by lisa.reynolds » Wed Sep 26, 2012 03:15 pm
my 11 yr old daughter was in accident and was hurt, the police could not determine who was at fault for the accident when the hospital bill and information was sent to the insurance company they said because my daughter wasa guest passenger they would not pay a loss. My daughter did not cause this accident and is now afraid to get in the car with anyone but me. Why should I have to pay these co-pay and out of pocket expenses for doctors visits? The grandmother buys them thing so they will ride with her. does that make them a guest?
Posted: Wed Sep 26, 2012 09:02 pm Post Subject:
information was sent to the insurance company they said because my daughter was a guest passenger they would not pay a loss.
There is a problem with this statement. There is no such thing as a "guest" passenger. There are drivers and there are passengers (or occupants). There are immediate family members and there are non-family members. [There are also "members/residents of the household", which can include tenants or roommates who live at the same address as the vehicle owner/driver but are not "immediate family members"] And I think we can assume that your daughter was not riding a bicycle, scooter, skateboard, or was a pedestrian not inside one of the vehicles in any other way. We don't know in what state the collision occurred, which could make a difference if PIP is involved.
There are no "guests" when it comes to traffic collisions. Homeowners insurance, sure. But not auto insurance. This has nothing to do with homeowners insurance.
Here's the reality:
Drivers and passengers occupy [both are "occupants"] a particular vehicle (one owned by them (or an immediate family member) or one they do not own. It may be owned by a friend, neighbor, coworker, employer, or a vehicle obtained from a rental agency. Or it could be a stolen vehicle (which would complicated matters some).
What you have not clarified is which one of these definitions fits your daughter. We can assume she was a passenger (11 year olds do not normally drive cars) in one of the vehicles involved. She was either in a vehicle (a) owned by her (unlikely) or (b) one owned by an immediate family member, such as a parent or sibling, or (c) one owned by someone else (like Grandmother or the next-door neighbor, or that of a friend's parent).
Someone owned the vehicle in which she was a passenger. We just need to know which one of these it was. If the driver is not the vehicle owner, the driver may have their own personal auto insurance which would become involved in addition to the owner's auto insurance (normally as secondary coverage).
Assuming Grandmother was the driver involved, your daughter -- if she normally lives somewhere other than with Grandmother -- is neither an immediate family member nor a resident of Grandmother's household for insurance purposes. She could be an immediate family member of one of the two drivers, but she was a passenger in only one of the two vehicles.
So, the first thing that needs to be clarified is the relationship of your daughter to the parties involved in the collision and who was driving the vehicle in which she was a passenger (and there relationship to the vehicle owner -- self, spouse, dependent, other). The information a little further down will answer for either of the various possibilities.
Why should I have to pay these co-pay and out of pocket expenses for doctors visits?
Well, someone has to pay them, right? But that's not what you are really asking. What you are really asking is,
"If my daughter was not at fault for the accident, who is actually responsible for paying her medical bills?"
In the closest sense, as her parent, you have a responsibility to pay her medical bills. But not, ultimately, when her injuries are the result of some third party's negligence.
Since your daughter was a passenger in one of two or more vehicles involved in a collision, one of the auto insurance companies probably has to pay the claim.
It will be payable by the company of the driver/owner of the other vehicle if determined to be at fault for the collision or the driver/owner of the vehicle in which your daughter was a passenger if no fault can be determined (or it was that driver's own fault). One way or another, the injuries to your daughter are probably compensable. The question is which one?
However, when the vehicle is owned by an immediate family member who is at fault for the collision, the insurance company may be off the hook (unless there is Medical Payments or PIP coverage involved). Because auto insurance normally does not cover the "first party injuries" to members of the insured's immediate family or residents of their household (but health insurance would). That's one of the reasons some of us pay for Medical Payments coverage or PIP coverage. But both of those coverages apply to any "occupant" of the vehicle (regardless of fault). In CA, Med Pay is considered "excess coverage" for first-party claims and only pays what first-party insurance does not (you could be reimbursed for out-of-pocket costs). It is primary and pays the full cost of a non-family member passenger's medical expenses up to the policy limit. Beyond that, the Bodily Injury liability coverage would pay remaining expenses.
How did you file the claim? With which driver's insurance company? It makes no difference that the police did not determine which driver was at fault -- that's not their call when it comes to insurance, only when a criminal event has occurred.
Right or wrong, your claim may have been "summarily" denied by the insurance company of the driver/owner of the vehicle that collided with the one in which your daughter was a passenger. That's fine, they don't have to accept liability when it is not clearly that of their insured.
So let's make an assumption that your daughter was not an "immediate family member" or "resident of the household" of either driver.
When that happens, you simply file the claim with the insurance company of the driver/owner of the vehicle in which your daughter was a passenger. If they deny the claim, then you will need to sue BOTH drivers/owners in small claims court.
To win, you only have to prove four or five things in a case like this: (1) that a collision occurred; (2) that your daughter was a passenger in one of the vehicles involved; and, (3) that the collision resulted in your daughters injuries. If you can prove those three things, the only other thing to prove is: (4) your daughter's financial "special" damages (medical expenses, including all out of pocket costs) -- plus (5) any "general damages" for pain and suffering, etc. (which may not be part of a small claims suit in some states).
If you prove those four or five things, you win. Plain and simple. The hard part is up to the judge. He/she has to decide if either driver was 51% or more at fault. However the judge sees it, that's the way the drivers have to pay for it. Then they turn over their claims to their insurance companies, and the insurance companies write the checks.
Now, when you win, and auto insurance companies write the checks, you will have to reimburse your health insurance company for its expenses in treating your daughter (payments to hospitals, physicians, technicians, etc). That's a concept called subrogation. It applies in your situation because your health insurance is not intended to pay for damages caused by third parties, but that's what you've used it to do. So you need to know, when you file your lawsuit, how much the health insurance company is going to want -- you need to get at least that much, plus your out-of-pocket health care expense.
So provide a bit more information and we can give you a more specific answer.
Posted: Wed Sep 26, 2012 09:42 pm Post Subject:
The driver was the next door neighbor, her aunt, the owner is her cousin. The aunt was going to the hardware store to buy supplies and she takes them with her to help carry what ever she purchases and in return she buys them an outfit for helping her. The police couldn't determine who was at fault
Posted: Wed Sep 26, 2012 09:57 pm Post Subject:
OK, you still did not indicate which insurance company denied your claim. File the claim with the other insurance company and see what happens. If they deny your claim, then you take it to court as I indicated. Your daughter is not an immediate family member or resident of her aunt's household.
It means suing your sister/sister-in-law and "her cousin" as well as the driver of the other vehicle involved. You may not be invited for Thanksgiving dinner when you do that, but it will be the only way to get your daughter's health care expenses paid by someone other than you.
You sue on behalf of your daughter as her parent or guardian ad litem. (1) You call your daughter as a witness to describe the events that led to her injuries and what medical treatments she has had. (2) You introduce a copy of the police report (it there even was one) to prove that a collision occurred and who was involved (or get one of the other two parties to admit that a collision did occur). (3) You produce copies of medical expenses charged/paid to prove your damages.
The rest is up to the judge to decide who pays. Probably gets split 50-50 unless someone admits fault. You have a winning case as long as you prove 1, 2, and 3.
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