Episode 14: On today’s episode, Jim Desmond continues the discussion from his previous episode. He’ll answer Frequently Asked Questions from clients. So many people are either confused by the legal system or simply don’t understand how it works. Today’s discussion will hopefully help you to better understand issues related to auto accidents.
Click here to listen to the previous episode (Episode 13).
Does Texting and Driving Matter in an Auto Accident Case?
Jim explains that the core issue is “fault.” Kentucky is a pure comparative fault state. The damages can be divided between the drivers, depending upon how much of the fault can be attributed to each of the drivers. Indiana is a modified comparative fault state. In Indiana, you can’t be more at fault than the other driver (i.e. 51%) in order to be able to receive compensation for your damages.
If it can be proved that one of the drivers was texting at the time of the collision, this can go directly to the issue of fault.
Should I Hire an Attorney?
Jim talks about what could happen if you don’t. He uses the example of selling your home without a realtor. Yes, you can do it, but the realtor may be able to do it quicker and with better results. The law is very complicated. Your claim may involve senior adjusters who are very skilled at negotiating to minimize what the insurance company ultimately pays you.
Find an attorney you’ll be able to work with directly. You also want an attorney who deals specifically with your type of case. A divorce attorney may know that area of law, but it doesn’t mean he/she is prepared to effectively handle a car wreck case.
What Is the Kentucky State Minimum Amount of Insurance?
The state minimum was established in the 1970s. Unfortunately, it hasn’t been raised since then. The cost of medical treatment, the cost of repairing your car and many other expenses have significantly increased, since the 1970s. This presents a problem for people who are in an accident due to the other driver’s negligence. The at-fault driver is driving legally as long as they have the state minimum amount of insurance ($25,000). The minimum for property damage coverage is $10,000.
How Can I Avoid Getting Stuck with the Expenses if the Other Driver Only Has Minimum Coverage?
Jim always recommends you carry a significant amount of Under Insured Motorist Coverage (UIM). This portion of your automobile coverage can be used to cover expenses, once the at-fault driver’s insurance has been used up. UIM coverage is for your bodily injury, but doesn’t apply to property damage.
If the at-fault driver is driving without insurance, your Uninsured Motorist Coverage (UM) can be used to help cover your damages.
Yes, both are policies you are paying for. However, remember, these coverages are extremely important when the at-fault driver either doesn’t have enough insurance, or doesn’t have any insurance at all.
Jim explains that Kentucky has a statute the states your insurance rates won’t go up because you used your UIM or UM coverage. Remember, you weren’t the at-fault driver. You’re simply trying to get your expenses covered. Additionally, you’re paying for these policies, so why should your insurance company punish you for something you’re paying them to cover?
Can I Get Around the Fact that I Signed the Release?
In a personal injury case, the release is a document that is signed by the injured person, at the end of the case. The release itself prevents any further financial responsibility for the insurance company related to the case. Once the release is signed, the case is done.
If something else happens, such as a problem related to a surgery or other issue, the insurance company cannot be held responsible to pay for the medical expenses. Remember, you released them from future liability.
This can be extremely problematic if you accepted a quick settlement offer from the insurance company. In that situation, it’s possible you haven’t competed your medical treatment. There are many complications that may still develop, as a result of the injuries you sustained in the collision. Once that release is signed, the insurance company is legally off the hook.
Should I Sign the Paperwork the Insurance Company Sent Me?
Jim explains that you need to be careful. You might not understand or realize what you’re signing. If the company is your insurance company, it may be okay to sign. It could be a medical authorization giving them permission to request your medical records. If it’s a property damage only release, it may be okay to sign. Again, it would be a good idea to have an attorney represent you so that you don’t accidentally give away your rights.
Be Careful of What You’re Including and/or Excluding in the Release
The release should include the phrase, “exclusive of the no-fault lien.” You want to make the no-fault carrier (PIP carrier) has to deal with the issue separately. Kentucky is a no-fault state which means you and your passengers typically each have an automatic $10,000 available to cover medical expenses and lost wages. You don’t want to accidently forfeit those funds because you signed a legal document you didn’t fully understand.
Jim Desmond is very willing to work with people to review the documents to ensure they fully understand what’s going on. This is why he provides his cell phone (502) 609-7659.
What Happens if I Got Sued, but Never Received a Summons?
This is a fairly common issue, believe it or not. Generally speaking, a subpoena is served to a witness and a summons is served to someone being sued. A summons is usually sent by certified mail or delivered by the sheriff. It will normally include the official complaint.
Most people don’t realize a summons normally doesn’t include a court date or something to sign. You have to file a written answer in the proper court as a response to the complaint. It’s best to have an attorney handle this for you. If you fail to properly file a response, the other party can move for a default judgement.
In a default judgement, the other party argues that you failed to properly respond, since everything in my complaint is true, the judge should simply rule in their favor. If the judge grants the judgement, the other party now has the ability to collect against you.
If there’s a default judgement against you, they can get your driver’s license revoked, potentially have your wages garnished or other measures. If you hire an attorney, you may have to deal with attorney fees to fight the default judgement.
If you’re in an accident and you have insurance, you should contact your insurance company and ask them to open a claim. You’ll want to be sure they assign defense counsel to represent you.
If I Have 2 Years to File an Injury Claim from a Car Wreck, Can I Wait A few Months to Contact a Lawyer?
The short answer is you shouldn’t wait. The 2-year period refers to the statute of limitations. This is the period during which you can file a claim. If you go beyond that specific period of time, you are barred from filing a claim. Kentucky and Indiana have different statues regarding when the time ends. In Kentucky, it may be extended beyond 2 years from the date of the collision.
It’s important to understand you’re building your claim from day one. Your medical records and other evidence are important factors. The longer you wait to seek medical treatment, the easier it will be for the insurance adjuster to successfully blame some other issue for your injuries. Maybe you seek treatment, but then don’t continue with the prescribed treatment, it may be used to minimize the extent of your injuries from the automobile accident.
In serious accidents, your attorney may need to hire an accident reconstruction expert to document and recreate what happened. Evidence can fade away, get lost or simply be forgotten.
The longer you wait to hire a lawyer, the more difficult it will be for him/her. This is why preserving evidence is so important at the accident scene. If you’re able to take pictures of skid marks, the position of the cars or other facts, a photograph becomes valuable evidence. The same goes for cuts, bruises or other injury-related pictures.
Doesn’t the Police Report Provide the Evidence I’ll Need?
Actually, no. The police officer probably wasn’t a witness to the collision. The officer will fill out a report based on the stories each person provides. The officer may include other comments about what was found at the scene. Legally speaking, the police report is hearsay. However, this is a factor in your auto accident claim.
Can Back Child Support Affect an Automobile Accident Claim?
In Kentucky, while you have a personal injury claim, the Child Support Division will have a lien against your case. They will often exempt medical expenses and attorney fees, but the can assert a right to maximum amount of your settlement required to satisfy the back child support. There’s really nothing your attorney can do to prevent this from happening. However, you attorney may be able to negotiate some room for extenuating circumstances.
For more information about Louisville Personal Injury Attorney Jim Desmond, visit www.AttorneyDesmond.com.
The information provided on this podcast is for general informational purposes only. It should not be construed as legal advice and does not constitute an attorney-client relationship. You should seek the advice of an attorney for guidance related to your specific situation. I am only licensed in Kentucky and Indiana, so the general advice provided may not apply outside of those states.
This podcast maybe freely shared, but may not be the modified or edited in any way. This is an attorney advertisement. Principal office is located in Louisville, KY. Co-host Jim Ray is a non-attorney spokesperson.