When a couple contacts me because they have been injured in a car crash, they are often confused when I tell them that I can’t represent them both. What they may not understand is that it has nothing to do with whether I want to or not, and everything to do with a conflict of interest.
At first blush, you may not realize why a conflict exists. This example may help you recognize where the conflict exists.
Imagine you and your spouse are driving along in your car, and all of a sudden you are hit on the driver’s side of the vehicle by a car coming out of a driveway. The police arrive, ticket the driver that hit you, and then you go to the hospital to be treated for your respective injuries.
When you call the other driver’s insurance company, you are shocked to hear that the driver that was ticketed is claiming your spouse, the driver of your car, was actually at fault, or at least partly at fault.
In that instant, the conflict has been created (some lawyers would say that its created the moment you were hit). The conflict is, you as a passenger, will almost always be free of any fault. You weren’t driving – your spouse was. However, your spouse has now had the finger of fault pointed at him (whether he has any or not).
Just the chance, small though it may be, of your spouse having some fault, gives you the right to make a claim against him or her. That small chance is a conflict which an attorney should identify and explain to you.
While the thought of making a claim against your spouse is distasteful, in order to obtain all of the coverage that is available to you, you may have to. Imagine declining to make a claim against your spouse and only making a claim against the car that hit you, only to find out that the other driver was uninsured, or under-insured (carrying only the minimum required by law). You could be left without enough insurance to pay for medical bills, wage loss or other claimed loss simply because you didn’t want to sue your spouse (who now wishes you had so that you can pay for all of your medical bills!).
Making claims against the driver when you are a passenger is normal, and needs to be done to ensure that all of the available insurance is there if you need it, and could be malpractice if your attorney fails to recognize that he or she cannot represent you both.