car wreck Archives - Page 2 of 2 - Attorney Jim Desomond

How Do I Get My Car Fixed After a Wreck?

For a moment, put aside the stereotypes you have about car wrecks, attorneys who advertise on TV and insurance companies. Ask yourself this one question, “How do I get my car fixed after a wreck that was not my fault?” If you think the answer is that the guy who caused the car accident is responsible for all of your damages, nothing could be farther from the truth.

Very simply, a key concept in motor vehicle law is understanding that even if it is just about the damage to your car and the corresponding repair bill, there is nothing in personal injury law that guarantees you the other guy will or has the ability to pay back all of the damages he caused. You’re at risk of asking, “How do I get my car fixed after a wreck?”

In Kentucky, a driver can lawfully insure a car for as little as $10,000 in regard to property damage claims. This means if you drive a $70,000 Mercedes and are hit by a guy insured by Safe Auto, a company that specializes in selling the minimum amount of insurance legally allowed, Safe Auto is not going to be paying for the repairs to your car. From a quick internet search, it looks like the average selling price of a new car is approximately $35,000. Do you see the problem?

Kentucky law does not require the driver of an automobile to be able to pay all the damages he causes from a car wreck.

It is that simple! Sorry, but this is an indisputable fact that every politician in Frankfort would have to agree with and so far, we are just talking about the damage to your car and not your medical expenses.

The inescapable conclusion is that while it may not be fair or equitable, you have to have, 1) the right insurance coverage on your own vehicle(s), 2) before the car wreck happens, 3) to protect yourself from the uninsured or underinsured driver, 4) whether it is for damage to your car or for making a pain and suffering claim. Listed below is a quick explanation of how to do that.

Important Types of Car Insurance Coverage

Collision coverage – It will pay for the damage to your car, less your deductible, no matter who caused the car wreck.
Gap or loan/lease coverage – If your car is damaged beyond repair and your bank loan on your car is higher than what the insurance company says the car is worth, this insurance coverage will pay the difference so you can walk away from the wrecked car rather than having a balance on your loan.
Uninsured motorist coverage – The car/driver that hit you had no insurance coverage in violation of Kentucky law or that car/driver fled the scene of the accident. We can make a claim against this coverage for your pain and suffering claim which may include your lost wages and some of your medical bills.
Underinsured motorist coverage – The car/driver that hit you was lawfully insured but he did not have enough insurance coverage to pay all your medical bills, lost wages or pain and suffering claim. After we recover all of the insurance on the at-fault driver, we can recover more of your damages from your own insurance company through this coverage.
No-fault coverage – No-fault insurance means that the first $10,000 of your medical bills and/or lost wages are covered by the insurance company for the vehicle you are riding in no matter who caused the automobile accident. You can buy optional no-fault coverage as well I would suggest amount $30,000 per person. If you let your health insurance cover your medical bills from a car wreck, you can use this no-fault coverage to pay the co-pays/deductibles from your health insurance and/or any lien that might be asserted by your health insurance against your personal injury claim.
Suggested amounts of these uninsured and underinsured motorist coverage – $100,000 per person and $300,000 per accident or higher amounts if you can afford more.

The bottom line is that to answer the question, “How do I get my car fixed after a wreck?” the answer is it may depend on you. You can’t control the type and amount of coverage the at-fault driver carries, assuming he/she had insurance in the first place. The best way to protect your car, is to properly insure your car. Does it cost more to do this? Probably so. But, if that car is your only means of getting to work, it may be worth the extra investment in your job and financial security.

How Do I Protect Myself in These Circumstances?

Louisville Injury attorney Indiana car accident lawyer Car accidents in Kentucky and Indiana are rarely “straight forward.” Each case is unique and the circumstances, witnesses, and even applicable laws are different based upon where and how the crash happened. Insurance companies will always try to minimize the amount the pay, and that is usually at the expense of someone who is hurt. This is why you need an experienced injury attorney when you are injured in an accident. I want these blogs to help answer the question of “What should I know and how do I protect myself in these circumstances?”

I have been dealing with a new a car wreck case that I think really illustrates some of the problems people can encounter when fault for a car wreck is not clear or is disputed. When I met with the client she described that the car wreck occurred late at night, at an intersection and without witnesses. Based upon what she told me and what we saw on the police report, I knew that we would be dealing with a he said / she said situation wherein both drivers claimed they entered the intersection on a green light. Obviously, unless I can show complete or partial negligence on the part of the other driver, I can’t recover my client’s property damage or personal injury claim.

