Yes, You Can Sue Your Spouse, But the Better Question Is "Are We Covered Under Our Auto Policy?"

Without Critical Coverage, Right to Sue Spouse Is Probably Worthless

If She Had Only Known

A new client asked me if I would review her medical records to see if she had a medical malpractice claim against her orthopedic surgeon. This woman had received a horrible injury to her back as a passenger in a car accident several years ago (two crushed vertebrae), which still cause her a great deal of pain, even after numerous surgeries.
Sometimes people receive such a terrible injury that even the best surgeons cannot completely “fix” their patient, and this was one of those cases. After advising her that she did not have a case against her surgeon, I asked her about the car accident and how she made out in the lawsuit. She told me that she was a passenger in her husband’s car and that he was responsible for the accident. She then told me that her “family” attorney had advised her that in New York she could not sue her spouse for injuries received in a car accident.
Her “family” attorney could not have been more wrong! There is absolutely no rule prohibiting a wife from suing her husband (or vice versa) in New York for injuries received in a car accident. However, the better question to ask is “Do we have “spousal liability coverage” under our auto insurance policy?” This is because if you don’t have this special insurance coverage, there is no benefit to suing your spouse, because you are effectively suing yourself! If you have this special coverage, the insurance company pays you to compensate you for your injuries. Of course, you must still prove that you have received a "serious injury" in order to maintain your lawsuit, just like in any other auto accident case.
So what did I advise the client? For starters, the statute of limitations on a car accident case (usually) is only three years, and unfortunately, she waited too long to get money out of the car insurance company. Then I gave her more bad news- the statute of limitations on a legal malpractice case is also three years, so she can’t even sue her lawyer which gave her the lousy advice.
If she had only known that with the proper insurance coverage, she could have made a timely claim against her own insurance company for her injuries.



Listen to Scott's radio show, "Cannon's Law- Opening Fire" on WYSL 1040AM and FM TALK 92.1, Saturday mornings 8:00-9:00, and Sunday evenings from 6:00-7:00.
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