Personal Injury Cases Against Family Members June 22, 2010

From time to time, a client suffers an injury due to the negligence of a family member.  These cases can cause emotional turmoil and can split families, though they need not do so. Whether a slip and fall at a sister’s home or a broken leg suffered in a car accident when a brother drove recklessly, negligence cases involving family members raise two questions:

• Can I sue a family member?
• Should I sue a family member?

Let me offer some guidance that you may want to consider.

For Insurance Purposes, Who is Family and Who is Not Family

Most insurance policies cover immediate family, but not extended family. Therefore, the person who is not a member of your household is viewed the same as a stranger by the insurance company.

The homeowner’s policy that my husband and I purchase covers both of us and our children against damage claims. Our policy does not allow an immediate family member to sue for damages. For example, if my fourteen-year-old son left out a rake and I tripped on the rake, I could not sue my son.

Our auto insurance covers all listed drivers (we currently list my husband, our eldest son and me). The policy covers any incident where one of us drives the car or another authorized person drives the car. While our New York auto insurance policy provides no-fault coverage and benefits and we have purchased extended medical coverage, no immediate family member can sue for damages beyond the no-fault and extended medical coverage.

Unless the insurance policy specifically says otherwise, my homeowner’s or motor vehicle insurance policy does not automatically cover anyone not part of our household. If such a person suffered an injury due to my negligence, that person could seek compensation for pain and suffering by suing me. It would not matter if the person is a stranger or my brother or mother.  In terms of the insurance policy, they are all treated the same.

If you have questions about your insurance coverage, you should contact your insurance broker or your insurance company.

Motor Vehicle Crashes Involving Family Members

If you suffer an injury in a car accident caused by a family member, you need to file a claim to qualify for New York’s no-fault auto coverage. No-fault will pay for your medical bills and property damage.  You have 30 days from the date of the accident to file the claim.

If you want to seek compensation for pain and suffering, then you will need to sue the family member who acted negligently and caused your injury. Understand, that when your family member is sued, the auto insurance company will provide a lawyer for their defense and the auto insurance company will pay for any damages awarded by a jury or negotiated as part of a settlement. That is why we purchase insurance coverage: to provide financial protection when we act negligently.

Suing a family member for damages is not personal. It does not mean you hate your family or want vengeance.  It is simply the only system we have for obtaining compensation.

Here is a sample car accident case where a man sued his brother:

A man I will call Robert rode as a passenger in a car driven by his brother, whom I will call Andrew. Andrew exceeded the speed limit and ran a red light. In making the turn, he drove too wide and hit a light pole. The crash injured Robert, who suffered a broken leg.

Robert filed a claim with Andrew’s insurance company and qualified for no-fault benefits that paid for his medical expenses. However, Robert’s injuries required surgery – to insert a metal rod in his leg – and extensive rehabilitation. He also missed work and lost money due to his lost wages. Robert needed compensation for the injuries he suffered, so he sued Andrew and we negotiated a settlement with the insurance company.

Robert and Andrew were close and remained close after the accident. Andrew understood that Robert was entitled to compensation and could only receive it by suing his brother. In fact, the insurance company provided the defense and paid the settlement. Andrew thought of it as Robert suing his insurance company.

Slip and Fall Cases and Premises Liability Cases Involving a Family Member

Just this week, I heard from a man who slipped and fell in his brother’s driveway and hurt his head, neck and back.  His sister-in-law and niece witnessed the fall and his sister-in-law told him that she had warned her husband (the man’s brother) to fix the driveway. In fact, her husband (the victim’s brother) had fallen there himself.

What should the man do?

First, he needs to take care of his medical needs. Second, he needs to file a claim with his brother and his brother’s insurance company. Filing a claim will enable him to get coverage for medical costs and will protect his rights. Do not assume that because you are related that your family’s member insurance coverage extends to you; it does not. If you fail to file a claim, you may lose any right to coverage or to pursue further damages.

In New York, you have a maximum of 30 days from the date of an accident to file a claim. You can file a claim yourself, though if you seek damages, you would be better served to have an attorney file the claim on your behalf. To file a claim, write a letter addressed to the owner of the home. State that you were injured in the incident and give the date, approximate time and location. State that you were injured due to the negligence property owner and that you want to file a claim.

When you file a claim, the insurance company will contact you, collect some information and tell you how to receive medical coverage. Again, if you want to seek compensation beyond medical bills, you would be wise to retain an attorney to file the claim on your behalf and for all communications to go through your attorney.

If you want to collect damages for your pain and suffering, you will need to sue the family member whose negligence caused the injury. In the case outlined above, the man will need to sue his brother. As with a car crash caused by a family member, the family member’s homeowner’s insurance company will provide a lawyer and will pay for the damages.

“If I Sue My Brother, Will He Hate Me?”

All members of a family need to understand that when it comes to insurance coverage, filing a claim or a lawsuit is not personal. Under our system, the only way to receive compensation from an insurance company is to file a claim.  If you want to collect damages for pain and suffering, the only way to do so is to file a claim and, if you cannot negotiate a settlement, file a lawsuit. Keep these thoughts in mind:

• We purchase homeowner’s insurance and auto insurance to provide coverage in case of an accident. That coverage pays out when someone files a claim or a lawsuit against us.
• The insurance coverage would make a payment to a stranger, so why should it not make a payment to a family member?
• Filing a claim or a lawsuit against a family member is not an act of war or a way to seek vengeance. Filing a lawsuit may be the only way to receive compensation for your injuries.
• If a family member files a claim or a lawsuit against you, do not take it personally. It is not an attack; it is the only way your family member can receive compensation for an injury.
• Remember, the money will not come from your pocket but will be paid by your insurance company.
• If a visitor fell on your property due to a defect or some negligence, you would understand if the visitor filed a claim for damages. Why would you deny that right to your family member?

 A Word of Caution: Do Not Conspire Against the Insurance Company

As an attorney, I do need to caution that any statement you make to a family member could wind up in court and can be used against you.

You also may not conspire with a family member against an insurance company. You cannot make up evidence or hide evidence. You cannot “get your stories straight” or jointly prepare what you will say to the insurance company. You cannot rehearse your stories.  You cannot arrange for a family member to undermine the insurance company. Insurance companies rightfully look out for fraud and, if they suspect fraud, not only will they deny your claim, they may also seek criminal penalties.

The best advice? Tell the truth. Do not embellish your story. Do not work with your family member to prepare your case. Enjoy your relationship with your family, but do not discuss this case until after it is resolved.

I hope you found this information helpful. If you or a loved one has been hurt due to the negligence of another, you may want to consult a New York personal injury attorney. I would be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me. You can also visit my website or read more on my blog, New York Law Thoughts.  

Carol L. Schlitt
New York Personal Injury Attorney
www.SchlittLaw.com
1-800-660-1466
Carol@SchlittLaw.com

This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.