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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.”

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 Huge Mistake To Avoid in Settling a Personal Injury Claim

I signed up a client recently that was hit by a car while riding a motor scooter. After we met and I began to represent him as his lawyer, he solicited a personal injury settlement from the insurance carrier for the at-fault driver. He did not inform me of this and it escapes me as to why he bothered to meet with an attorney at all. Nevertheless, while the insurance company should not have discussed any part of his injury claim with him since he had legal representation, they claimed that they had not yet received my letter of representation and that my client had told them he did not sign any contracts with any lawyers.

Even though I think I could have voided any personal injury settlement that was arguably reached, my client instructed me not to interfere and informed me that he wanted to proceed with the settlement of his personal injury claim, despite my legal advice to the contrary. As a result, I withdrew from the case and allowed the client to resolve his injury claim as however he saw fit. However, he made a big mistake on a key issue that I want to make you aware of.

Except for the medical bills paid by a Kentucky no-fault carrier, the vast majority of personal injury settlements are inclusive of the medical expenses or any liens that stem from the payment of those medical bills. In other words, when you settle a personal injury claim from a car wreck in Kentucky or Indiana, that personal injury settlement will include every lien or medical bill except for those paid by a Kentucky no-fault carrier.

In this case, the injured victim was on a scooter that because of the size of its engine, qualified as a motorcycle. In Kentucky, motorcycle riders do not generally qualify for no-fault insurance unless they have purchased optional no-fault coverage. So the client’s own health insurance would be responsible for his medical bills. (Recall that the insurance carrier for the at-fault driver typically own pays an injured person’s medical expenses when the entire personal injury claim is settled; not as the injured party incurs the medical expenses.) Thereafter, my former client’s health insurance carrier could assert a subrogation claim against any personal injury settlement that was recovered for the medical bills they paid on the client’s behalf.

Essentially a subrogation claim by a health insurance carrier says that they legally stand in your shoes in regard to the medical bills they have paid on your behalf. So if you recover the medical bills from the at-fault party, the health insurance carrier has the right to recover the amounts they have paid from your personal injury settlement or you. Since the settlement of the former client was inclusive of all medical bills and liens, the client’s own health insurance carrier now has the right to sue him, their own insured, to recover the amounts they have paid on his behalf. In addition, some health insurance plans would give the insurance carrier the additional right to deny payment of future health insurance benefits to the extent that their subrogation rights were impaired.

In essence, the former client not only settled his injury claim too soon and for less than it was worth but also, the amount recovered in that settlement may not be taken away by the health insurance carrier to satisfy their subrogation claim. Very simply, don’t rush a personal injury settlement. The only one that benefits from rushing a personal injury claim is the insurance carrier.

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.

Accepting the settlement offer of an insurance company

Be careful when accepting the settlement offer of an insurance company. You should always consult an experienced injury attorney after a car, truck or motorcycle accident that results in your injury. I had a new experience the other day. A client had told me that before I was handling his personal injury claim, the insurance carrier for the at-fault driver had made him an offer of $1,250 to settle his bodily injury claim. They even went so far as to send him a settlement check. While he had sent the check back to show that he was rejecting this offer, I came to the conclusion that he had effectively accepted their offer and therefore, his bodily injury claim was concluded.

While I had seen insurance companies take recorded statements to pin down the facts of an automobile accident or my client’s personal injuries, I had never seen an insurance company use a recorded statement to settle a personal injury claim. The insurance company had recorded a phone call with the client wherein they went through all aspects of the release orally. They went through the fact that the client knew what he was doing, knew he was signing away his rights and that it was a fair amount for his claim. After consulting with several other personal injury attorneys who I work with, we all agreed that his claim had been effectively settled.

The problem with settling a personal injury claim is that it is a full and final settlement of your legal rights. As I tell all my personal injury clients, you can go back to the doctor tomorrow and he can tell you are going to go blind because of this car wreck. It does not matter how severe it is or when it is discovered, you can’t recover anything further.

When an insurance company makes a settlement offer early on, they are simply trying to buy the risk. The risk that you will need surgery or other treatment down the road. Why give them that right when that is your legal right? Don’t settle any part of your personal injury claim by accepting the settlement offer of an insurance company until an attorney looks at your case and until your treatment is fully done.

Tag: insurance