Attorney Jim Desmond

Experience the Desmond Difference

desmond law logo e1638986956938 768x573

Category: Car Wrecks

Filing a Lawsuit Against an Uninsured Driver

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.

Seat Belt Safety Laws

Seat Belts Save Lives Kentucky Indiana Injury LawyerOne of the leading causes of death among those between the ages of 1 and 54 in the United States is motor vehicle crashes, and one of the most effective ways to reduce injuries and save lives is the use of a seat belt.

All 50 states have some form of seat belt law, be it a primary offense in which a police officer can pull someone over for him/her or passengers not being properly restrained or a secondary offense in which an officer cannot pull someone over solely for the offense of not wearing a seat belt, however, if pulled over for another citable violation and unrestrained, the officer can issue a ticket for not wearing a seat belt.

Currently in 18 of the 50 states, the seat belt law is considered a secondary offense with the exception of Colorado, which although is a secondary offense state for adults, children not properly restrained is a primary offense with a much larger fine.  New Hampshire is the only state not requiring adults to wear seat belts, however, they do have a primary child passenger safety law covering anyone under 18.  All other states have a mandatory seat belt use law for drivers and front seat passengers.

We’ve all met that person who knew of someone whose life was spared because they were NOT wearing a seat belt, however, the chances of this happening is slim to say the least! One study from 2002 estimated that 4,200 lives could be saved each year if 90% of the population in the United States wore seat belts.  There are rare instances when a seat belt can cause harm.

A friend of mine who is an ICU nurse even had a pediatric patient with a liver laceration following an automobile accident with a lap belt, however, this was not supported by a shoulder strap and injuries sustained from wearing a seat belt are generally surface bruises and/or abrasions and significantly far less severe than injuries that may have been sustained from not wearing a seat belt.

According to the National Highway Traffic Safety Administration (NHTSA), seat belts have saved roughly 300,000 lives in the United States since 1975. 

Seat belts were invented in the mid-19th century by an English engineer named George Cayley, however, the first U.S. patent was granted to Edward Claghorn of New York on February 10, 1885.  Motor Vehicle Safety Standard enacted a federal law on January 1, 1968 that required all vehicles with the exception of buses to be fitted with seat belts in all designated seating positions.  The world’s first seat belt law was in 1970 in Victoria, Australia, however, in the United States the first state to enact primary enforcement seat belt laws was New York in 1984.  By July of 2010, 31 states including the District of Columbia had primary seat belt use laws while 18 states had secondary enforcement laws.

One study found that the use of seat belts in primary belt law states averaged 88% and was less in states with weaker enforcement laws.  Studies have also been conducted by the Centers for Disease Control and Prevention and have found increased belt usage in primary belt law states and decreased fatalities in these states as well.  Overall, serious injuries and fatalities are reduced by wearing a seat belt, and unless you are an adult in New Hampshire it is the law in one form or another so buckle up!

This article is provided by the Desmond Law Office, Louisville, Kentucky.  We handle accident cases in both Kentucky and Southern Indiana.

Rib Fractures and Car Wrecks

X-Ray image of the human chestThe most common injury sustained from blunt trauma to the chest is rib fractures and account for more than half of all thoracic injuries from non-penetrating trauma.  Whereas in the elderly the most common cause of rib fractures is a fall and in youth the most common cause is recreational or athletic activities, in adults, motor vehicle accidents are the most common cause!

Fractures of the 1st and 2nd ribs are often associated with vascular injury and carry a much higher mortality rate.  X-rays are often used to diagnose rib fractures, however, sensitivity can be as low as 50%.  CT scan and MRI are much more sensitive in detecting rib fractures.

Pain control is of utmost importance in management of rib fractures in order to keep the patient breathing as deep as possible and clear pulmonary secretions (i.e., coughing).  An intact chest wall, which includes the ribs, clavicles, sternum, and scapulae, is necessary for normal respiration.  Due to the risk of pneumonia, binding the chest is no longer recommended.  Kinesiology tape has proven quite successful in stabilizing a rib fracture and reducing severe pain.

Minor rib fractures can often be controlled with narcotic pain medications while in more severe cases intercostal nerve blocks are required.  Surgery is generally only recommended when a broken rib has penetrated an internal organ or if there is a malunion of the rib when healing.

Fragments of fractured ribs can act as penetrating objects and can result in a hemothorax, which is a collection of blood in the space between the chest wall and the lung – also known as the pleural cavity or a pneumothorax, also known as a collapsed lung and occurs when air leaks into the space between the lung and the chest wall.  This collection of air on the outside of the lung pushes on the outside of the lung causing it to collapse.  Symptoms of a pneumothorax typically include sudden sharp one sided chest pain and shortness of breath.  A hemopneumothorax is a combination of both conditions.

Ribs often fracture at the point of impact or the posterolateral bend, which is the weakest spot of the rib.  In the case of first rib fractures, those which can be life threatening, the weakest point is at the groove for the subclavian artery.

In a car wreck, the mechanism for first rib injury seems to be the violent contraction of muscles caused by the sudden forward movement of the head and neck.  The prevalence of reported rib fractures (with only approximately 70% of chest injury being reported annually) is higher in countries with a higher incidence of motor vehicle accidents.  The incidence of rib fractures in children is low due to their more pliable, elastic ribs.

