The lawyers of Chaikin, Sherman, Cammarata & Siegel frequently meet with clients who come in as a family or friends all injured in the same accident. One of these individuals was the driver and the rest were passengers. All of the individuals may describe the collision in similar fashion stating, for example, that the other person went through the red light or stop sign. With the evidence presented, there does not appear to be any opportunity for there to be a dispute regarding how the collision occurred. Nevertheless, despite what appears to be clear case in favor of our clients, insurance carriers frequently communicate that their insured has a different version. Their insured, they explain, is claiming that it is our driver that is at fault for causing or contributing to the collision. The passengers are totally innocent of any wrongdoing. The passengers know the truth and do not feel that it is fair to have what they believe to be a clear case clouded by an unfair and untruthful version of the accident. Regardless, there is a risk that the jury will find that the other driver is telling the truth. The passengers must therefore make a decision. If they file a claim against their driver as well as the other driver, except in extremely rare circumstances when the jury cannot decide which one of the two drivers caused the accident, the passengers cannot lose. Accordingly, passengers are uniformly advised that when there is a conflict regarding who is at fault, it is in their best interest to file a claim against both drivers. By filing a claim against their own driver, the innocent passengers will have the opportunity to collect from whichever of the two drivers the jury finds at fault. On the other hand, if the passengers refused to make a claim against their own driver and the jury found that their driver was at fault, they would have suffered an injury but been unable to recover compensation because of a failure to file the claim against their own driver.
One additional complicating factor is that in the event that the other driver unexpectedly claims that our driver client is at fault, we must advise the passengers that they will need to obtain other counsel since we will not be able to sue our client, their driver, on their behalf.
Accordingly, when there is the unexpected allegation that the driver of our client's vehicle was at fault, the passengers are left with the unpleasant but presumably necessary decision to sue their own driver and seek other counsel.
by Ira Sherman