Car Wrecks Archives - Page 5 of 12 - Attorney Jim Desomond

Worst-Case Scenario Car Wreck

Worst-Case Scenario Car Wreck It is not surprising that personal injury lawyers have a less than perfect reputation. Every time you turn a television on, you see television commercials promising “big checks” or ”making the other guy pay.” However, those ridiculous slogans are not really what personal injury law is all about.

The legal system only allows you to recover money for the damages you have suffered because of someone else’s negligence. If you think about it, a truly fair system would require that the at-fault driver help you get your car fixed, pay the cost of replacing your vehicle and not just what it was worth and assist you in getting to your doctor’s appointments.

However, if personal injury law required those things, the system would be very similar to the laws governing divorce and family law. There would be a lot of fighting among strangers over who did what, why an appointment was reasonable or not and a lot of excuses as to why somebody failed to do what the Court ordered them to do.

Protect Yourself From A Flawed, Legal System

You have to plan for the absolute worst-case scenario and purchase, on your own car insurance, the coverage you need to handle a car wreck.

Assume for instance your vehicle was hit by an unemployed, drunk driver that resulted in you being hospitalized from a car wreck. The drunk driver had no insurance, was driving another person’s vehicle that was also uninsured. Finally, you don’t have health insurance to pay your medical expenses. This sounds pretty bleak.

Think about the true effects of this worst-case scenario. The person that hit you has no insurance to pay for the damages they caused. If you get any money out of them at all, it is likely to be small amounts generated over prolonged litigation. Further, you did not have health insurance so doctors, hospitals and chiropractors are hesitant to treat you because they don’t know if you will be able to pay your medical bills.

The common misconception about personal injury law is that the other guy will be responsible for paying my medical bills and as illustrated above. This idea is 110% wrong.

Further, when a car wreck happens, it is like a photograph was taken. You can’t remove anything from that photograph and you can’t put anything in it. If you don’t have the right coverage on your own automobile insurance before the car wreck occurs, you are out of luck!

So What Could You Do?

On your own car or motorcycle insurance, without any regard to what insurance the other driver may or may not have, carry at least $100,000 per person of uninsured motorist coverage, $100,000 of underinsured motorist coverage and $30,000 of no-fault or med-pay coverage.

This legal advice applies from the first day you drive a motor vehicle. Further, even though motor vehicle law differs by states, it really does apply no matter which state your vehicle may be licensed in. Ask your local insurance agent whether they agree with my advice but I would guess 90% of them will.

So yes, tell every member of your family and your extended family, wherever they may live, about this advice in regard to car insurance and/or any motor vehicle they may own, including motorcycles.

But It’s Too Expensive

While I understand that car insurance is costly, I refuse to lower my uninsured and underinsured motorist coverage in an effort to save on my car insurance premiums. My 17 year-old daughter just got added to my insurance policy and it added about $2,200 a year to the cost of my insurance. Nevertheless, I want to know that if the worst-case scenario should ever occur, I have the means of obtaining medical treatment for my family and recovering my out of pocket expenses for permanent treatment for medical conditions that I thought would never occur.

While I understand that you may think the worst-case scenario won’t happen to you, remember that my law practice is a small, boutique firm that encounters uninsured and underinsured motorists on a daily basis.

Consider The Statistics

According to the Insurance Institute for Highway Safety, about 11.5% of Kentucky motorists and 16.7% of Indiana motorists are driving around uninsured at any given time.

Also, while Kentucky and Indiana require a motor vehicle to carry at least $25,000 per person of liability coverage, some states, Florida for example, require as little as $10,000 of liability coverage per person. Either way, how can $10,000 or $25,000 cover medical bills of $30,000 from a surgery caused by the negligence of another driver much less your lost wages, co-pays or insurance deductibles?

