Archives for 2017

Head Injury from a Car Wreck?

Did you hit your head on the steering wheel or dashboard after being rear-ended? If you did, you may be diagnosed with a closed head injury, a concussion or a brain contusion. A friend of mine, whose career is in the medical field, was good enough to provide me with the information listed below. We hope that it might assist you in treating any injuries you or your family members may have suffered in an car wreck or motorcycle accident.

A closed head injury is a trauma in which the brain is injured as a result of a blow to the head or sudden back and forth, violent motion. When this occurs, the brain is knocked around against the inside of the skull. Closed head injuries are common in traffic accidents, falls and assaults.

Closed head injuries can range from mild skull injuries to traumatic brain injury. They can result in severe brain damage or even death.

Different types of closed head injuries:

Concussion,
Brain contusion,
Diffuse axonal injury and
Hematoma

Concussions

A concussion is described as any head injury that temporarily affects normal brain function. Most concussions are mild and do not cause loss of consciousness. People suffering from a concussion can experience any number of symptoms including headache, dizziness, nausea, ringing in the ears, slurred speech, and vomiting. Persons suffering from a concussion may also have trouble concentrating or keeping their balance. While symptoms can be immediate, in other cases symptoms do not surface until hours or days after the blow to the head. Secondary symptoms can include mood swings, sensitivity to light and/or noise, and changes in sleep patterns.

Contusions

A brain contusion is when the tissues of the brain are bruised, as a result of the trauma. This can lead to a hemorrhage (bleeding) in some cases, which are then absorbed into the brain tissue. If this blood gets into the cerebrospinal fluid, it can lead to permanent neurological damage. Contusions are localized to a certain area, which is different from a concussion, which can be diffuse (spread out). Persons with a brain contusion (20-30% of severe head injuries) may feel weak and numb, lose coordination, struggle with memory or have cognitive deficits (trouble thinking straight).

Diffuse Axonal Injury

Diffuse axonal injury is one of the most debilitating traumatic brain injuries. These can be caused by high-speed collisions. Diffuse axonal injury causes permanent damage to the nerves in the brain. This can cause brain swelling and increased intracranial pressure (as with other closed head injuries), however, in this case it leads to a coma or a vegetative state in 90% of patients.

Intracranial hematoma

An intracranial hematoma occurs when the brain comes into contact with the inside of the skull, resulting in a pool or blood outside of the blood vessels of the brain or between the brain and the inside of the skull. This can compress brain tissue and requires immediate attention. This can result in unconsciousness, seizures or lethargy.

Finding Layers of Insurance Coverage

Throughout my legal career, I have handled a lot of car accidents and motorcycle wrecks wherein we could not recover the full value of my client’s personal injury claim. Why? Very simply, the value of a personal injury claim, from an automobile accident, depends in large part upon the insurance that is in place before the car wreck. This is true whether we are talking about your own car or motorcycle insurance or whether we are talking about the insurance on the at-fault driver.

Imagine for a second that insurance coverage is like baking a cake with several layers. Ideally, each layer leads to and is on top of the next layer. For a serious car wreck, the base of the cake is the liability insurance, the insurance on the at-fault driver. The next layer(s) is composed of your underinsured motorist coverage on your own automobile insurance policy. The icing is the end result from your personal injury. Motorcycle wrecks are a great illustration of this process and how a good personal injury lawyer may still not be able to recover the full value of your personal injury claim.

I have been working on a motorcycle wreck case wherein the client was hospitalized at the University of Louisville Hospital for over 30 days. As a result, the motorcyclist has medical expenses in the six-figure range. Yes, the client has health insurance and we will be using the health insurance of the motorcyclist to pay the medical bills and to reduce the medical bills to a lower amount. However, even the subrogation claim being asserted by the health plan, (a claim by the health plan to recover the medical expenses they have paid), exceeds the insurance coverage on the at-fault driver. For this case, the at-fault driver was insured for only $25,000 per person. In Kentucky and Indiana, this is the state minimum and a driver only needs to have as little as $25,000 per person in insurance coverage to lawfully operate an automobile.

