Motorcycle Accidents Archives

Dealing with Bills from Motorcycle Wrecks

In a recent podcast episode, I discussed the law concerning motorcycle wrecks at length. It’s so important that I took my outline for that podcast and I elaborated on it below. I hope this information assists you and don’t hesitate to call me at 502-609-7657 if you have concerns about your motorcycle accident.

Personal Injury Law for Motorcycle Wrecks

Usually, when someone is involved in a motorcycle collision, there are high damages (e.g. medical bills and lost wages) and insurance coverage on that at-fault driver that is inadequate. One of the biggest responsibilities of a personal injury lawyer handling a motorcycle accident is addressing how the medical bills from a motorcycle wreck are going to be paid. After all, the medical bills alone may exceed the applicable insurance coverage on the at-fault driver.

Keep in mind that the job of a good personal injury lawyer is not only to maximize how much he can get you with right hand BUT ALSO and EQUALLY IMPORTANT to minimize the deductions from your personal injury settlement with his left hand (e.g. health insurance liens, attorney’s fees, unpaid medical expenses). A good personal injury attorney has both these roles. It’s most clearly evident in Motorcycle accidents. It’s one of best examples of the dual roles a good personal injury lawyer must accomplish.

Before the wreck

Make sure you get UM and UIM coverage on your motorcycle policy, not just the automobile policy. PIP coverage is not standard with motorcycle policies but it can be bought as optional PIP coverage though. Always, assume that there is an exclusion wherein your car insurance policy will not apply to motorcycle wreck. Typically, there’s an exclusion (a provision in that long insurance policy that says we won’t cover you while doing something). A common one is a coverage exclusion while you are operating a motorcycle or if the vehicle is regularly owned and operated by you, but not listed in the insurance policy. We may look at your automobile insurance policy for further insurance coverage if you were severely injuries; however, we want the automobile policy to be a fallback position.

At the Crash Scene

Motorcycle wrecks often involve EMS transportation to the Emergency Room. Plan on having your health insurance cover the medical expenses because of lack of PIP coverage on your motorcycle. Yes, your health insurance has a lien against your settlement and their subrogation claim will need to be addressed at the time your personal injury claim is settled.

If friends or family are present at the accident scene, have them get names of witnesses, take photos (of the scene, the vehicles, bruises and cuts) and look for cameras. This will help to preserve valuable pieces of evidence to be used in negotiating with the insurance adjuster and/or as evidence if the claim proceeds to a jury trial.

I will meet with a client at the Hospital or at Home

When I meet with a potential client at the hospital, our discussion usually involves a lot of speculation because I don’t know the details of all the applicable, insurance coverage. It is a little bit like a doctor warning of all possible outcomes from a surgery (i.e. because unknown liability limits.

I will get the Police Report

I use http://www.buycrash.com to download police report off the internet. One thing I immediately look at is which driver does the Officer list as the number one driver. On the police report, the at-fault driver, according to Officer’s opinion, is usually the number one driver. Remember Kentucky is a “pure comparative fault” state, so a personal injury claim may still exist even if the majority of fault is placed on the motorcycle rider.

I will contact Their Insurance Company

I will open a claim with the insurance carrier for the at-fault driver. As your injury attorney, I may have to run the license plate with the County Clerk to track down insurance on the at-fault driver. Insurance coverage can exist through the driver or owner of motor vehicle.

Final Thoughts

As you can see, dealing with medical bills from a motorcycle wreck is extremely complex. There are many factors to consider. Probably the most important factor is does your attorney have extensive experience handling motorcycle accident claims?

If you’d like to discuss your specific situation, you can call me on my cell phone at (502) 609-7657. I understand how to effectively represent victims of motorcycle collisions. I’ve been doing it for many years.

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.

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.

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.

Switzerland County Indiana Motorcycle Accident

Our local news station, WDRB, reported today about an Indiana motorcycle accident in Switzerland County. There were two people on the motorcycle. The driver was fatally injured and the passenger sustained injuries serious enough to be flown to a Cincinnati hospital.

The motorcyclist ran into a deer on State Road 156. The Harley-Davidson then crossed into the other lanes and was struck by another vehicle. Neither the driver nor the passenger was wearing a helmet.

As an attorney, I understand the impact this situation will have on the family members. I’ve stood with families in hospital rooms and even at funerals. No one wants to make light of the seriousness of the loss.

However, as tragic as this accident is, it can be a learning opportunity for the rest of us. I uploaded a post last month about motorcycle passenger injuries. Now that summer is underway, we’re going to hear more stories about accident-related injuries and Indiana traffic fatalities. It’s an unfortunate fact on our Indiana roadways.

First and foremost, if you ride a motorcycle, please wear a helmet. I don’t know if that would have prevented the serious injuries and death in Switzerland County. What I do understand is the statistical proof that wearing a helmet can significantly reduce your risk of head trauma.

Next, as I wrote about in the post I referenced, above, a motorcycle passenger has a claim if he/she is involved in an Indiana motorcycle accident. In this circumstance, the driver is deceased. The passenger can still file a claim against the estate of the deceased driver.

To clarify a common misconception, an “estate” is not just something for wealthy people. When someone dies, the property, assets and debts usually become part of an estate. This estate includes the insurance coverage that someone has at the time of their death that might cover the personal injury claim of the passenger.

While I understand this sounds harsh, recall that the motorcycle passenger had such serious injuries so as to be flown to the University of Cincinnati Hospital. From experience, I can tell you that this helicopter flight alone probably resulted in a $30,000 to $50,000 medical expense.

To put that in perspective, a licensed driver in Kentucky or Indiana is only required by law to carry $25,000 per person in liability insurance. In other words, sometimes a personal injury claim is the only way an injured party can recover their medical expenses and their other out of pocket expenses. Typically, these types of motorcycle wrecks involved underinsured motorist coverage, from the passenger’s own automobile insurance, as the damages far exceed the available insurance coverage.

The Switzerland County Indiana motorcycle accident is a lesson for every motorcyclist and passenger. The WDRB story didn’t report specific information about the passenger, so we don’t know if he/she is a minor, relative or simply a friend. Hopefully, this individual will make a full recovery and begin to move forward. We wish them the best.

The simple lesson for all of us is that before the car or motorcycle wreck ever occurs, make sure you have at least $100,000 per person of uninsured and underinsured motorist coverage on every insurance policy you have for every vehicle. This is sound advice that applies whether you choose to represent yourself in an injury claim and/or whomever you may hire as your personal injury lawyer.

Category: Motorcycle Accidents