If you ever read one of my previous blogs, you might say that you have heard this advice from me before and it would be true. However, right now, I am dealing with:

3 cases wherein the at-fault drivers were completely uninsured
2 cases wherein I am searching for underinsured motorist coverage because the client’s Emergency Room treatment alone exceeded $25,000
1 case wherein an unexpected surgery occurred and luckily underinsured motorist coverage was on my client’s policy
1 case wherein the client did not recover the full value of her claim because the at-fault driver injured multiple people and there was not any underinsured motorist coverage to pursue.

My point being the worst-case scenario happens every day in both Indiana and Kentucky and saving a couple hundred bucks on car insurance now, can cost you thousands later on.

Get a Police Report for your Louisville Car Wreck

Get a Police Report for your Louisville Car Wreck With the snowy weather and icy conditions, I figured it was time to discuss some general principles in regard to handling car wrecks and personal injury claims.

First, as I have preached before, please make sure all your vehicles have at least $100,000 per person of uninsured and underinsured motorist coverage on any automobile insurance policies. I regularly deal with injury claims wherein the other driver had no insurance or not enough insurance to cover my client’s medical expenses much less the full value of the personal injury claim.

Second, please understand that there are no slam-dunks when it comes to personal injury law and car wrecks. Yes, generally speaking, if someone hits your vehicle in the rear-end or they were turning left in front of you, they may be at considered at fault for the wreck.

To use a legal analysis, they were negligent in causing the wreck because they breached a legal duty (e.g. following your vehicle at an unsafe distance), that breach resulted in your damages. However, the majority of injury law, until a jury reaches its final verdict, is arguments. So if you have a case wherein an insurance company has accepted all liability for a car wreck, count your blessings because they could just as easily argue that you were 10 or 20% at fault for driving too fast or because their insured cleared most of the intersection.

Third, unless you obtain a driver’s insurance company and contact information at the scene of the car wreck, we are pretty much helpless until we can obtain the police report. Without the police report, we don’t know the location of the wreck, the contact information of the at-fault driver and with which company they appear to be insured. So as a result, as a general rule, it is worth waiting for the police to investigate the car accident. Recall that buycrash.com is a great way to check for the police report and to be able to print it up on your computer. However, on a car wreck that happened this week involving several trauma victims, I have had to contact LMPD directly to obtain some additional information. In doing so, LMPD shared the following information that might also be of assistance to you:

It can normally take up to 5 business days to be completed. . . With the corrected report number, you should be able to pull it up on buycrash (once it is ready). The other two ways to get the report once it is ready is as follows:

You can mail a request along with a self-addressed, stamped envelope and $5.00 cash or check to:

LMPD Records

701 W Ormsby Ave, Suite 001

Louisville, KY 40203

You can pick up a copy at the above address. The hours of operation are Monday and Thursday 8-5, Tuesday, Wednesday and Friday 8-4. Reports are $5.

Lastly, get checked out by doctor, chiropractor, hospital or an immediate care center within the first couple of days after a car wreck. Not everyone wants to make a personal injury claim from a car wreck and that is okay. However, as your personal injury lawyer, the other side of the coin is that I don’t want the veracity of your injuries and pains questioned. The longer you wait to seek treatment the more an insurance company may question whether your injuries stem from the car wreck or some other incident.

Reflex Sympathetic Dystrophy (RSD) Pain

Reflex Sympathetic Dystrophy (RSD), also referred to as Complex Regional Pain Syndrome (CRPS), is a condition that can be characterized by a variety of symptoms including pain, frequently a burning type of pain, tenderness, swelling of the area or extremity, sweating, flushing, warmth and/or coolness of the area, discoloration, and in some cases shiny skin.

How RSD develops is not well understood and some would say is unknown, however, it is believed to be caused by an irritation of nerve tissue or abnormal excitation of nerve tissue, which causes abnormal impulses along the nerves which in turn affects blood vessels and skin in the area. This seems to involve the involuntary nervous system, the peripheral nerves, and the brain. The peripheral nervous system is a network of 43 pairs of motor and sensory nerves that connect the brain and spinal cord to the entire human body.

