Archives for 2018

You Can Avoid Being the At Fault Driver

While everyone thinks it will never happen to them, we all know car accidents happen no matter how carefully you might drive. Nevertheless, you don’t ever want to be the one at fault for a car wreck. Not only can you not recover your damages (i.e. the damage to your car, rental car expense, pain and suffering, etc.), if you were at fault for the car wreck. Also, the other driver has a claim against you and your insurance company for all these items if your negligence caused the car accident. Of course, such a claim will most likely raise your insurance premiums, as well. However, you already know the solution: let every turn you take behind the wheel of the car be dictated by who has the right of way. This is an important step in helping you to avoid being the at fault driver.

Yes, we all learned that concept when first obtained a driver’s license but we forget how important it is for daily driving. When a police officer comes to an accident scene the first factor he is considering, when determining who was at fault for a car wreck, is who had the right of way. The same is true when your insurance agent is hearing your description of the wreck for the first time.

When I get a call from someone injured in a car wreck, I immediately ask them to describe the facts of the car accident for this very same reason. I need to be able to determine who was at fault for the car wreck to see if I can help that person. Most of the time, whoever has the right of way will determine who is considered responsible for the car accident. Why is this so?

Negligence is a legal term that applies to all car wrecks and means there was a legal duty, that legal duty was breached and but for the breach of that legal duty, you would not have suffered your damages. Whether it is an insurance company, a personal injury attorney or an investigating police officer, the first question we all have is who had the legal duty to avoid the wreck, which typically determines “who had the right of way”.

Let’s look at the instances in which the vast majority of the time, you will be most likely be considered at fault for a car wreck: 1) if you rear-end the other vehicle and; 2) you are turning left in front of the other vehicle or are crossing traffic.

The first one, hitting someone in the rear end, is common-sense. When you allow your vehicle to collide with the rear-end of another vehicle, the argument is you, not the vehicle you were following, had a legal duty to follow at a safe distance. You obviously breached that duty as you hit the other vehicle in the back end. It really does not matter why the other driver may slammed on his brakes, the vast majority of the time you will be considered at fault for the car wreck. To take matters to the extreme, what about if other driver claims he was trying to avoid a squirrel but you think he really slammed on his brakes intentionally because of road rage? Recall that the law is not about what we think happened but rather, what we can prove happened.

How you prove an intentional act on the part of the other driver? I can tell you from experience, it is very difficult to do so. Essentially, you would be trying to buck a strong presumption that your negligence caused the wreck while trying to prove a fact that is almost impossible to prove i.e., that the other driver acted intentionally. The key is to take preventative steps to avoid being the at fault driver.

For the second instance, turning left in front of another vehicle or crossing oncoming traffic, you have to understand that you ALWAYS have the duty to yield the right of way to the other vehicle. It’s one of the most important concepts to consider to avoid being the at fault driver.

When a person calls my law firm and tells me they were turning left, my first reaction is to cringe. Why? Because that other vehicle had the right of way and you didn’t! I will hear stories of how the other guy was speeding or came out of nowhere and the caller believes that this will change who was at fault for the car wreck. Usually, these are little factors that are difficult to prove because I can tell you right now, the other driver will say, “no, I was not speeding.” More importantly, these factors don’t change the big picture, i.e. the legal presumption in which is who ever had the right of way was not at fault for the car wreck.

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Yes, there are exceptions to this rule. A lady called the other day and she indicated she was turning left when the car wreck occurred, but she had a green arrow. Obviously, she legally had the right of way because of the green arrow and there was a witness listed on the police report that informed the investigating police officer of that fact. However from experience handing a lot of car wrecks, I can tell you that this would most likely have been a swearing contest between the two drivers as to who had the green light and the presumption of fault would have been against the lady, as her vehicle was turning left.

