Attorney Jim Desmond

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Tag: automobile accident attorney

Accountability Matters: Holding At-Fault Drivers Responsible

If you’ve been injured in an automobile collision, your medical bills will add up quickly.  This is especially true if you are still treating.  If those medical expenses exceed the other person’s insurance limits, are we letting the at-fault driver off the hook if we settle for their policy limits?  We are not.

The Kentucky state minimum in insurance is $25,000 per person.  This means as long as someone has $25,000 in insurance coverage per person, they are driving lawfully.  What it does not mean is that they have enough insurance to cover your medical bills or your claim for pain and suffering.  So, can I sue the at-fault driver and refuse to accept the settlement of $25,000, their policy limits? The answer is “Yes” but, I don’t recommend it.  Read further to understand why.

attorney Jim Desmond discusses letting the at-fault driver off the hook

If you sue someone, you are trying to get a judgment against them and then collect on that judgment. Well, if a person does not have any assets such as real estate and bank accounts, how are you going to collect on that judgment? The clear answer is you won’t.  As the old saying goes, you can’t get blood from a turnip.

So, instead of trying to sue someone beyond their insurance coverage, the better route is to put your insurance company on notice of an underinsured motorist claim.  In a recent case I am handling, I found $50,000 of underinsured motorist coverage that applies to the claim.

After I comply with a legal procedure known as Coots, see KRS 304.39-320, and your insurance carrier consents to you accepting the $25,000 offered by the at-fault driver, your insurance carrier acts like they insure the at-fault driver for another $50,000, in the case I am presently handling.

By filing the underinsured motorist claim, we have the ability to recover more dollars, beyond the $25,000, on your behalf.  Your insurance carrier, not you, will bear the burden and expense of suing the at-fault driver to recover any funds they pay out to you.

No one plans to get into a car wreck.  The results often complicate our lives in ways we never imagined.  While settling for the at-fault driver’s policy limits, even when your medical bills exceed that amount, it doesn’t mean we are letting the at-fault driver off the hook.  As an experienced automobile accident attorney, I highly recommend you review your auto insurance policy to make sure you and your family members have enough uninsured and under insured (UM/UIM) coverage.  It’s a step you can take to make sure you’re protected when the unexpected happens.

If you’d like to listen to my podcast episode explaining Uninsured and Under Insured Motorist Coverage, click below:


I’m attorney Jim Desmond.  If you would like to speak with an experienced car wreck attorney, call me on my cell phone.  My number is (502) 609-7657.  I’ll be happy to listen to you about your specific situation.

Principal office located in Louisville, KY.

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In-Depth Legal FAQs: Comprehensive Answers to Car Wreck Queries

Episode 13: On today’s episode, Jim Desmond answers Frequently Asked Questions. Let’s face it, it is hard to understand the law if you aren’t a lawyer and even if you are one, it can still be challenging to work through all of the issues involved in car wrecks. Today we will be answering questions and hopefully be able to help you to better understand when auto accidents.

Car Wreck Attorney Jim Desmond

Do I have a personal injury claim if I do not have car insurance?

The answer is yes. This happens to be one of the biggest things that people mess up. In Kentucky, if you don’t have car insurance, you cannot recover the first $10,000 of your medical bills. In Indiana, there is not a penalty. If the other driver is at fault and insured, then you still have a personal injury claim. If you are unsure or turned away from other law firms, it’s important to keep trying. It is very important to try to be insured because then you won’t be penalized and there’s a possibility to make an underinsured claim, which says basically that your damages are more than what you may be recovering from the at-fault driver.

Why do I have to use my car insurance for the medical bills if I was not the one who caused the wreck?

In Kentucky, the idea is that you should not have to show fault or liability on a driver to get your medical treatment. If you get in a car accident, no matter how it happens, you are immediately entitled to $10,000 in medical expense coverage, which is called no-fault insurance. It’s not just your medical expenses covered, it also can apply to loss wages and loss of services and this even goes for the passengers of the car. It doesn’t mean you can’t recover the $10,000 back, you just have to pay it up front. The reason that Kentucky has that is because in exchange for that right, we give up the right to recover the first $10,000 in medical bills. It’s good because you have money there that can help you if you were to get hurt. The first question when it comes to car accidents is who is insured and for how much?

How do I get my car fixed after a car wreck?