Causes of RSD can be from a wide range of triggers including injury, surgery, shingles, heart disease, degenerative arthritis, stroke or other diseases of the brain, nerve entrapment or irritation such as in carpal tunnel syndrome, joint problems, cancer, specifically breast cancer, and certain drugs such as those used to treat tuberculosis and barbiturates, which act on the central nervous system.

Trauma From Car Wreck Injuries Could Trigger RSD Symptoms

RSD can come on suddenly or slowly over time. There are four stages of RSD/CRPS including the acute phase (stage 1), the dystrophic phase (stage 2), the atrophic phase (stage 3), and stage 4, which most patient’s never advance to and where there is involvement of the inner organs. The acute phase can last 3-6 months and often involves burning, flushing, blanching, sweating, swelling, pain, and tenderness. Patchy thinning of bone can be seen on x-ray in this stage. The dystrophic phase can also last 3-6 months and is marked by early skin changes including shiny, thickened skin and contractures (a shortening or hardening of muscles, tendons or other tissue). This stage is marked by persistent pain with a lesser degree of swelling and flushing. The atrophic phase can be longstanding and involves loss of motion and function of the involved area with contracture and thinning of the fatty layers under the skin. Often during this stage significant osteoporosis can be seen on x-ray.

Since there are few clinical tests that can detect RSD/CRPS, it is usually diagnosed based on the symptoms described above. Treatment for RSD can range from cool moist applications to the area to relieve the burning or stinging sensation. Exercise can help prevent contracture.

Medications may be helpful in reducing pain and swelling. For more persistent symptoms, cortisone (Prednisone) starting with high doses and gradually tapering may be prescribed. Medications such as amitriptyline (Elavil), which is used for nerve pain and depression, pregabalin (Lyrica) which is used to treat nerve and muscle pain, and clonidine (Catapres) which is a medication most often prescribed to treat high blood pressure, however, has shown benefits in treating CRPS involving chronic arm or leg pain developed after an injury, surgery, stroke or heart attack.

More advanced forms of treatment would include nerve blocks, implantable pain pumps, spinal cord stimulators, and even surgery to interrupted the nerves known as surgical sympathectomy.

The Kentucky Uninsured Driver Loophole

The Kentucky Uninsured Driver Loophole
There’s a legal requirement, per Kentucky law, that your car must have insurance coverage. Anyone who has read one of my blogs or has visited my website, www.AttorneyDesmond.com, has probably heard me preach about having at least $100,000 per of uninsured motorist coverage on both their automobile insurance and their motorcycle insurance. Nevertheless, it appears there’s a Kentucky uninsured driver loophole.
My blogs tell true stories of how a person injured in a car wreck in Kentucky, through no fault of their own and caused entirely by someone else’s negligence, ultimately discovered that the at-fault driver failed to have his or her vehicle properly insured. Consequently, my injured clients have to rely on their own automobile or motorcycle insurance to cover their medical bills and their claim for pain and suffering.
One of my most recent blogs dealt with the issue of suing an uninsured driver for my client’s pain and suffering and whether the potential recovery justified the cost of litigation. Several readers of that post raised the issue of how is it someone can be uninsured and still be on the road? Since personal injury law usually addresses the after-effect of someone not having their vehicle properly insured, I had to research some of the Kentucky Revised Statutes to find the answers. Unfortunately, from the information I am gathering, it appears that Kentucky law is totally inadequate to address the issue. I believe this creates a Kentucky uninsured driver loophole.
Most of the motor vehicle law for Kentucky is contained in what is known as the Kentucky Motor Vehicle Reparations Act. This Act can pretty much be found in Section 304.39 et. seq. of the Kentucky Revised Statutes. KRS 304.39-080 (5) of the Kentucky Motor Vehicle Reparations Act states that if you own or operate a vehicle registered in Kentucky, you must have at least the minimum amount of liability insurance which is set out in KRS 304.39-110; which is an insurance policy with a single limit of $60,000 or limits of $25,000 per person, $50,000 per accident and $10,000 in property damage.
If you fail to have your vehicle insured, the registration for your vehicle will be revoked, see KRS 304.39-080(5) and KRS 304.39-090, pursuant to KRS 186A.040 and you will be subject to the criminal penalties laid out in KRS 304.39-060.
So, when we are pulled over by a police officer, that officer will has a computer system in his vehicle, known as a Mobile Data Terminal (“MDT”), which is linked to a database referred to as AVIS, Automated Vehicle Information System. This database maintains title, registration, and insurance information for all vehicles, boats and trailers registered in Kentucky.
When an insurance company cancels or does not renew an automobile insurance policy, it is required to provide the Kentucky Department of Vehicle Regulation with the VIN number of the vehicle. If that VIN number does not appear in AVIS for two consecutive months, the Department has to send the insured a statement that they have to show proof of insurance within 30 days or the registration of the vehicle will be revoked. See KRS 186A.040.