For the typical driver, a car accident is a pain in the neck that you wish never occurred. As a result, since you know you can’t completely wipe out the odds of being involved in a car accident, the next best thing is to take steps to avoid being the at fault driver by driving with the law on your side. How do you do that? Every action you take as a driver should recognize who, from a legal point of view, has the right of way. You understand that if you don’t have the right of way you have to be all the more cautious in regard to the driving of your vehicle. By doing so, you substantially decrease your likelihood of being involved in a car wreck and substantially reduce the chance that an insurance company or another driver is going to try to claim your negligence caused the car wreck.

Issues Involving a Default Judgement

This has been an interesting week because I received several phone calls from individuals who caused a car accident AND were not properly insured at the time of the car wreck. Now these callers are at risk of a Default Judgment and more. In a nutshell, the problem is that since they did not have valid car insurance at the time of the wreck, at least the following legal effects occur:

If another driver or their insurance company gets a Judgment against you, there is no one, other than yourself, to pay it;
If they obtain a Judgment against you, they can garnish your bank accounts and/or your wages directly from your Employer;
90 days after the entry of an unsatisfied judgment, your driver’s license can be pulled and this revocation will be honored by other states;
If you are going to try and defend and any lawsuits that might be filed as a as result of the car wreck, you will be responsible for paying your own attorney fees.

Benefits to Having Insurance

Our automobile insurance provides us with at least two things in every instance:

1) the payment of a claim that is being made against us, up to the maximum of the amount of insurance we purchased and;

2) a defense to any lawsuits that might be filed against us, at the expense of the insurance carrier, as a result of the car wreck.

In regard to the first element, the idea is that if we purchase $50,000 of car insurance through GEICO for example, we don’t have to pay the injured driver any money of our own until that $50,000 is exhausted. Our responsibility is only for the amounts that are $50,001 and up. However, because an insurance carrier has a legal duty to settle a personal injury claim within your policy limits if possible, we have a pretty significant protection to those kind of excess claims. Further, since insurance companies are in the business of making money, they don’t just hand out $50,000 every other minute but rather, they will fight an injury claim with whatever defense they may have and settle it for as little as possible; thereby providing you with another defense to the injured party’s claim.

However, if there is no GEICO, you, and no one else, are responsible for paying the claim(s) from the car wreck, assuming the car wreck was your fault. Yes, you can file Bankruptcy and avoid financial responsibility that way however, not all claims can be bankrupted and your credit will be ruined. Also, Bankruptcy laws only allow you to file Bankruptcy once every seven years.

Second, the insurance policy also provides you with a defense attorney, should a lawsuit be filed against you. When I make a personal injury claim against an at-fault driver, an insurance adjuster will evaluate the strength and weaknesses of my client’s claim and based upon those factors, he or she will make a settlement offer to resolve my client’s injury claim. If we cannot agree on a fair figure, I will file a lawsuit on my client’s behalf against the at-fault driver. When I do that, the insurance carrier will hire a defense attorney, at their expense, to defend the at-fault driver. The at-fault driver is not typically responsible for paying those attorney’s fees.

What’s a Default Judgement?

Let’s use the callers from this week to put these concepts in a practical context. For one of the callers, the insurance company had paid the injured party’s medical bills and the cost of repairing their insured’s vehicle. The insurance company had what is called a Default Judgment against the caller.

The essence of a Default Judgment is that the other party won without having to put their case in front of a jury because the caller failed to file a written Answer to the Plaintiff’s Complaint within twenty days from the time they were served with a Summons.

In other words, if you are ever served with a Summons, you are being sued and need to contact an attorney immediately. Most people think they can wait until a Court date is assigned to do anything and that is a very common, very inaccurate misconception.

In addition, that caller contacted me in response to the fact that her wages were being garnished as a result of this Judgment.

While we could make a Motion, i.e. a request to the Court, to set aside the Default Judgment, the Court is going to want a reasonable explanation as to why the original Summons was just ignored. Also, even if the Judgment is set aside, the caller still needs to defend the underlying case (i.e. the fact that she was negligent and this caused the car wreck).