So, I have been doing a lot of searching for other liability insurance that might apply to the negligence of the at-fault driver. I have ordered a copy of the title for the at-fault vehicle because the law provides that the insurance covering a vehicle is primary and the insurance covering the driver is secondary. In other words, I might find insurance on the vehicle or the driver or both.

For example, if I let you borrow my car, both of our insurance policies, you as a driver and me as the owner of the vehicle, could apply to the wreck. Yes, it is a long shot but considering the severe nature of my client’s injuries, I have to look in multiple places for multiple insurance policies.

This is worth reemphasizing. There is no issue as to the value of my client’s personal injury claim as fault for this motorcycle wreck is clearly on the automobile driver AND my client has over $100,000 in medical bills; much less considering his future treatment or lost wages. Yes, I can sue that at-fault driver and get a piece of paper, known as a judgment, that says the at-fault driver owes the full value of my client’s personal injury claim. However, judgments are a legal means of collecting a debt against someone’s assets through garnishments and foreclosures. If the at-fault driver does not have any significant assets, there is nothing to collect that judgment from. Moreover, unless the judgment involves punitive damages, the at-fault driver can bankrupt that judgment and make it disappear as if it never existed. This is why a good personal injury lawyer looks for underinsured motorist coverage. The problem being that the client, in this case the injured motorcyclist, has to have bought the underinsured coverage before the car wreck.

Many, many people incorrectly think that they do not need this coverage as they incorrectly think the at-fault driver is responsible for all the damages they have caused. Realistically, that is just not the case. So again, the value of the personal injury claim may be determined before the car wreck ever happens because it is at that time, all the liability insurance and underinsured motorist coverage is put in place.

For the motorcycle wreck I have been talking about, there was no underinsured motorist coverage on the motorcycle insurance policy. While the client had underinsured motorist coverage on an automobile insurance policy, that car insurance had two exclusions that made it inapplicable to the motorcycle accident.

First, it specifically excluded insurance coverage for two and three wheel vehicles, i.e. motorcycles and ATVs. Second, it excluded vehicles regularly owned and operated by the client BUT not listed on that insurance policy. In this case, the motorcycle was insured through another company and therefore, it was not listed on the automobile insurance policy.

So now, admittedly as a last resort, I am looking to the insurance policies of family members with whom my client has resided. To oversimplify things, you can have insurance coverage as someone who is listed on the insurance policy as a resident relative of the same household. The easiest example is to think about a 13-year old child that has divorced parents and lives with both his mother and father. Potentially, either his mother’s or father’s insurance policy could provide insurance benefits for a car accident even if the child was not in either parent’s vehicle.

On a final note, be careful about settling with one insurance policy and trying to pursue another. Depending upon what you sign, you could inadvertently release a claim against the driver’s insurance by settling with the company with that insures the motor vehicle. There are specific statutes, both in Kentucky and Indiana, that require certain procedures to be followed to preserve an underinsured motorist claim and BEFORE you settle with the liability carrier. If you don’t follow these procedures, your underinsured claim could be barred.

My job as a personal injury lawyer for this kind of motorcycle wreck is to find and collect from as much insurance as I can to maximize my client’s personal injury recovery. In addition, I have to minimize the subrogation claim of the health plan because every dollar the health plan recovers, is one less dollar my client is going to recover.

There’s one final point that I do hope you will think about. The value of a personal injury claim, unless you buy the correct insurance on your own motorcycle insurance before the wreck, depends upon luck. If the at-fault driver has a one-million-dollar insurance policy, you are in good shape. In contrast, if the at-fault driver is driving a 1980 Chevrolet, that same case with those same injuries is going to be worth a whole lot less.

Bowling Green Fatal Crash Involved KSP

route and journey during sunrise with the mist

The Bowling Green Daily News reported on a recent story. The Bowling Green fatal crash involved a KSP Trooper and the Trooper was attempting to pass a series of cars when his vehicle struck a pickup truck. The crash resulted in the death of the truck’s driver. The husband of the driver was treated and released from a local area hospital.

