You Can Sue Phantoms, and If You Don’t, You Could Have Problems

When someone is injured, we normally think of suing a person or a company whose negligence was responsible for our injuries. But if you learned that ghosts—or, more legally proper, “phantoms”—could be responsible for injuries, you’d probably think we were joking.

But phantom defendants are far from funny. In fact, they can be a huge problem when they get involved in your injury case.

How Phantoms Get Into Your Cases

Before we discuss phantom defendants, it’s important to understand how they get involved in cases in the first place.

Normally, an injured person sues the defendant responsible for their injuries. At that point, a defendant has the option of blaming someone else for the negligence that you allege they committed.

As an example, you may sue Publix for maintaining a slippery floor. In turn, Publix may blame a company that cleans their floors for them, saying, in essence, “if anybody is negligent, it’s not us—it’s them.” In everyday terms, we may think of this as “passing the buck,” because that’s really what it is. So, you’d add the cleaning company to the defendants named in your case.

But sometimes, the defendant believes someone is responsible, but it doesn’t know who that person (or business). This often happens in car accidents.

Let’s imagine a car swerves in front of you, causing an accident. You sue the other driver. That other driver then says that they swerved into your lane because a crazy motorcyclist was weaving and almost hit them, and that the motorcyclist is to blame for the entire accident.

The problem is, nobody has any idea who that motorcyclist is. You now have to sue the unknown motorcyclist, who becomes a “phantom” defendant.

Phantoms Can Cause Collection Problems

The problem with phantom defendants is that a jury can apportion liability to it. So if you are awarded $100,000 from a jury, but the jury believes the phantom defendant is 50% liable, that’s $50,000 you’re left to collect from someone who doesn’t exist.

Luckily, this is why we have (and suggest everyone carry) uninsured motorist (UM) coverage. UM coverage will pay you any amount that a phantom driver is liable to you for injuries (up to the limits of your UM coverage). If you don’t have UM coverage, you would have no way to collect against a phantom driver that a jury feels is liable for your injuries.

Problems can arise if an attorney isn’t careful. An attorney may feel like they don’t want to sue a phantom defendant, preferring to force the jury to apportion all liability to the known defendant. But opting not to sue a UM carrier can forever waive any claims against a phantom driver, leaving you unable to collect for liability apportioned to it, as one appellate case recently held.

Deciding whether to involve a UM carrier for the liability of a phantom driver is a tactical one, and UM time limits can be different than those involving suing a negligent party. Thus, an attorney should always be careful when he starts to hear a negligent defendant start to blame an accident on another, unidentified driver or company.

Knowing who to sue, and how to do it, can make or break a case. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.


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