Personal Injury Lawyer
As a personal injury and wrongful death lawyer, Mishkind Kulwicki Law Co., L.P.A.routinely review insurance journals to stay up-to-date on major developments in the area of insurance coverage. Today, in the Insurance Journal, I read about a “first of its kind” lawsuit filed by a wife suing her husband’s employer over subjecting him to Covid-19, which the husband then transmitted to the wife. The injury lawsuit, a case of first impression, is pending in federal court. This legal scenario made me think of an even more awkward situation where one family member must sue another family member for injuries sustained in a car accident, on-premises injury, dog bite, assault or other personal injury.
Note that state law varies, so I am going to share my experience as a personal injury and wrongful death lawyer located in Ohio. Your state may have different laws. Generally, bringing a lawsuit against one’s own family member is no different than suing a total stranger. However, a very important limitation may apply to the availability of insurance coverage to pay for injuries and damages caused by a family member. Most policies contain an “intra-family exclusion” which specifically states that coverage does not extend to immediate family members. Policy language must be reviewed carefully to determine whether the exclusion applies to all immediate family members or only those who live in the same household. If insurance coverage is excluded, the next step is to review uninsured motorists coverage to determine whether that coverage may apply in the absence of other coverage.
General liability policies may also exclude family members. The policies, such as homeowners or renter’s insurance, often contain other exclusions that may apply, such as the exclusion of coverage for dog bites that result from certain enumerated vicious breeds. Policies typically exclude intentional acts, such as molestation or assault.
Why do personal injury and wrongful death lawyers look at the availability of insurance coverage first? Most injury cases are handled on a contingent fee. Thus, the lawyer’s time and effort is only compensated if money is recovered from the wrongdoer. Most wrongdoers do not have assets to pay off a sizable verdict. If they do, they may be able to discharge an award of money damages in bankruptcy Either way, absent insurance coverage, the lawyer will be working for free, which is not a viable way to earn a living.
If a family member sues another family member who does have sufficient assets to pay a damage award, then several additional steps may be necessary. Your lawyer can perform a debtor’s exam to determine what assets are available to liquidate. Lawyers also rely on asset check services that will locate real estate, bank accounts and investments that might be attached to satisfy a judgment.
One final potential source of recovery involves injuries caused by a family member who causes the injury while engaged in the course and scope of their employment. In this situation, your personal injury attorney will look to the employer for recovery under principles of vicarious liability.