To my client’s credit, she thought “What can I do and how do i protect myself here?” and took pictures at the accident scene. More importantly, she mentioned to me that she saw several security cameras at a nearby business that may have captured the automobile accident on video. Luckily, she was correct. I sent an investigator to this business and she was able to obtain a copy of a video that showed the other driver ran the red light. The problem is that the insurance company still did not want to accept complete fault for the car wreck. They stated:

“We do believe our insured driver contributed the majority of negligence in the accident. Within a second after impact, our insured’s light turned green which leads us to believe that your client would have had a yellow light. Your client would have contributed some negligence for lookout as she should have used caution when going thru the intersection and should have realized our insured as coming thru the intersection.”

comparative fault being claimed by the insurance company of the at-fault driver

In other words, they are trying to argue comparative fault on my client. Kentucky is what is known as a pure comparative fault state and Indiana is a modified comparative fault. What this means in Kentucky is that if you are found to be 99% at fault for a car wreck by a jury, you can still recover 1% of your damages. In Indiana, you have to be less at fault than the other driver. So if a jury finds that your negligence was responsible for 50% or more of the car wreck, your claim is barred completely and you can recover zero of your damages.

In this case, I have argued to the insurance company that their position is based upon conjecture as they really do not have any testimony supporting their argument. While my argument appears to have gotten me past several hurdles for now, their argument is not completely dead and it sets up several problems for the future.

The question “what do I need to know and how do I protect myself from this circumstance?” goes farther than what happens before the accident. Let’s just say, for example, that my client agrees to accept just 10% of the fault for this car wreck to keep the injury claim in the pre-litigation phase and avoid the possibility of a lawsuit for now. First, the other driver, and his insurance company, would have the right to recover 10% of his damages, and any amounts paid by his insurance company, from my client or her insurance coverage. This might result in an increase in her insurance premium. Moreover, we have to make sure that she has enough insurance to cover all these damages. In Kentucky and Indiana, an insurance policy can have as little as $10,000 in coverage to cover the physical damage caused by a car wreck. If the other guy was driving a new Lexus that was a total loss, the value of the 10% property damage claim alone might still exceed the $10,000 in insurance coverage. Second, this comparative fault argument creates a conflict of interest.

As a personal injury lawyer, I am governed by rules of ethics established by the Bar Association for each state I am licensed to practice in. The gist of several of these rules is that I always have to act in my client’s best interest. If my driver has a passenger in her car and I am acting as the attorney for both individuals, how can I act in everyone’s best interest? To recover 100% of the passenger’s damages, I have to make a claim against both drivers. If I make a claim against my own client, I am obviously not acting in her best interest. This is why I would either have to get the conflict of interest waived by both clients or refer the passenger to another attorney.

So with these blogs, I always like to answer the question of “What do I kneed to know and how do I protect myself from this circumstance?” The honest answer on this scenario is that it is hard to do. However, if I am in a car wreck, I would do my best to take pictures of the accident scene immediately after the wreck and I would obtain/retain the contact information for any witnesses, independent of what was contained on the police report. I would also always see a doctor within 24 hours of the accident, even if you think you weren’t injured at all.

Also, while I hate to say it again, you should always consider “What can happen and how do I protect myself ahead of time?” by what insurance coverage you put on your own automobile insurance policy ; insurance coverage such as collision and rental car coverage. Yes, this results in a higher insurance premium. However, it allows you to submit the claims for your car damage to your insurance company rather than be forced to accept a split of liability, that you are not comfortable with, in order to get your car back on the road quickly. Ultimately, through a lawsuit or arbitration, your insurance company, through what is known as a subrogation claim, will try to get whatever they paid out on your behalf from the other driver’s insurance company.

I preach a lot in these blogs that there is nothing in Kentucky or Indiana law that guarantees you that 100% percent of the time the at-fault driver will have insurance, or enough insurance, to cover all your claims stemming from the car wreck. Well, this is kind of a similar corollary. As long as an insurance company has a reasonable basis in law or fact for their position, there really is nothing preventing them from telling you to prove a case in a court of law and convince a jury that your position is the right position. As a result, you, as an active motorist, has to take steps to make sure you are protected, before the car wreck occurs. “What do I kneed to know and how do I protect myself as much as is reasonably possible?” Usually, that means making sure your own automobile insurance has the right kind of coverage or that you can afford the loss (e.g. paying for your own rental car) should you encounter a situation with disputed fault.

A Criminal Conviction of D.U.I. Being Used to increase the value of a Personal Injury Claim

DUI Car Accident Injuries Injury Case I filed a lawsuit against a drunk driver this week because the liability carrier presented me with a lousy offer on my client’s personal injury claim. For you as a consumer, the interesting part is how a personal injury claim interacts with the criminal charges of being intoxicated while operating a motor vehicle.