This isn’t the first a traffic fatality has occurred on that stretch of KY 185, just north of Bowling Green.

Any time there’s a serious accident on Kentucky roads, multiple things happen quickly. The authorities will begin trying to determine how the automobile accident occurred and the preservation of evidence is extremely important. When the damages suffered by my client(s) are substantial, car wrecks such as these, can justify the expense of an accident reconstructionist; an expert that will gather information on the client’s behalf and provide us with an expert’s opinion as to who caused the car wreck. Of course, such an expert depends entirely upon the information he is provided with.

Quick Action is an Advantage in a Car Wreck

I have had several cases over the years that because my client(s) contacted me immediately after the car wreck, the accident reconstructionist was able to view the scene of the wreck and discover additional evidence that the police overlooked.

In addition, a cheaper alternative is to hire a private investigator to capture the testimony of any witnesses while their recollection of the car wreck is fresh. I have found that by obtaining the statements from witnesses and providing a copy of these witness statements to the insurance company, we have been able to prove our client(s) were not at fault in causing the car wreck early on. Of course, this allows us to avoid the cost of litigation and attempt a pre-suit settlement of our client(s) personal injury claim in any car accident, whether the Bowling Green fatal crash involved a KSP trooper or not, the local police department will need to determine if any driver(s) were under the influence of alcohol or drugs or was this car wreck caused by distracted driving. However, a good personal injury attorney should be doing the same.

Accident Investigation

Whether it is Court records, hospital records or obtaining posts from social media, proving a driver was drunk or distracted can increase the value of the personal injury claim and/or make liability for the wreck indisputable.

In a case like this that may give rise to a wrongful death claim, such facts are all the more important. After all, when a family member experiences a death from a car wreck, the last thing they should have to do is worry about proving the decedent was not at fault for the car wreck.

Here’s a brief summary of KY traffic fatality data:

2015 – 694 Fatal Collisions, Resulting in 761 Fatalities
2014 – 612 Fatal Collisions, Resulting in 672 Fatalities
2013 – 590 Fatal Collisions, Resulting in 678 Fatalities
2012 – 694 Fatal Collisions, Resulting in 746 Fatalities

If you’d like to learn more about Kentucky or Indiana wrongful death cases, there’s a specific page on my website. Click here to learn more about Wrongful Death Issues in KY and IN, there’s also a brief video toward the bottom of my website’s home page.

When Insurance Totals Your Car

In a recent blog post I started talking about some of the issues that come up when your car is damaged in a car wreck. However, the one issue I did not get to is when the insurance company tells you that your vehicle is totaled or a total loss. So, what happens when insurance totals your car?

For example, assume you have just finished paying off your Ford Explorer that has a present, book value of $7,000 and because you have taken meticulous care of it over the years, you believe it should run for another 10 years or 100,000 miles. A drunk driver plows into the rear-end of your vehicle and pushes your Explorer into another large SUV causing your airbags to go off. Most likely, your Explorer will be a total loss as each airbag alone tends to cost about over $1,000 to replace.

In Kentucky and Indiana, an insurance company is required to total out a vehicle if the repair costs equal or 75% (in Kentucky) or 70% (in Indiana) of the value of the vehicle. This is a link to a website that describes what I am talking about and lists the percentages for each state, http://www.carinsurance.com/Articles/total-loss-thresholds.aspx.

The problem being that when a car is a total loss, the insurance company owes you the fair market value of the vehicle, not the replacement value.

Therefore, in my example, you could recover the $7,000 the Explorer was worth with some fees for taxes and titling the vehicle. The fact that it may cost you more money to replace that vehicle with something just as good, is irrelevant in the eyes of the law.