You have two ways to get your car fixed. The first is when you are in an accident, police will usually arrive and take the drivers’ insurance and stories. After that, you wait for your police report, because that gives you the other driver’s information. This allows your attorney to contact the other driver’s insurance company to start a claim. Unless the person who hit you takes responsibility, the insurance company is allowed to investigate the case. The issue if they don’t take responsibility, is your car will just sit there. The second is if you have collision coverage on your car, you can use that. The downside of this is you lose your deductible. Later, you can get this back if the other driver is at fault.

How do I get the rental car extended?

If your car is fixable and at a repair shop, it won’t be that hard to get it extended because the body shop should be staying in touch with the insurance and keeping them updated. When the car is a total loss, they will owe you fair market value. This can be hard because you may have put a lot of money into the car to keep it driving, but they will see it as it is. Sometimes you can argue for more, but there’s really no way around it. When your car is totaled, the insurance company will limit how long you will get to use a rental car for, the average is usually 10-14 days from the day of the accident.

If you’re in an accident and the other insurance is not accepting fault right away, what should the driver do?

You should open the claim and talk to a lawyer. Many times, they will send investigators out and look at the area.  Sometimes, we’re lucky enough to find cameras which may have recorded the accident. Another important thing is to get the witnesses’ information and don’t rely on the police officer. Sometimes people’s numbers change, or numbers can be wrong, so it is important to have those contacts. If you are waiting for the other driver to accept fault, they do have a reasonable amount of time to go through everything with their insurance and to investigate. Usually the more information you have, the faster it will be.

Why would I involve my health insurance if the other side hasn’t paid my medical bills yet?

The first thing to understand is that the other side won’t pay anything until they pay for everything at once. They do this so they won’t be making multiple payments. The other insurance adjuster will try to dispute everything and try to see if your injuries could be from preexisting issues. Usually, before you are seen, they will want to use your medical insurance for co-pays, which you’ll have to pay to get treated. One key step is to reserve the no-fault coverage, because that $10,000 can be used to pay things like co-pays or deductibles.

Are attorney fees negotiable?

Yes. There is no law that requires an attorney to ask for a certain amount for personal injury cases. The standard for a car wreck case is 1/3 of what you recover and 40% if it goes to a lawsuit. Most injury lawyers use contingency fees, which means the client owes nothing unless something is recovered. It costs 1/3 because some cases can take more than a year to resolve.

Will I make more money going to court rather than settling a few months in?

If you go to trial, it’s like walking into a casino because you are trying to convince 12 people that your claim is worth so much money. On the other side, the defense is saying your claim is not worth that much. A lot of people think suing will get you more money, but that’s not always the case. It really depends on the value of the case. Court costs also become extremely expensive and very timely.

For more information about Louisville Car Wreck Attorney Jim Desmond, visit www.AttorneyDesmond.com.

Important Disclaimers:

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.

More on Car Wrecks Involving Workers’ Comp Claims

Episode 8:  In Part 2 of this conversation, Louisville automobile accident attorney Jim Desmond continues his discussion with Louisville workers’ compensation attorney Scott Scheynost about how a collision might involve both an auto accident claim and a workers’ comp claim.

Louisville personal injury lawyer discusses your auto accident claim may involve a workers' comp claim

There are more options if a workers’ compensation is involved in your automobile accident case.  Rather than simply having to rely on the at-fault drivers’ insurance policy (and potentially your own UM/UIM coverage), Kentucky’s workers’ comp system provides more benefits.

What if a Work-Related Accident Results in Death?

Jim and Scott describe a previous case involving a work-related fatality.  Workers’ compensation benefits are often tied to the amount of money you were earning, prior to the accident.  However, under the current workers’ comp system, there’s a significant lump sum death benefit amount that’s paid directly to the deceased worker’s estate.  The current amount is approximately $85,000.  This amount is not related to your earnings.

Your dependents may also be able to receive benefits, based on the amount of money you were making.

How Do Workers’ Comp Attorney’s Fees Differ from Personal Injury Attorney’s Fees?

While a typical personal injury lawyer may charge a 1/3 fee (33%) or more of any financial award in an automobile case, under Kentucky’s workers’ compensation law, workers’ comp lawyer fees are limited to 20%, up to a maximum of $18,000.

Can worker’s comp benefits be disputed?

