Usually the insurance of the owner of the car that caused the accident; in your case that would be the girlfriend’s insurance.
Theoretically, it depends on the policy language. Insurance companies can write their policies any way they want. But the owner’s insurance policy is nearly always the first one to pay.
Almost every auto insurance policy I’ve ever read says that the owner’s policy is primary – that is, the owner’s policy will have to pay first. If the damages are greater than the owner’s limits, the driver’s policy is responsible for anything that the owner’s policy does not cover – this time, up to the driver’s limits.
When the driver’s limits are exhausted, you can make a claim for underinsured (UIM) coverage with your own policy, if you have enough coverage. (To make a claim for UIM coverage, the UIM limits have to be greater than the total of the limits of the driver and owner.).
EXAMPLE
Here’s an example. Let’s say that Ted is driving Lisa’s car when it hits you. Ted’s policy has $100,000.00 in liability coverage. Lisa has a minimum limits policy: that is, in Ohio, $12,500 per person, $25,000.00 per accident. You have $300,000 in underinsured (UIM) motorist coverage.
Let’s further assume that you have damages of $300,000 or greater.
So in this case, Lisa’s insurance will pay the first $12,500, Ted’s insurance will pay the next $100,000, and your UIM coverage will pay the rest, up to a maximum of $300,000 total. (Liability payments offset the total amount payable under the UIM policy; so the most your UIM insurance policy would owe would be $187,500) ($300,000 – $112,500 = $187,500.00)
One more thing: If you find yourself in this situation, it is VERY important to involve an attorney early, before you start negotiating with the different insurance companies.
The insurance companies nearly all want you to sign a release when you get your money; and signing one company’s release could keep you from being able to get anything from another company.
So get a lawyer who knows what he’s doing.
Update
The day after I posted this blog, I mediated a case where the two insurance policies – the driver’s and the owner’s – provided that in the event of an accident, their insurance would cover the claims pro rata – that is they would split the payment and the costs of defense according to their policy limits. This was the first time I’d ever seen that happen.
I have been a lawyer over 30 years. I make it a point to know what insurance is available before settling a lawsuit, because I have to. If you have a personal injury case in Cincinnati, Ohio or if you want to know what your lawsuit is worth, talk with an experienced Cincinnati Accident Attorney about the case. Call me, William Strubbe, at 513-621-4775.
Because all situations are different, and because there may be other facts pertaining to your case that I don’t know about, you should not rely on this answer for legal advice. I am not your attorney, and no lawyer client relationship has been formed.
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