Yes, you can keep your vehicle if an accident totals your car. Nothing in the law requires you to turn over your vehicle to the insurance company. However, the insurance company will deduct whatever money they would have gotten from a junkyard for the Explorer. This is usually referred to as salvage value and it tends to run about 20% of the fair market value of the vehicle. So in the case of the Explorer, you could keep it but the insurance company would pay you approximately $5,600 instead and you would have to apply to your local County Clerk for a salvage title.

You have to check with the County Clerk as to the specifics required for a salvage title but, I can tell you that you have to turn in the license plate so the vehicle can not be driven while it is being fixed and a mechanic has to complete an affidavit as to the work done with the appropriate receipts for the parts purchased.

Typically, if insurance totals your car, unless you can fix the vehicle yourself, know a backyard mechanic who can do the repairs cheaply or drive the car ugly because the damage to the vehicle was mostly cosmetic, it is better to let the insurance company haul the car off.

Using Collision Coverage

As a personal injury lawyer, I preach a lot about getting your medical bills paid and recovering your claim for pain and suffering from the insurance company for the at-fault driver. However, what about the damage to your car? What does my collision coverage actually cover? What about a rental car? Who is going to be responsible for fixing my vehicle and putting me in a rental car while it is being fixed? The answer to that question depends all upon the course of action you choose.

Collision coverage, on your own automobile insurance, is the easiest and quickest route to take. Ultimately, your insurance company is going to be responsible for paying for the damage to your vehicle, regardless of who caused the car wreck, less your collision deductible. The downside is that it may be months before you get your deducible back, if at all, and your collision coverage will not provide for a rental car.

Another route is to make a claim against the insurance company for the at-fault driver assuming he was insured and fault for the car wreck clearly rests with him. In such a case, there is no deductible and the insurance carrier will put you in a rental car while your car is being repaired. However, listed above, were two conditions that had to be met before the insurance company is going to agree to pay the first penny:

Their driver has to be at fault for the wreck and
They have to agree that they have insurance coverage for this wreck.

You have to show that the at-fault driver was negligent and that this negligence caused the damage to your vehicle. If you can’t prove negligence by the other driver, the insurance company will simply deny your claim thereby forcing you to either file a lawsuit or use your collision coverage. Remember it is not what you think happened in the car wreck but rather what can you PROVE. (See May 16, 2016 blog, https://attorneydesmond.com/law-depends-upon-can-prove/ .)

So what about the police report? Isn’t that enough to show the other guy was at fault? Sometimes but, recall that negligence means you can show that the other driver had a duty, breached that duty and but for that breach, you would not have suffered your damages.

Nothing in the law prevents an insurance company from making reasonable assumptions, contrary to the assumptions contained in a police report, as to who was at fault for a car wreck; as long as these assumptions are based upon reasonable interpretations of the facts.

When a car wreck involves a drunk driver or a rear-end collision while you are stopped at a traffic light, it is pretty easy to show the other guy was negligent. However, when you have two drivers who both claimed to have entered the intersection on a green light, how do we know who is telling the truth and can’t an insurance company reasonably assume that their insured is being honest?

The second issue is that the insurance company has to have had valid insurance on that vehicle or the driver at the time of the car wreck. Insurance companies can deny insurance coverage for a variety of reasons including but not limited to: their insured is not cooperating with their investigation; the policy premiums have not been paid; they did not insure that driver; or that did not insure the vehicle involved in the car wreck. If this happens, you either have to use your collision coverage or try to find other insurance on this driver to cover the damage to your car.

If you don’t have collision coverage and you can’t find any insurance on the other driver, you may be looking at a lawsuit to try and recover for the damages to your vehicle. The problem being that lawsuits are lengthy, expensive processes that can end with you trying to collect on Judgment wherein the at-fault driver has little to no money to pay that Judgment.

In writing this blog, I realized I may need to address it a little deeper with a future blog or two. So for the moment, I would suggest you call me should you have questions about your damaged automobile. The call is free no matter whether we pursue a personal injury claim or not. You can reach me on my phone at [number]. FYI, since it is my phone, you can text me at that number as well should you prefer that method of contact.

Year: 2017