The facts of the car wreck were such that my client was a passenger in a vehicle that was one of several vehicles hit by the drunk driver. This is important because as a passenger, my client clearly did not have control over any of the vehicles involved in this automobile accident. As a result, there is no way anyone can argue that she was partially at fault in causing the car wreck. To use legal terms, the Defendant had no facts to argue comparative fault on the part of my client; a fancy way of saying someone is partially responsible for the car wreck.

So in regard to the personal injury claim, I collected all of my client’s medical records and bills and forwarded them to the drunk driver’s insurance carrier with a demand letter. In response to the demand letter, I received an offer on the personal injury claim that would have been considered low, but in the ballpark, for a normal personal injury claim. I also learned that the drunk driver only had the state minimum of $25,000 per person in insurance coverage. More importantly, contrary to the typical automobile accident, this at-fault driver was intoxicated when the car wreck occurred.

The other driver was arrested at the scene of the car wreck for Driving Under the Influence. Shortly thereafter, the Jefferson County Attorney charged him with Operating a Motor Vehicle Under the Influence of Alcohol/Drugs, First Offense. This would be a violation of KRS 189A.010 and ultimately, the at-fault driver plead guilty to violating this statute.

This guilty plea is a crucial issue in regard to the value of the personal injury claim. Very simply, I can use that conviction in the lawsuit to prove the other driver was intoxicated at the time of the car wreck. By doing so, I can claim that my client is entitled to not only compensatory damages (i.e. damages designed to compensate her for her losses) but also, that she is entitled to punitive damages (i.e. damages designed to punish the other party).

The Kentucky Statute on punitive damages is KRS 411.184. The gist of the statute is that a Plaintiff can recover punitive damages from a Defendant when it is shown by clear and convincing evidence that the Defendant acted with “oppression, fraud or malice.” The argument is that by operating a motor vehicle while intoxicated, the at-fault driver showed a reckless disregard and a flagrant indifference to the rights of other motorists. Such actions are largely how the term “malice” is defined in the punitive damage statute discussed above.

So, in my opinion, the liability adjuster should have made a settlement offer on the personal injury claim that considered both my client’s claim for both punitive and compensatory damages. Since he did not, I filed a lawsuit in an effort to ultimately recover both kinds of damages on behalf of my client.

One last point is worth mentioning. The liability adjuster argued to me that the insurance policy for the at-fault driver did not include, and specifically excluded, insurance coverage for a punitive damage claim. I have heard that argument before. The better insurance companies (i.e. typically the larger, well-known companies) will usually advance that same argument to me while making a better than average offer on the claim for compensatory damages. In essence, they are preserving their legal arguments while taking additional steps to protect their insured from a lawsuit.

I will wait for another blog to describe if the insurance company actually asserts this defense to coverage through another lawsuit known as a Declaration of Rights. However, it is worth mentioning that the insurance carrier will have to hire Defense Counsel to defend the drunk driver from the lawsuit I have filed. Nevertheless, no matter who is paying the attorney’s fees of that Defense Counsel, the legal and ethical duties of that lawyer run to his client, which in this case is the drunk driver. So the lawyer for the drunk driver cannot advance the argument that the insurance policy does not cover the punitive damage claim as such an argument would be contrary to his client’s best interests. As a result, if the insurance carrier is really going to persist on this argument of excluded coverage, they will be required to hire another attorney who can act as their own attorney in this matter.

Kentucky Car Wrecks: Having To Use Your Car Insurance to Pay Your Medical Bills

I signed up a mother injured in a car wreck in Louisville, Kentucky last week. The problem is that the mother was driving a car owned by her daughter. Consequently, even though the driver/client was not at fault in causing the car wreck, I have to use the daughter’s automobile insurance to pay my client’s medical bills. This is why they call Kentucky a no-fault state. It does not mean that you can’t make a claim for pain and suffering against the at-fault driver. Rather, it means that the car insurance for the vehicle you are riding in is responsible for the first $10,000 of your medical bills and lost wages, regardless of how the car wreck occurs. As a result, I have dealt with several phones calls this morning from both the mother and daughter addressing their concern about using their own car insurance when the mother did nothing to cause the wreck.

The idea behind Kentucky no-fault law is that I should not have to prove fault for an automobile accident in order to get the medical treatment I need. As a result, the Kentucky statutes made this kind of coverage automatic. In essence, when you are involved in a motor vehicle accident in Kentucky whether you were or were not at fault for causing the wreck, you are immediately entitled to $10,000 of medical expense and lost wage coverage. So when you see attorneys advertise that they can immediately get you $10,000 on your personal injury claim, now you know what they are referring to. They are misconstruing the law for the purposes of an advertisement. You don’t get the $10,000 but rather, the insurance carrier has to provide you with medical expense and lost wage coverage up to that amount.