There may be a valid argument that an employee may have decided to deviate from his/her work-related travel.  Generally, minor deviations during the day may still be covered.  For instance, stopping off at a restaurant for lunch, pulling into a rest area to use the restroom.  It really depends on how far the driver went for a non-work-related activity.

If the workers’ compensation is successful in arguing the employee made enough of a deviation that the accident is not covered, the employee still has the option of pursuing a normal auto accident claim.  Remember, if it is work-related, the claim will be handled as a workers’ compensation claim.  That system is considered “primary.”

Are Independent Contractors Covered by the Employer if They’re in an Accident?

The employer’s control over the laborer or independent contractor, may legally require the employer’s workers’ compensation coverage to pay benefits.  The more say a company has in the activities, tools, etc., the higher the amount of control over the activities of that individual.  In this case, the law may actually consider the independent contractor to be eligible for workers’ comp.

If the employer doesn’t have workers’ compensation coverage, the government has a fund to cover these situations, if someone qualifies.  This is the Kentucky Uninsured Employers Fund.

A personal injury attorney can handle the property damage and a auto accident claim for pain and suffering.  The workers’ compensation attorney will handle the medical expenses claim.  There’s also a possibility that both can use a permanent impairment as part of the multiple claims.  If your attorneys can work together, you may have multiple options for recovering compensation for the issues related to the collision.

Can Company Executives File for Benefits if Injured Traveling for Business?

For more highly-compensated employees (e.g. managers or executives) who are injured while traveling for business, their medical expenses could be covered, but there is still a limit on the Temporary Total Disability (TTD) payments, because they are capped at 2/3 or your average weekly income.  There’s also a cap on the dollar amount of your TTD (currently it’s approximately $900).

If the individual is traveling outside of Kentucky, Kentucky workers’ comp coverage should still apply, in addition to potential automobile accident coverage (e.g. UM/UIM), if they were driving.  It’s also possible that local coverage may apply, enabling the individual to choose which system to use.

For more information about Louisville Personal Injury Attorney Jim Desmond, visit www.AttorneyDesmond.com.

For more information about Louisville Worker’s Compensation Attorney Scott Scheynost, visit http://www.scheynostlaw.com/.

Important Disclaimers:

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.

Car Wrecks Involving a Workers’ Comp Claim

Episode 7: Louisville automobile accident attorney Jim Desmond invited his friend attorney Scott Scheynost, who handles Kentucky workers’ compensation, to join him.   If you are involved in a collision, while performing work-related activities, you may qualify to file a workers’ comp claim, as well as a personal injury claim.

Louisville personal injury lawyer discusses when you can also file a workers' comp claim
Attorney Jim Desmond
Scott Scheynost discusses filing a workers' comp claim for a car wreck
Attorney Scott Scheynost

Who’s Responsible for My Medical Bills?

If you’re on the job, it’s probably work-related, which means workers’ comp is primary for your medical bills and lost wages.  While Kentucky no-fault coverage (PIP coverage) generally covers up to $10,000, there is no limit under Kentucky’s workers’ compensation system for your medical expenses.

Kentucky is a choice-of-provider state.  This means you can select your doctor, instead of having to go to a company-select doctor.  This is an extremely important because your family doctor will focus on getting you healed, while the company-doctor may have an incentive to contain costs by limiting treatment, tests and potentially urging you to return to work more quickly.

Jim Desmond can the third-party claim against the at-fault driver.  Scott Scheynost can handle the comp claim.  If you have injuries related to the car wreck, workers’ compensation will cover the medical treatment and lost wages.  However, once you’ve recovered, the benefits will stop, unless there’s a permanent problem.  The automobile accident claim will address your pain and suffering, which could be more that the amount you received via your workers’ compensation claim.

Permanent Injuries from Work-Related Car Wrecks

If there’s a permanent impairment, that will factor into both the third-party claim and additional money based on your impairment rating.  The impairment rating of your permanent disability is based on a number of factors.  In Kentucky, you’re also entitled to lifetime benefits as part of your workers’ comp claim.  Some injured employees may also qualify for vocational rehabilitation (up to 52 weeks for books, tuition, travel and related expenses).

In Kentucky, you generally have 2 years from the date of the accident to file a claim for a car wreck.  Kentucky’s workers’ comp system also has a 2-year statute of limitations, but that goes from either the date of the accident or the date of the last payment for temporary total disability benefits (TTD), whichever is later.  It’s a good idea not to wait because gathering the records related to the crash, your medical records and other information can take significant time.

