Injured as a Passenger: Your Rights, Including Against Your Own Driver

Published July 10, 2013 · Injury Law Basics

You were riding home from a cookout in Kettering when the car you were in was hit broadside at an intersection. Now you have a fractured wrist, a concussion, and a stack of bills, and the driver who was taking you home is your brother-in-law. People in this situation call our office every week, and most of them start the conversation the same way: "I don't want to sue anyone I know." The good news is that Ohio law gives a passenger more options than almost anyone else in a crash, and using them rarely requires you to go after a friend's bank account.

Passengers are almost never at fault

Ohio uses a comparative-fault system. Under R.C. 2315.33, an injured person's own negligence reduces the recovery by that person's percentage of fault, and bars it entirely only if that person was more than 50 percent responsible. We explained how that math works in an earlier post on comparative negligence.

A passenger ordinarily has no share of fault to worry about. You were not steering, braking, or deciding whether to run the yellow light. Unless you did something unusual, such as grabbing the wheel or riding with a driver you knew was drunk, the fault in your case belongs entirely to one or more drivers. That matters because the single biggest fight in most crash cases, who caused it, is usually not your fight at all. Your claim is about what you lost.

You can claim against whichever driver caused the crash

Two drivers are typically involved in a collision. From a passenger's point of view there are three possibilities:

• The other driver was at fault. Your claim goes to that driver's liability insurance company, exactly as it would if you had been driving your own car.
• Your own driver was at fault. You have a claim against your driver's liability coverage. If your driver is a friend or family member, that is still the correct path, and we talk about the awkwardness of it below.
• Both drivers share fault. You can make claims against both policies. Ohio law apportions fault between the drivers, and you are entitled to collect your full damages from them together.

Passengers in the at-fault car sometimes assume they have no claim because "we were the ones who caused it." That is not the law. The driver caused it; you did not.

About claiming against a friend or relative

Here is the part that stops people. The claim is against the driver's insurance policy, not the driver. Your brother-in-law bought liability coverage precisely so that if he hurt someone, the insurance company would pay. You are the someone. He will not write a check, and in the ordinary case his policy's "cooperation" clause simply requires him to give a statement and answer questions.

Will his rates go up? The crash itself, and the claim for the damage to the other car, already triggered whatever rating consequences his insurer applies. Your injury claim rarely changes that picture. What a passenger's silence does change is who pays for your surgery and lost wages: you, instead of the company that collected premiums to cover this exact risk.

One more point for families. If you live in the same household as the at-fault driver, some policies contain exclusions for injuries to household members. Those exclusions must be read carefully, and they do not affect your other coverage layers. We review the actual policy language before giving anyone an answer.

The second layer: MedPay

Many Ohio auto policies carry medical-payments coverage, often $1,000 to $10,000, that pays medical bills for anyone occupying the insured car regardless of fault. As a passenger, you may be able to use the MedPay on the car you were riding in and, in some cases, the MedPay on your own household policy. It pays quickly, while the liability claim is still being investigated. We wrote about when and how to use MedPay in an earlier post; the short version is that it is there to be used, and using it does not reduce your injury claim.

The third layer: uninsured and underinsured motorist coverage

Ohio's minimum liability limits are low. A serious injury can exhaust the at-fault driver's policy in a single hospital stay. That is where uninsured and underinsured motorist coverage, called UM/UIM, comes in. R.C. 3937.18 governs this coverage in Ohio. Insurers are not required to include it in every policy, but when it is purchased it protects you if the at-fault driver has no insurance, cannot be identified, or has limits too small to cover your losses.

A passenger has two potential sources of UM/UIM coverage:

1. The policy on the car you were riding in. UM/UIM coverage generally protects anyone occupying the insured vehicle.
2. Your own policy, or a policy of a relative you live with. Many policies extend UM/UIM to the named insured and resident family members even when they are passengers in someone else's car.

Which policy pays first, and whether they can be combined, depends on the language of each policy and on exclusions that R.C. 3937.18 permits, such as the "regular use" exclusion for vehicles you drive often but did not list. The statute also allows insurers to require that a UM/UIM claim be made within three years of the crash. Those deadlines are shorter than the general two-year injury deadline in some situations and longer in others, which is why we pull every applicable policy at the start of a passenger case. For a fuller explanation of this coverage, see our page on uninsured and underinsured motorist claims.

UM coverage also reaches a situation that surprises people: being hurt by a government vehicle whose driver is immune from suit. As we discussed in our post on the Ohio Supreme Court's Marusa decision, the wording of the policy can make an immune police officer an "uninsured" driver for coverage purposes.

What a passenger case looks like in practice

Because fault is usually clear, the work in a passenger case is proving the injury and finding every available dollar. In a typical Dayton-area passenger claim our office will:

• Obtain the crash report and identify every driver and every policy, including umbrella coverage.
• Send written notice to each insurer so that no one later claims the notice was late.
• Collect the MedPay benefits promptly so your providers are paid while the larger claim proceeds.
• Document the injury fully, including follow-up care, work restrictions, and any permanent impairment.
• Present the liability claim, and then the UIM claim if the liability limits are too small.

Serious passenger injuries, particularly in high-speed crashes and in collisions with commercial vehicles, often involve multiple layers of coverage and competing subrogation claims from health insurers. Getting the order of payment right can change the net amount you keep by tens of thousands of dollars. Our car accident practice page describes how we handle these claims.

What this means for you

If you were hurt as a passenger, you have a claim, you are almost certainly not at fault, and you do not have to choose between your health and your relationship with the driver. The claim is against insurance, there may be two or three policies that owe you benefits, and some of them carry their own deadlines. Call before you give any insurer a recorded statement, and bring the policy declarations pages for every car in your household.