Common Situation 1
Husband and Wife are traveling in a vehicle, which they jointly own and are the named insureds. Husband is driving and Wife is a passenger. The car goes off the road due to the negligence of Husband. This is a one-car accident. Can the Wife recover?
Answer to Common Situation 1
Yes. Wife can receive Part 5 optional bodily injury coverage. She is not entitled to Part 1 compulsory bodily injury coverage because she is a passenger. Note also that Parts 1 and 5 are not cumulative by the specific terms of the policy, i.e. you cannot add them together.
In this situation, there is no underinsurance available to the Wife from this vehicle or any other vehicles that she may own. The explanation for that is somewhat complicated. Your attorney should keep in mind Massachusetts General Law c. 175, § 113L(5), the statute that regulates where the injured person must look to for underinsurance benefits. See Mercadante v. Worcester Insurance Company, 62 Mass. App. Ct. 293 (2004) for a full discussion of this issue. See also Depina v. Safety Insurance Company, 419 Mass. 135 (1994) on the significance of being “the named insured”.
NOTE: Because the Wife is a passenger, she can sue her Husband for negligence. The insurance policy, even though written to her, must pay for her pain and suffering.
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