Common Situation 7
Mother is the named insured. She and her child are injured by another driver who is wholly at fault. What coverages are available to mother and child? Assume mother is the named insured on a second vehicle with much higher underinsurance limits than the occupied vehicle.
Answer to Common Situation 7
Both mother and child will obtain the bodily injury coverage under Part 5 of the offending vehicle or, if no Part 5 coverage, then from Part 1 of that vehicle.
As for underinsurance benefits, both mother and child are bound by the coverage limits of the vehicle they were occupying. This is no surprise for Mother. However, the situation has been clarified—unhappily—in the case of the child. The Supreme Judicial Court of Massachusetts has decreed that the coverage on the occupied vehicle controls even if that occupant is not a named insured. Chenard v. Commerce Insurance Company, 440 Mass. 444 (2003). This seemingly flies in the face of the statute that permits someone who is not a named insured on any policy—such as a child—to recover from the highest policy of a resident relative. M.G.L. c. 113L(5).
If you had any doubt as to how complicated Massachusetts Auto Insurance law is consider that the trial court judge (the Superior Court judge) decided one way as to how a non-named insured can recover, the Massachusetts Appeals Court decided the opposite way only to have the Supreme Judicial Court decide as did the Superior Court judge.
A further complication is that if the child were a pedestrian, he/she could indeed recover from the larger of the two policies. Similarly, if the father had owned either of the two vehicles instead of the mother owning both, the child could recover from the larger of the two policies.
It is no wonder that Massachusetts Auto Insurance law has been compared to the uninitiated driver’s first foray into the streets of Boston. Cardin v. Royal Insurance Company of America, 394 Mass. 450. (1985).
The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.
Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.