A driver and one or more passengers of a car (we will call that car “the host vehicle”) are injured in a car accident. They each wish to have the same lawyer or law firm represent them in a personal injury lawsuit against the owner and operator of the other vehicle.
Are there any problems that might arise from having the same lawyer represent the parties? You bet there are as demonstrated in a recent decision of the Appellate Division, Second Department
There are strong reasons why a driver and each passenger should have separate lawyers to protect their interests – most importantly is the conflict of interest that arises by joint representation as demonstrated in Shelby v Blakes.
Shelby was a rear end collision case. The driver (Shelby) and his passenger (Earl) claimed that their car was struck while stopped waiting to make a left turn. Now the law in New York is clear that a motorist who collides into the rear of a stopped or stopping vehicle will be found to be negligent as a matter of law unless that driver can come forward with a non-negligent explanation for the collision.
The problem in the Shelby case was that not only did the defendant driver deny that he was at fault, but through his insurance company assigned defense lawyer he filed a counterclaim against Shelby as the driver of the host vehicle. Whether this counterclaim had any merit to it was not the point. The moment that there was a claim of negligence against the driver of the host vehicle, a conflict of interest was created which prevented one lawyer from representing both the driver and the passenger who claimed to be injured.
The passenger has every right to not only claim that the owner and operator of the rear ending vehicle were negligent, but the passenger can also claim that the driver of his vehicle was also responsible for the collision. Keep in mind that under New York law a jury can assess fault against both sides. As long as one of the parties is found by a jury to be even 1% responsible for the collision, that party is obligated to pay whatever damages that the jury awards.
The passenger in Shelby claimed that he never knew that the defendant had filed a counterclaim against the driver of his vehicle. This is something that he obviously would have liked to have known and should have been told.
One lawyer cannot look out for the interests of both the driver and the passenger. This is even more so when there is limited coverage available to pay any judgment or settlement that is reached.
Consider that if the at fault vehicle only has a 25/50 policy, the insurer is obligated to pay no more than $25,000 per person but no more than $50,000 per incident. If there are three people injured in the host vehicle, one lawyer cannot properly represent the competing interests of the three injured people.
Consider also that the host vehicle may have substantially more coverage available than the at fault vehicle. Let’s say that the host vehicle had a $250,000 policy of insurance and the at fault vehicle had only a 25/50 policy. Each passenger would have a right to make a claim against the driver of the host vehicle and if a jury finds that the driver was in any way responsible, they can access that large policy. Obviously, it is in the passenger’s interest to seek recovery from all sources where the driver clearly wants to limit any responsibility on his part.
Having one lawyer for each occupant of the host vehicle is the best way to ensure that everyone’s interests are protected. Our attorneys have aggressively prosecuted lawsuits on behalf of injured passengers in Westchester and Rockland Counties and in New York City.
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