Unfortunately, she is in a position where she not only has to be able to afford to pay for the legal fees related to raising a late defense but also, she still could be facing a Judgment, by the Judge or a jury, down the road. In this case, I advised the caller that she might want to call the defense attorney and see if his client would be open to a compromise. Since the Judgment was relatively small, I suggested she might if they might be willing to accept 50% of the Judgment as a total and final payment for any amounts owed. As long as she made sure any agreements they reached were clear, in writing and signed by the defense attorney as well, I thought she could probably handle this on her own.

Blocking a Default Judgment

For the other caller, the insurance company had sued him but he had filed an Answer to their Complaint which prevented it from obtaining a Default Judgment against him. However, now, they had served him with a set of Request for Admissions. Request for Admissions are basically a tool used in litigation wherein a party admits the veracity of the statements made unless they file written answers to the contrary before thirty days have passed.

As you can see, while the Default Judgement was blocked, when it comes to litigation there are many more tactics and strategies. The attorney knows you still have to defend the actions and respond to Motions. He/she knows that there’s still more pressure to be applied. Couple that with the fact that the attorney does this every day and fully understands how to use deadlines and trap doors. Their job is to do what it takes to get everything the client deserves. If you were on the other side, you’d expect your attorney to pursue every possible means available. It’s simply how it works.

The Solution

At the end of the day, many of these and similar situations can be avoided. I hope these examples have illustrated why it’s important to maintain your automobile insurance policies. Yes, they can be expensive. However, as the above examples show, even if you think you’re saving by not having insurance, the reality is you’re opening yourself up to significant risks, especially if there’s a Default Judgment. These include garnishments, license forfeiture, and expensive legal fees. Is it really worth the risks?

Dealing with Health Insurance Liens

With the onset of Spring, motorcycles are back on the road in Kentucky. In fact, Kentucky has over 100,000 motorcycles registered. It is estimated that nationwide over 80,000 motorcycle wrecks occur a year. So how does the injured motorcyclist get his or her medical bills paid when Kentucky law only requires that a driver carry at least $25,000 per person in insurance coverage? It is for this reason that motorcycle accidents pose a bigger challenge than the average personal injury claim. This is especially true when you consider the impact of health insurance liens.

Before the motorcycle wreck ever occurs, the smart motorcyclist understands that there is no guarantee under Kentucky law that a driver or a vehicle is truly insured and/or that the at-fault driver has enough insurance coverage to cover the medical bills for the injured motorcyclist. As a result, as soon as that motorcycle hits your driveway, I recommend that you have at least $100,000 per person of uninsured motorist and $100,000 per person of underinsured motorist coverage on your motorcycle insurance policy.

With the way automobile insurance policies are written and because most have exclusions about motorcycles, you cannot rely on your automobile insurance to protect you while riding your motorcycle.

The gist of uninsured motorist coverage and underinsured motorist coverage is that if the at-fault driver does not have insurance coverage or does not have enough insurance coverage to cover the whole value of your personal injury claim, we can use your motorcycle insurance and they will act like they insure the at-fault driver up to however much insurance you purchased.

On this issue, I want to make a point that might be easily overlooked. Your insurance company is going to fight your personal injury claim just as if they insured the at-fault driver. This is not a get rich quick scheme. Rather, the purchase of uninsured and underinsured motorist insurance makes sure that you are protected in the worst -case scenario ( i.e. the at-fault driver had no insurance or your damages far exceed his insurance coverage).

I have dealt with several cases over the years wherein people lost part of a leg from a motorcycle wreck or had multiple surgeries. This legal advice is trying to make sure your savings plan and the financial planning for your household stay on track even though you were injured in a motorcycle accident that was not your fault.