Rib fractures often take six weeks to heal and return to work or activities of daily living during that time depend on the activity involved and the level of pain.  Generally, when pain is not present at rest, the patient can gradually begin to increase their activities.  It is also recommended for patients to sleep in a recliner during this initial time as getting in and out of a flat bed can be extremely painful and continue to stress the fracture.

PTSD After a Serious Car Wreck

PTSD After a Serious Car WreckWhat is Posttraumatic Stress Disorder (PTSD)? After someone goes through a traumatic event or life threatening situation it is not uncommon for that person to experience anxiety, flashbacks of the event, nightmares, increased jumpiness, etc.  This has often been associated with war veterans or persons who have been physically or sexually assaulted, however, it’s also possible someone  to experience PTSD after a serious car wreck, as well.  If the symptoms last longer than three months, create great stress, and disrupt work or home life it is important that person seek help.

Due to the high volume of commuter and personal travel in the United States there is increased incidence of personal injury and even fatalities.  “In any given year, approximately 1% of the U.S. population will be injured in motor vehicle accidents (MVA). Thus, MVA’s account for over three million injuries annually and are one of the most common traumas individuals experience.” [U.S. Department of Veteran Affairs; National Center for P.T.S.D.]

Although not everyone involved in a car wreck will develop mental health problems, those that due generally experience PTSD, major depression and anxiety disorders.  This may range from anxiety when driving to an outright fear of driving.  On study reported that 15% of serious car wreck survivors reported a phobia of driving.

The risk factors for developing PTSD after a serious car wreck can be broken down into 3 sets of variables.  Basically, pre-accident variables, accident related variables, and post-accident variables.

  • Pre-accident variables would include things like the person having had a poor ability to cope with stressful or traumatic events previously, pre-accident mental health issues such as depression, and a poor social support system.
  • Accident related variables would include things like the amount of physical injury, the potentially life threatening injuries, and the loss of significant others in the accident. As the amount of injury and fear of dying increase, the change of developing PTSD also increases.
  • Finally, post-accident variables that can be predictive of the development of PTSD following a serious car wreck may include the rate of physical recovery from injury, the amount of social support the person has from friends and family as well as the level of active re-engagement with both work and social activities. Survivors of an automobile accident should be encouraged to maintain as much of their pre-accident lifestyle to the extent that their physical injuries and/or limitations will allow.  This coping strategy along with as much support from friends and family as possible tends to lead to positive outcomes.

What kind of treatment is there for PTSD after a serious car wreck?

One thing different about automobile accident-related PTSD that is different from PTSD caused by other traumas is the increased chance of developing a chronic pain condition.  Common treatments may include behavior therapy, cognitive therapy, and medications.  Working with a chronic pain specialist is often useful in helping the person manage the physical pain caused by the accident.  Whether one treatment is used or a combination of treatments are used, it is best to recognize symptoms early on and get help!

Types of Sprains and Strains

Personal Injury ClaimsHave you been in an car accident?  Are you experiencing neck or back pain?  Maybe you’ve been diagnosed with a cervical, thoracic or lumbar strain/sprain.  What is the difference between the types of sprains and strains?

A sprain is a stretching or tearing of the ligaments in the area. Ligaments are the tough bands of fibrous tissue that connect two bones together in your joints. The most common location for a sprain is the ankle.  A strain is the stretching or tearing or muscle or tendon. A tendon is the fibrous cord of tissue that connects muscles to bones.  Both sprains and strains are soft tissue injuries. Confusing, huh?

A cervical spine or neck is the most mobile segment of the spine.  This mobility makes it susceptible to strain or injury. This injury is often referred to as whiplash.  Although similar a cervical sprain is different than a cervical strain.  A cervical sprain is caused by tearing, twisting or stretching of the ligaments while a cervical strain is caused by damage to the muscles or tendons.  Symptoms of whiplash can be hard to ignore.  These may include pain, decreased range of motion of the neck and tightness in the neck. You will likely have pain or tenderness when you turn your head to look over your shoulder, and headaches are common that begin at the base of the skull and radiate toward the forehead, regardless of the types of sprains and strains.

A thoracic spine refers to the upper and middle parts of the back.  It connects with the cervical spine and extends down about five inches past the bottom of the shoulder blades where it connects with the lumbar spine or lower back.  The lumbar spine has 5 intervertebral (between the vertebrae) segments labeled 1 through 5.  The vertebrae are the small bones forming the backbone.  Thoracic and lumbar sprains and strains cause pain and spasm in the area and it is often difficult to bend or twist.

Types of Sprains and Strains

Treatment for all three of these sprains/strains is relatively similar and depends on the severity of the injury.  Most soft tissue injuries are graded on a scale from 1st degree to 3rd degree.  First degree sprains are mild with little or no pain or other symptoms.  2nd degree sprains can cause pain, muscle spasm and possibly some joint instability.  3rd degree sprains usually result from a complete tear or the ligament producing severe pain and joint stability.

Strains are graded in the same fashion with a 1st degree being mild causing little pain, 2nd degree causing some pain and loss of strength, and 3rd degree involving complete tears of the muscles and tendons with complete loss of muscle function.  In addition to pain, instability and weakness there may also be tenderness and swelling.

Treatment for all of the above generally includes decreased activity, ice for the first 48 hours and then heat thereafter, used of non-steroidal anti-inflammatory medications, and pain relievers.  Physical therapy may be recommended with targeted exercises to strengthen the back.  Although limited activity is recommended initially it should NOT be prolonged!