Kentucky law goes on to say that in exchange for that coverage, you give up the right the right to recover the first $10,000 of medical bills and lost wages from the at-fault driver. That legal right of recovery becomes the right of insurance carrier who is responsible for your medical bills and lost wages. If you think about it, it only makes sense. If we are going to obligate the no-fault carrier to pay your medical bills, they should have the right to recover any amounts paid. However, it is for this reason that you do not have a choice but to use your own car insurance to pursue your personal injury claim.

For example, if I submit a personal injury claim on behalf of my client and he has $5,000 worth of medical bills and I want another $6,000 for his pain and suffering claim for a total of $11,000, the insurance company will still only offer me $6,000 at best for my client’s pain and suffering claim. Why? Because they know that it is not my client’s right to recover the first $10,000 in medical bills but rather, it is the right of the no-fault carrier. They also know that if they paid me the full $11,000 on the claim, Kentucky law would still allow my client to make a no-fault claim for the $5,000 in medical bills. Then the no-fault carrier would have the right to recover the $5,000 they paid from the at-fault insurance carrier that now would have paid out a total of $16,000 on the claim when they should only have had to pay out $11,000.

I understand that is complicated. In essence, for a Kentucky motor vehicle wreck, the at-fault carrier will not agree to pay the first $10,000 of your medical expenses as part of your pain and suffering claim because of the risk that they might have to pay these bills twice. Consequently, to not use my client’s no-fault insurance would mean that I could not recover some of the medical bills that compose their personal injury claim. So yes, even though my client did not cause any part of the car wreck, I have to use her own car insurance or I cannot recover fully on her personal injury claim.

A topic for another day is Indiana law in regard to car wrecks and medical bills. In essence, Indiana law does it just the opposite and all medical expenses are considered part of the personal injury settlement.

Analysis of the steps necessary for handling a personal injury claim stemming from a car wreck.

Today, I met with a new client who had just been in a car wreck. It was a significant wreck as the airbags of both vehicles deployed and my client was taken by EMS to the trauma unit of the University of Louisville Hospital. It was a rather interesting discussion because his sister had been in a wreck previously so she was rather savvy to the legal process involving a car wreck. However, there were some key points that an attorney, who does not handle car wrecks regularly, would have missed.

First, one of the pictures taken at the accident scene showed the at-fault driver’s license plate. As a result, I can start tracking down that person’s insurance information before the police report is even ready. Second, the car wreck happened just outside Louisville. Since Kentucky is a no-fault state, my client immediately has $10,000 of no-fault coverage, for his medical bills and lost wages, through his own insurance carrier. However, my concern is that the University of Louisville hospital bill may already be over $10,000 considering that several CT scans were performed. As a result and as allowed by the Kentucky Motor Vehicle Reparations Act, KRS 304.39 et seq., I may reserve his no-fault coverage for his lost wages until I know for sure how much his medical expenses will be.

Third, my client was in a vehicle that had just been purchased from a car dealership on a Friday evening and the accident happened on a Saturday morning. As a result, the car my client was driving had not yet been put on his friend’s insurance policy. Nevertheless, I believe that the insurance company of my client’s friend will still have to supply coverage for this wreck. While the better practice is to call your insurance company and inform them of your purchase before you take your new car off the dealer’s lot, most insurance policies have a provision wherein a newly acquired vehicle is automatically covered for an interim period. That interim period, and any other conditions that might also need to be fulfilled, can differ according to the insurance policy. However, in most circumstances, as long as you notify them of your purchase within a reasonable time period, most likely 7 to 14 days, your insurance carrier will still cover the new automobile even though they did not know about your purchase prior to the car wreck.

Lastly, if for some reason this newly acquired vehicle proves to be uninsured, I will look back to the insurance company for the automobile dealership to see if they did everything they needed to in order to transfer the risk of loss to the purchaser before the car left the lot. If the car dealership did what they were supposed to and are off the hook, I would then look for uninsured motorist coverage through my client’s own car insurance and possibly the Kentucky Assigned Claims Plan to cover his no-fault benefits.

The final point for you as a consumer is two-fold: 1) Don’t make assumptions about insurance coverage when it comes to car wrecks and; 2) Have uninsured motorist coverage on your own car insurance policy of at least $100,000 per incident.

Tag: car wreck

Important Types of Car Insurance Coverage

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