Bystander Claims for Family Members and Why they Matter

An injury affects the entire family.

That same injury has way more impact if you actually see a family member get hurt.

A lot of times it's something you can't "unsee" what happed. Especially if the family member ends up sprawled out, writhing in pain, losing blood, etc.

So what's fair? Should a driver who looked down at their phone and ran over a pedestrian at a busy intersection have to compensate everyone who witnesses the atrocity?

Washington law recognizes the duty to compensate...but only to compensate certain people (and only under certain circumstances).

Here’s what’s required to bring a bystander claim:

1. The injured person has to be a family member (e.g., sibling, parent or child).

2. The family member must witness the event that causes the injuries or arrive at the scene shortly after it happens.

3. The family member must see the victim and/or victim’s injuries before there is a material change (e.g., first responders bandage up visible wounds).

4. The family member's emotional response must be reasonable and corroborated by objective symptoms. (It’s interesting that the term “objective” is used because symptoms like nightmares, sleep disorders, intrusive memories, fear and anger all qualify.)
   

In some ways bystander claims (seeing a family member get hurt) seems a lot like a loss of consortium claim (experiencing a blow to a family relationship). But there's an important difference.

Loss of consortium claims are covered by the same policy limit as the injury itself. They're considered "derivative" by insurance companies. So if there's a policy with limits for $100,000 per claim and $300,000 per collision there's only $100,000 for the husband's bodily injury claim and the wife's loss of consortium claim. There's a $100,000 ceiling.

But bystander claims are different. They aren't viewed as derivative. There's a separate "injury" and a separate policy limit.

Here’s a real world example:

We represented a woman who was riding her motorcycle behind her husband. She saw her husband hit by a drunk driver.

She wasn’t physically injured but was traumatized by the experience.

The drunk driver carried $100,000 of liability coverage per person. We were able to recover $100,000 for the husband for his bodily injury and $100,000 for the wife for the emotional distress she experienced as a result of witnessing the wreck.