This is the part the concerns me; the only proactive step taken by the State of Kentucky when it is informed that a vehicle is not properly insured, according to the AVIS system, is to revoke the registration of that vehicle!

The County Attorney is not even informed of this revocation of the registration unless that registration has been revoked 3 times within a 12 month period. See KRS 186A.040(4)(b). When State Representative Ron Crimm attempted to amend this statute, through HB 337 in 2010, so that the County Attorney would prosecute the first time the vehicle’s registration was revoked. The bill was shot down in part because the Kentucky County Attorney’s Association opined that there would be hundreds of more prosecutions thereby resulting in a significant financial burden to County Attorneys and local jails for the housing of inmates.

Risks of the Kentucky Uninsured Driver Loophole

So logically, according to the current status of Kentucky Motor Vehicle law, I can stop paying my for my car insurance and not until 90 days later, (two months of no insurance showing on my vehicle through AVIS and 30 days notice required by KRS 186A.040), will the registration for my vehicle be revoked. Thereafter, unless I am pulled over and issued a citation, I won’t be subject to criminal prosecution for no insurance so I can renew my license plate just before it expires and effectively save money by not having to pay for car insurance for approximately 9 months. To me, this is a dangerous Kentucky uninsured driver loophole.

Please understand that I am in no way advocating that someone operate a motor vehicle without car insurance.

If you do so, you can be subject to multiple claims from other driver’s for your negligence and even if you were not at fault for the car wreck, you cannot recover the first $10,000 of your medical expenses and lost wages. See KRS 304.39.060. However, I am shocked at what appears to be a big hole in criminal law in regard to Kentucky drivers who fail to carry the proper insurance. Again, as I have said hundreds of times before, there is nothing in Kentucky law that guarantees the at-fault driver truly has liability insurance to cover the damages he causes through in a car wreck.
I am not a politician and nor do I have any desire to be. In fact, out of all my blogs, this one has tended to violate one of my own rules and been overly complicated, by citing statutes, rather than simply addressing the needs of the typical Kentucky driver. However, I thought it was important that you, the consumer, could fact check my sources.
Very simply, the safety of you and your family, while operating a vehicle on Kentucky roadways, needs to be your primary concern. Even if the Kentucky Legislature amended the law so that an uninsured driver would be prosecuted sooner, there is still no guarantee in the law that he could be fully responsible for the injuries and damages he might inflict through his negligence.
My legal advice is remains the same. Rather than which personal injury lawyer you choose or which insurance is company is “best”, make sure each and every motorcycle or car insurance policy you have has at least $100,000 per person of uninsured and underinsured motorist coverage.
Through the analysis described above, there is no guarantee that the other driver truly has car insurance and even if he does, it can be as little as $25,000 per person. Therefore, you need to protect yourself before the car wreck by putting on your own automobile insurance policy the types of insurance you may need should you be involved in a serious car wreck. Don’t be a victim of this Kentucky uninsured driver loophole.