HEALTH INSURANCE LIENS

So, let’s jump ahead and assume the motorcycle wreck has occurred. In that situation, what are your options for getting your medical expenses paid. The first and probably best option is to use your health insurance to pay your medical expenses. Nowadays, health insurance carriers assert what is known as a subrogation claim against your personal injury settlement. The simplest definition of such a claim is that the health insurance carrier will pay your medical bills stemming from a car or motorcycle wreck but if you recover money from the at-fault driver, the health insurance carrier has the right to recover the money they paid out towards your medical bills from your personal injury settlement. They assert this right by using “health insurance liens.”

PROBLEM WITH HEALTH INSURANCE LIENS

The problem with these health insurance liens is that they invade a personal injury settlement, thereby reducing your net settlement. Health plans claim that they have superior rights to everyone, including the injured victim. (This is why choosing a good personal injury lawyer is so important. A good personal injury lawyer maximizes the amounts he can recover for his client with his right hand while reducing the deductions from the personal injury settlement with his left-hand.)

Nevertheless, the positive aspect of health insurance is that the health insurance carrier has contracts with hospitals and doctors that can reduce your medical bills. For example, I just dealt with a case last week wherein Anthem paid a hospital $2,800 to satisfy a $16,500 bill. Anthem has a right to recover the $2,800 they spent, not the full value of the medical bill. In effect, the reduction provided by health insurance contracts allow you, the injured motorcyclist, to stretch a dollar bill to cover more of the incurred expenses from a motorcycle wreck.

The above-described Anthem illustration also points out one of the ways in which Kentucky law is unfair to motorcyclists. Kentucky is what is called a no-fault state. The simplest description of Kentucky’s no-fault laws is that the insurance company for the vehicle you occupy automatically covers your medical bills and lost wages, up to a $10,000 limit.

For example, if you’re standing still at a red light and hit in the rear-end by a drunk driver, your own car insurance is going to be the no-fault carrier, even though you did nothing to cause this car wreck, and once you are done treating, that no-fault carrier will go against the insurance company for the drunk driver to recover the medical expenses paid on your behalf.

Kentucky law goes on to say that in exchange for this right to recover these no-fault benefits, the injured victim gives up the right to recover the first $10,000 of medical expenses and lost wages and it becomes the right of the no-fault carrier. If you don’t believe me, look up K.R.S. 304.39-060. This is the statute that transfers those rights to the no-fault carrier. Personal injury lawyers refer to this as the abolition of tort liability.

DON’T LOSE $10,000 OF COVERAGE

The problem for motorcyclist operators is that Kentucky law acts like your motorcycle was uninsured and because of the aforementioned “abolition of tort liability”, does not allow you, a motorcycle operator, to recover the first $10,000 of his medical bills or lost wages.

K.R.S. 304.39-040 states that a motorcycle operator or passenger is not entitled to recover no-fault benefits unless option no-fault coverage was purchased. Since no-fault coverage on a motorcycle tends to be rather expensive, most motorcycle owners don’t purchase no-fault coverage. As a result, KRS 304.39-060, the statute about the abolition of tort liability, still applies and the motorcycle operator cannot recover the first $10,000 of his medical expenses from the at-fault driver even though he did nothing to cause the motorcycle accident. In contrast, while a motorcycle passenger is not entitled to no-fault coverage, he or she can recover the first $10,000 of their medical expenses from the at-fault driver because KRS 304.39-060(2)(c) carves out an exception for the motorcycle passenger.

AVOIDING THE PENALTY

For the motorcyclist, to get around this “abolition of tort liability penalty” has to either purchase the optional no-fault coverage for his motorcycle or use his health insurance to pay his medical expenses. On the positive side, this abolition of tort liability is controlled by the total charge of the medical expense, not the reduced rate paid by the health insurance. In the Anthem example above, the motorcyclist could recover $6,500 of the emergency room bill (i.e. $16,500 less the $10,000 that could have been paid under no-fault insurance) even though Anthem satisfied that charge for $2,800.

One final point on this issue and how Kentucky law penalizes motorcycle operators. The Kentucky Motor Vehicle Reparations Act sets out the law in regard to no-fault benefits. The Kentucky Legislature recently amended KRS 304.39-241 to allow no-fault benefits to be directed towards a health plan’s subrogation claim. Insurance companies rely on this as another way to ensure payment of their health insurance liens.

