liability coverage?”    SIU does not necessarily mean anything whatsoever as to affecting the value or legitimacy of the claim, so long as the accident was genuinely due to negligence (a mistake) and not done intentionally or as part of a scheme.

Now remember, earlier I said “in most cases.”  There are two possible exceptions to the above rule, where generally, a family member can bring a negligence claim against any other family member if the latter acted negligently.

The first is the existence of a “guest statute”—if it exists— in a particular state.  These are old fashioned statutory laws that existed long before we at Ostroff Injury Law were born.  Well maybe not long before, but before.  A little bit before.  Wikpedia has a pretty good definition for this type of law.  Here it is:

“A guest statute is a term used in the law of torts to describe a statute that makes it more difficult for a passenger in an automobile to recover damages from the driver for injuries received in an accident resulting from ordinary negligence on the part of the driver. Instead, passengers are limited to suits based on gross negligence, recklessness, or intentional misconduct. The statute may also place a cap on the damages to be awarded, or limit damages to compensation for actual physical injuries.

The purpose of the guest statute is both to protect drivers from frivolous litigation and to protect insurance companies from collusive and fraudulent suits (wherein the passenger sues the driver in order to collect from the driver’s insurer). For the same reason, some states also passed aviation guest statutes, which limit the liability of non-commercial airplane passengers. However, guest statutes now appear to have been abolished in all states except Alabama (Ala. Stat. Sec. 32-1-2).”  Wikpedia.

The good news, is we don’t have that kind of statute in Pennsylvania, just as we no longer have contributory negligence.  But beware of such a statute in case you ever move to Alabama.

The second, and final, exceptions to the general rule of being able to make a personal injury claim against a negligent family member is something called the “regular use exclusion,” and a similar doctrine known as the “UM and UIM household exclusion.”  These do not limit your eligibility to bring a claim against a family member who drove a car negligently and injured you, which is known as a liability or third party claim.  Absent fraud, liability coverage is payable under the family member’s bodily injury automobile liability coverage to you.  These clauses comes into play in other situations and will be discussed in detail in a future article.

In a nutshell, for now, you generally can’t recover underinsured motorist benefits from your cars insured at home if you were driving another car, such as a work vehicle, that you regularly used but did not insure for the same type of coverage.  You never insured the regularly used vehicle for the coverage you are trying to get under your personal auto policy.  That’s the regular use exclusion.

The other exclusion, the household exclusion, means if you were injured in your Ford due to your wife’s negligent driving, you can recover under her auto liability policy for the Ford.  But you cannot then recover underinsured motorist benefits under your XXX policy on another vehicle, a Chevy, in your household.  This is the household exclusion.  Your Ford can’t qualify as an underinsured motor vehicle, cause it is a household vehicle, and thus, you cant get the underinsured coverage (which you have) on the Chevy—all because you were in the Ford and not in a car your family didn’t own, like a neighbor’s car.   But listen, here’s the most important thing to remember:  Don’t text and drive no matter what and drive safely, every time.  The one time you drive distracted is the time the accident will occur.

Read more about passengers of commercial vehicles.

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