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The Injured Passenger in a Motorcycle Accident

By Chuck Koro, Russ Brown Motorcycle Attorneys

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When there is an injured passenger in a motorcycle accident, it can sometimes create a dilemma as to who the claim should be made against, especially when there is an issue as to who was at fault for the accident.  Since the passenger is negligence-free, he or she can pursue a claim against all involved drivers, including the driver of the motorcycle.  As you might imagine, under some circumstances, you as a passenger may be faced with a tough decision on whether to pursue a claim against your own driver. However, in order to receive compensation for your injuries adequate to cover your medical expenses, it may be necessary.

Motorcycle Passenger Injury Claims After an Accident

The decision is easy when the other driver is the primary cause of the accident. Both the motorcycle driver and the passenger can proceed against the other driver in anticipation of obtaining a recovery from his insurance company for their injuries and damages.  However, when both drivers share fault for the accident, if the passenger wants to recover the full value of his damages, he will have to proceed against both drivers.  In the situation where the motorcycle rider is fully at fault, the passenger will also have to proceed against his own driver if he wants to recover.  This is a difficult decision and some passengers simply choose not to take any action against their own driver. Others understand that the funds are paid from the driver’s insurance company, not the driver himself, and agree to proceed against those funds only. It should be noted that usually, the claim cannot be made against a family member or if both are on the same insurance policy.

When the driver and passenger retain the same lawyer, to pursue the other driver, a conflict may arises for the lawyer. If the passenger’s own driver shares some fault, the lawyer is obligated to tell the passenger that he has a claim against his own driver.  If he chooses to pursue that claim as a passenger, then the driver and passenger will have to retain separate lawyers. It can be beneficial if the lawyers know each other and can work together to get both claims resolved.  

In other situations, even though the other driver’s insurance company is claiming the motorcycle rider is partially at fault, the motorcycle passenger may feel strongly that his driver did nothing wrong and choose to proceed only against the other driver. If the attorney is representing both the motorcyclist and the passenger, a conflict waiver should be signed by the passenger. 

To clarify these issues, here are some examples.

Situations Warranting Personal Injury Claims for Motorcycle Passengers

Considering the heightened risk of experiencing a motorcycle accident as a passenger as opposed to being a passenger in a car accident, it is of great importance that passengers are clear-headed about situations which merit a personal injury claim in the event of an accident.

Example 1 – The Rear-Ender With Clear Liability

The motorcycle is rear-ended while stopped and both the driver and the passenger are injured.  In this situation, it is pretty clear that the other driver is at fault and both the rider and the passenger should pursue  file a claim against the other driver only.

Example 2 – Both Drivers Share Fault

The motorcyclist is cut off on the freeway by a driver making an abrupt lane change and both he and his passenger are injured.  The other driver’s insurance company and perhaps the responding police officer conclude that the motorcycle driver was partially at fault for unsafely splitting lanes.  In such circumstances, the passenger has to make a decision whether to pursue the other driver only or both drivers.  

Example 3 – The Motorcycle Driver Is Fully At Fault 

In this actual case involving a side-swipe collision, the motorcycle rider’s insurance company concluded that its own insured (the motorcycle driver) was at fault.  The other driver’s insurance company also concluded that the motorcycle driver was at fault.  When both the motorcycle driver and the passenger retained a  personal injury attorney and the situation was explained, the passenger was adamant that it was the other driver’s fault and signed a conflict waiver stating that he understood that if his own driver were to be found at fault, he (the passenger) would be giving up a good portion, if not all, of his recovery.

As the case proceeded, it became clear that the motorcycle driver was truly the primary cause of the accident.  The motorcycle driver decided not to pursue a claim against the other driver because the chance of recovery was slim to none.  The passenger decided to proceed against the insurance proceeds of the motorcycle driver.  Conflict waivers were signed and the case successfully concluded for the insurance funds under the motorcycle driver’s policy. 

Motorcycle Accident Passenger Legal Rights

Another important avenue to pursue is an uninsured or underinsured motorist claim. If there are insufficient insurance funds available from the at-fault driver, the injured parties should look to any insurance policies that they may have, not just on the motorcycle but on other vehicles.  This is especially important for the passenger, whose own vehicle insurance may provide coverage under certain circumstances. It may sound strange, but uninsured/underinsured coverage is a different animal.  A passenger injured in a motorcycle accident on someone else’s motorcycle may be able to pursue an uninsured or underinsured motorist claim under his own vehicle policy, unless there is an exclusion.  This gets complicated and laws may vary from state to state.  It is important for a professional to review all policies and all the surrounding circumstances. Russ Brown Motorcycle Attorneys is a law firm of expert motorcycle accident lawyers who offer our experience and support in getting you the compensation you deserve for any medical payments, pain and suffering, economic damages, or other strife you have endured. Get your free consultation about your motorcycle accident today.

Russ Brown Motorcycle Attorneys — russbrown.com; 1-800-4-BIKERS