To use the Anthem illustration again that arose from a car accident, I reserved the majority of my client’s no-fault benefits and directed the no-fault carrier to satisfy Anthem’s subrogation claim by paying them part of my client’s no-fault benefits; and in doing so, I stretched a dollar bill to put more money in my client’s pocket.

If the hospital for this car wreck had submitted that $16,500 emergency room charge to the no-fault carrier, they would have recovered $10,000 from my client’s no-fault carrier and my client would still have owed them another $6,500. Instead, Anthem reduced that charge to $2,800 making it so that the hospital was not owed any money, the health insurance lien was satisfied out of the no-fault benefits and my client had $7,200 remaining ($10,000 of no-fault benefits less the $2,800 paid to the health plan) in no-fault coverage to go towards her other medical expenses. The obvious point being that since a motorcycle operator is not entitled to no-fault coverage unless that have purchased optional no-fault benefits, a motorcycle operator cannot use KRS 304.39-241 to satisfy a health insurance subrogation claim.

What does all this mean for a motorcycle rider involved in a serious accident in Kentucky? Have at least $100,000 per person of uninsured and underinsure motorist coverage on your motorcycle insurance and make sure you and your passengers both have health insurance to cover your medical expenses, including health insurance liens. With these tools, there is a good chance we can make sure you are not left holding the bag for a bunch of medical expenses that were caused by a negligent driver.

Indiana Car Wreck and No Insurance on your Vehicle

Posted below is answer I put on Avvo.com for an Indiana Car Wreck wherein the injured party did not have car insurance:
On the issue of no insurance that’s a criminal charge and I don’t handle those kind of cases. You need to contact a criminal defense attorney.
On the civil case, you have a personal injury claim against the other person. Indiana does not penalize you for not having car insurance when it comes to your personal injury claim. (For example, in Kentucky, you can’t recover the first $10,000 of your medical expenses from the at-fautl driver if you don’t have car insurance.)
So you can ultimately recover your medical expenses, related to the wreck, from the other driver’s insurance. My suggestion to you is to go ahead and see a doctor or hospital and use your health insurance to pay for that treatment. Your claim relies heavily on your medical records and if you don’t have formal treatment, it looks like you were not hurting during that time period.
If you decide to make a personal injury claim against the other driver, your health insurance will have a lien against the case and the right to recover what they pay in medical bills from your settlement. However, your health insurance gets you the treatment you need right now and it will reduce the medical expenses,( i.e. the amount that would come out of your settlement for your treatment).
If you don’t have health insurance, you can go to a medical provider and see if they take a lien against the case for you to get the treatment you need. But, be aware that you are incurring medical expenses that way and you will owe those charges one way or another.

What to do when the Insurance Company won’t approve a rental car?

I just posted this answer on Avvo. In short, the question is what do you do about a rental car when the insurance company for the at-fault driver is claiming they can’t get hold of their driver.

On the police report, go to buy crash.com and see if you can print one up. If you can, fax it to the insurance company. You want to take away every excuse they throw at you. They do have a reasonable amount of time to investigate the claim. If this guy proves to be uninsured, remember that you can make an uninsured motorist claim against your own policy. Moreover, I understand that uninsured motorist coverage can cover your property damage, depending upon how the policy is written, in Indiana.

If you pay for your own rental, keep your receipt and try to keep the cost low. There is no guarantee that they will reimburse you in full. FYI, usually a liability carrier will only cover a rental car for 10 to 14 days so you want to start looking for a new car. Also, they owe you fair market value for the vehicle, not the payoff. So get together your receipts and your title as you want to show it is worth as much as possible.

Lastly, if you have any pain at all, get to the doctor. You want to get to the doctor. Injury cases live and die on the contents of the medical records. As a result, if you don’t have treatment for a time period, it looks like you were not hurting.

Year: 2018