What if My Treatment is Denied?

The workers’ compensation adjuster/carrier can attempt to deny the treatment, but you can also use your PIP coverage to go ahead and at least part of the expense paid for, while the workers’ comp process is being either negotiated or argued before the judge.  The earlier you get your claim started, the quicker you may be able to get the treatment you need.

Can I Get Fired if I File a Workers’ Comp Claim?

Kentucky has a specific law to prevent retaliation.  If the employer does attempt to retaliate because you filed a workers’ comp claim, it’s important to document what they are doing, what’s changing or being threatened to change.  Good communication with your attorney is an important factor in the success of your case.

What if I’m involved in a Collision, on Company Policy, before I Clock in?

If you’re injured in a company-owned parking lot or an area in which the company exerts control, you’re probably eligible to file a workers’ comp claim.  Again, good communication with your attorney is important.

If you’re hit by a fellow employee in the company parking lot, Kentucky’s Exclusive Remedy Law may prevent you from suing the employee, but you are still covered under workers’ comp.

However, if you are involved in a wreck with someone who works at the same company, but it’s not work-related, or on company property, you may be able to pursue a third-party claim (e.g. a car wreck claim).  This situation isn’t work-related, so Kentucky’s workers’ compensation system would not apply.

For more information about Automobile Accidents, visit https://attorneydesmond.com/.

For more information about Workers’ Compensation, visit http://www.scheynostlaw.com/.

Important Disclaimers:

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.

Episode 5: What to Do after a Car Wreck

Episode 5:  When a car accident happens, the insurance coverage in place is what matters.  You can’t add coverage after the wreck.  Therefore, be proactive and understand what type of accident coverage you have and what you might need.  Now let’s discuss what to do after a car wreck in Kentucky.

What do you do after the collision happens?

Don’t immediately call your attorney.  First, seek medical attention to make sure you and your passengers are alright.  Your Kentucky automobile accident claim will often include medical records, so get checked out by a medical professional.

Next, if you can safely do it, take photographs of the damage to the cars, the placement of the cars and request your police report.  The photos and the report can help in negotiating your case with the insurance adjuster.  Even though the report is not admissible in court, most automobile accident cases settle before they actually make it to trial.  So, the details contained in the report can provide important details and “proof.”

It’s extremely helpful to get the name, phone number and address of any witnesses.  You need to keep a copy of this, because that information might not be added to the police report.

You can contact your insurance company to open a no-fault claim, also called a PIP claim. However, don’t guess in responding to their questions and definitely don’t minimize the extent of your injuries.  They’ll provide your claim number, the name of the adjuster and his/her phone number.

If the other person is at fault, you’ll contact their insurance company.  That company is called the liability carrier.  Again, be sure to get the claim number, adjuster’s name and his/her phone number.  Understand, the liability carrier isn’t going to pay for medical bills until the case is ultimately settled.

Property Damage Questions

What to do after a car wreck also includes getting your vehicle repaired.  Is the car a total loss?  If the repair would cost 70-75% of the vehicle’s fair market value, the insurance company has total the vehicle.  Understand this is the fair market value, not the replacement value.

Insurance and body shops are allowed to use “used” parts in the repair.  A good body shop manager might be able to speak with the insurance adjuster to explain why certain situations may require new parts.

Some damage may be concealed and not noticed, until the repair is underway.  These are called supplemental repairs.  The body shop will often contact the adjuster and explain why the repair just became more expensive

This Happened This Week:

A Health Insurance Lien is a right to collect against a settlement.  An insurance company can attempt to collect reimbursement for the bills they paid out of the settlement awarded to the victim.  In this situation, the insurance company sent notification to the injured party 6 months after the case had been settled.

Jim was able to work with the no fault claim adjuster to get the bill paid.  Having an attorney involved will make the process easier and will help to protect your interests.

Resources to Get Your Police Report

Option #1:  www.BuyCrash.com – You can use your accident report number.  There is a nominal fee for this service.

Option #2:  Louisville Metro Police at 701 West Ormsby can also provide you with a copy of the report.  Again, a nominal fee is involved.  Visit this site for additional information:  https://louisville-police.org/189/Get-a-Police-Report.

Important Disclaimers:

While this podcast addresses what to do after a car wreck, 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.   Co-host Jim Ray is a non-attorney spokesperson.