Injured as a Passenger in California: Whose Insurance Pays

You were in the passenger seat. You were not driving, you could not have braked, and you still ended up in the emergency room. Now you are trying to work out whose insurance is supposed to pay, and the answer is awkward if the driver was a friend, a coworker, or someone you live with.

Most passengers have more than one possible source of payment. Which ones actually apply depends on two questions: who caused the crash, and what your relationship is to the person behind the wheel.

Start with who caused the crash

Passengers are almost never at fault for a collision, which puts you in a stronger position than either driver. Your claim runs against whoever was negligent, and there are only three basic patterns:

• The other driver caused it. Your claim goes to the other driver's bodily injury liability coverage, the same as if you had been driving.
• Your driver caused it. Your claim goes to your driver's bodily injury liability coverage. Yes, even if they are your friend.
• Both drivers share the blame. You can claim against both policies. California's pure comparative negligence rule assigns each driver a percentage of fault, and neither insurer gets to escape by pointing at the other.

The California Department of Insurance describes bodily injury liability simply: it "pays for bodily injury you cause someone else." The minimum every California driver must carry is $30,000 for injury to one person and $60,000 total for injury to more than one person in a single accident, according to both the DMV and the Department of Insurance.

That per-accident number matters more for passengers than for anyone else. If a car carrying four people was hit by a driver with a minimum policy, all four injured people may be splitting the same $60,000.

Making a claim against a friend's policy

This is where people hesitate, and where insurers quietly benefit from that hesitation.

A claim against your driver is a claim against their insurance policy. Liability coverage exists precisely so that someone who causes a crash does not have to pay the people they hurt out of their own savings. Your friend's insurer handles the claim, and the payment comes from the policy, within its limits.

Expect the conversation with your friend to be uncomfortable for about a day. Then expect their insurer to treat you exactly the way it treats any other claimant: a recorded statement request, questions about prior injuries, and an early offer. The recorded statement traps are the same whether the adjuster works for a stranger's insurer or your best friend's.

Do not let your friend talk you into "keeping insurance out of it" and settling informally. Once you have been treated, the medical bills tend to be larger than anyone guessed at the scene, and an informal arrangement leaves you with nothing to enforce.

The household exclusion: when the driver is family

If the driver was your spouse, or a relative you live with, the liability policy may not cover you at all.

Insurance Code § 11580.1 lists the exclusions California allows in auto liability policies. One of them, in subdivision (c)(5), lets a policy exclude "liability for bodily injury to an insured." The Department of Insurance's consumer guide spells out what that means in practice: bodily injury liability coverage does not apply to you or your household members.

The California Supreme Court upheld this kind of household exclusion in Farmers Ins. Exchange v. Cocking (1981). The court pointed to the insurer's interest in "minimizing future losses attributable to fraud or collusion" between family members, and held that § 11580.1 "is not only consistent with state public policy, it itself constitutes and expresses that policy."

Do not assume the exclusion applies before someone reads the actual policy. Wording varies, and who counts as a resident of the household is a factual question. But if you were hurt while your spouse was driving the family car, the liability claim you would bring against anyone else may simply not exist, and the coverage below becomes the main event.

Medical payments coverage pays regardless of fault

Medical payments coverage, usually called MedPay, is the coverage most passengers forget about. The Department of Insurance describes it as covering "the cost of medical expenses if you or your passengers are injured," and it pays "no matter who is at fault." The minimum limit available is $1,000 for each person injured, and higher limits can be purchased. It is optional, so not every policy has it.

Two policies may be worth checking:

• The policy on the car you were riding in. MedPay follows the car's occupants, so you may be covered as a passenger even though the policy is not yours.
• Your own auto policy, if you have one. Ask your agent whether your MedPay applies when you are a passenger in someone else's vehicle.

MedPay is not a settlement. It does not pay for pain and suffering, and the limits are usually modest. It is useful because it can pay bills quickly while the liability claim is still being argued.

When the at-fault driver has no insurance

If the other driver caused the crash and had no insurance, or not enough, uninsured motorist coverage is what fills the gap. Under Insurance Code § 11580.2, an "insured" for uninsured motorist purposes includes "any person while in or upon or entering into or alighting from an insured motor vehicle." In plain terms, the uninsured motorist coverage on the car you were riding in can protect you as a passenger. The Department of Insurance describes uninsured motorist bodily injury as paying "for injuries to you and any person in your car."

Your own uninsured motorist coverage may also come into play, and the sequence of claims matters. Our post on being hit by an uninsured driver walks through how those coverages pay out and the written arbitration demand that has to be made in time.

One limit: § 11580.2 says an "uninsured motor vehicle" does not include a vehicle "owned or operated by the named insured or any resident of the same household." Uninsured motorist coverage is generally not a back door around the household exclusion.

If you were riding in an Uber or Lyft, a different set of rules applies, and the coverage turns on what the driver's app was doing. See Uber and Lyft accidents in California.

What this means in California

The deadlines are the same for passengers as for drivers. Under CCP § 335.1, you generally have two years from the date of injury to file a personal injury lawsuit. If a public entity was involved, such as a city vehicle, a public bus, or a dangerous road condition, a government claim is usually due within six months.

California's pure comparative negligence rule works in your favor as a passenger. Because fault is divided between the drivers, and passengers rarely carry any, the insurers' usual argument for reducing your recovery is weak. Expect them to look for other angles, like whether you were wearing a seat belt or whether your injuries predate the crash.

Practical next steps

Get treated and follow through on the treatment plan. Make sure the police report lists you as an occupant, because passengers get left off. Get the insurance information for every driver involved, plus the policy information for the car you were riding in. Report the crash to your own insurer even though you were not driving. Ask the driver, in writing if necessary, for a copy of their declarations page so you can see what coverage exists, including MedPay and uninsured motorist limits. If the driver is a family member, have someone read the actual exclusion language before you give up on the liability claim or assume it is valid. A free consultation costs nothing, and there is no fee unless there is a recovery.