Watch this Brief Video for more Information about Uninsured and Under-Insured Motorist Coverage

Filing a Lawsuit Against an Uninsured Driver

I filed a lawsuit against what appears to be an uninsured driver this weekend. The Jefferson County Clerk has set it up so I can file a Complaint, the document that starts a lawsuit electronically from my computer. However, the filing fee for a lawsuit tends to cost me about $198 for each lawsuit filed with the Jefferson Circuit Court. The question is did I waste my money filing a lawsuit against an uninsured driver?

According to the Insurance Information Institute, about 11.5% of Kentucky motorists were, in violation of Kentucky, driving without insurance on their automobile. For Indiana, the rate was closer to 16.7%. https://www.iii.org/fact-statistic/facts-statistics-uninsured-motorists. So when a car accident or a motorcycle wreck occurs, one of the first questions a personal injury attorney has to deal with is whether the at-fault driver, or the vehicle they were operating, was insured.

The easiest way to find insurance coverage on an at-fault driver is hope that the police report has the proper insurance company listed. If that does not work, I will typically run the license plate of the at-fault vehicle with the Jefferson County Clerk. The Clerk can provide me with the insurance company and policy number the last time that vehicle was registered.

As a last resort, I will send the driver and owner of the at-fault vehicle a letter asking for their insurance information and threatening to file a lawsuit if they do not cooperate. The problem is filing a lawsuit against an uninsured driver may not be worth the time and expense involved.

Recall that a Judgment is really just a piece of paper that says someone owes you money. So, in essence, a Judgment against someone can be worthless if they have no assets to collect it against or if they can bankrupt that Judgment by filing Bankruptcy proceedings. So for the personal injury suits I filed, it could be that we won’t even recover the filing fee much less the value of the client’s personal injury claim. Granted, in Kentucky, K.R.S. 187.410 allows me to revoke someone’s driving privileges if the unpaid Judgment relates stems from a car wreck. However, if the at-fault driver files Bankruptcy, the suspension, and my client’s Judgment, is dissolved.

Nevertheless, I believe this instance justified a personal injury lawsuit. My injured client had an initial Emergency Room bill in excess of $19,000 and he may not have had uninsured motorist coverage either. As a result, unless I can find insurance coverage on the at-fault driver, my client really has no source to recover his pain and suffering claim from.

However, in this instance, my first goal is not to recover the value of his personal injury but rather, to keep my client from owing a large amount of medical expenses for a car wreck that was not his fault.; to do that, I’m going against the odds and hoping that filing a lawsuit against an uninsured driver will discover insurance coverage not readily apparent.

So what’s my fallback position(s) for everything? If all else fails, I will have to use health insurance to pay the medical bills. My client appears to be qualified for Medicaid after the car wreck occurred. While Medicaid will have a right to recover whatever medical expenses they pay out through what is known as subrogation claim or a right of reimbursement, they can only recover the amount that is actually paid to satisfy the $19,000 medical expense. My hope is that the amount Medicaid seeks to recover will be about one-third of the $19,000 expense. This way, I can reserve my client’s no-fault coverage of $10,000 and use that no-fault, a.k.a. as PIP coverage, to satisfy Medicaid’s subrogation claim.

Yes, in this worst-case scenario, regardless of the personal injury lawsuit, the client can not recover any more towards the value of his personal injury because the at-fault drive was uninsured and he did not purchase uninsured motorist coverage before the car wreck. However, in Kentucky, 99% of the time you are entitled to no-fault benefits of at least $10,000 as long as the car wreck happened in Kentucky and you were not driving a vehicle you owned that was uninsured.

As a result, this no-fault coverage may be the only insurance coverage that exists for this car wreck. Consequently, we have to stretch that $10,000 in no-fault coverage in every way possible so that the client, while uncompensated for his personal injury claim, will not owe medical bills for a car wreck that he did not cause.

At the end of the day, filing a lawsuit against an uninsured driver at least provides valuable information to determine my client’s best options.

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Category: Car Wrecks