Louisville car wreck attorney Archives

Going Against the At-Fault Driver in a Kentucky Car Accident

Below is a summary that ChatGPT provided me with regarding how fault affects Kentucky car wreck cases. In Italics, I have put my comments wherein I thought AI got it right or wrong in describing the law regarding Kentucky automobile accidents.

Going Against the At-Fault Driver in a Kentucky Car Accident

(Fault, Negligence, and Pain-and-Suffering Claims Explained)

Once Kentucky’s no-fault (PIP) benefits are used up or the legal injury threshold is met, an injured person may pursue a claim against the at-fault driver. At that point, the case is governed by traditional negligence law. (Wrong. ChatGPT is confusing concepts. You have the legal right to sue someone, whether your PIP is exhausted or not. Further, the legal injury threshold, oversimplified, is having at least $1,000 in medical bills from a car wreck. That threshold applies only to Kentucky wrecks and your personal injury claim. That threshold does not exist, for example, for wrecks occurring in Indiana, and/or against your property damage claim.)

What “Negligence” Means in a Car Accident Case

To hold another driver legally responsible, the injured person must prove negligence. Negligence has four basic elements:

1. Duty
Every driver has a legal duty to operate their vehicle safely and follow traffic laws. (Yes, but it is really a duty to keep (It’s broader than this. Duty refers to the fact that you must have a legal duty under the law, e.g., yielding the right of way.)

2. Breach of Duty
A driver breaches that duty by doing something unsafe, such as:

Running a red light or stop sign
Failing to yield the right of way
Speeding
Distracted driving
Following too closely

(The above are examples. Most traffic cases are determined by who had the right of way.)

3. Causation
The unsafe conduct must be a substantial factor in causing the crash. (Correct. For example, you can’t hold the Drive-Thru Hamburger place responsible for taking too long with the order; even though, had they been on time with the order, you would have avoided the wreck since you would not been at the intersection when the other guy ran the red light.)

4. Damages
The crash must result in actual harm, such as:

Physical injury
Pain and suffering
Medical expenses
Lost income

(It failed to mention the damage to your car.)

If any one of these elements is missing, the at-fault driver is not legally responsible. (True. You need all four elements to make a successful personal injury claim.)

Why “Right of Way” Often Determines Fault

In most car accidents, fault comes down to who had the legal right of way.

Examples:

A driver who runs a red light usually violates the other driver’s right of way.
A driver turning left must yield to oncoming traffic.
A driver entering a roadway must yield to vehicles already on it.

When a driver violates right-of-way rules, that violation is strong evidence of negligence because:

Traffic laws are designed to prevent collisions
Violating them creates a foreseeable risk of harm

While not every crash is simple, right-of-way violations are the most common cause of fault in Kentucky car wrecks. (True. Think about why that is the case through this example. Many drivers try to say, “Well, the other guy was speeding!” Yes, but that is only a small factor in causing the car wreck. First of all, you would have to be able to prove that but for the other driver’s speeding, the wreck could have been avoided. Second, and more importantly, you turned left in front of the other driver, thereby breaching your legal duty to yield the right of way to oncoming traffic. That other driver could have been doing 100 mph, and had you not entered his path of travel, there would not have been a collision. That’s why a high rate of speed, if you can prove that the car was in fact speeding, is only considered a factor in causing the wreck, and the substantial cause of the wreck was failing to yield the right of way.)

Comparative Fault: More Than One Driver Can Be at Fault

Kentucky follows a pure comparative fault system.

This means:

More than one driver can share fault
Each driver is assigned a percentage of responsibility
An injured person’s recovery is reduced by their percentage of fault

Example:

If damages total $100,000
And the injured driver is found 20% at fault
The recovery is reduced to $80,000

Even a driver who is mostly at fault may still recover something under Kentucky law. (Correct. So in the above example, not only would your damages be reduced by 20%, but also, that other driver would have a claim against you for 20% of their damages.)

Recovering Pain and Suffering Damages

“Pain and suffering” includes:

Physical pain
Emotional distress
Loss of enjoyment of life
Ongoing limitations or discomfort

(True, let me say this. The merits of a personal injury claim are determined by the contents of your medical records. For complaints of pain to be taken as credible by an insurance company, those complaints need to be noted in your medical records, and your treating physician MUST relate those complaints to the injuries sustained in the car wreck. Plain and simple, when it comes to car accidents, the treating physicians are seen as gods, and their testimony makes or breaks a case.)

To recover pain and suffering damages in Kentucky:

The injured person must meet the KMVRA threshold (such as medical bills over $1,000 or a qualifying injury), and
The at-fault driver’s negligence must be proven

Unlike medical bills or wage loss, pain and suffering:

Has no fixed dollar amount
Is evaluated based on the severity, duration, and impact of the injury
Is often the most contested part of a claim

(On this last part, wherein Chaptgpt says an injury claim is the most contested part of a claim, understand that the best personal injury claims follow the concept of “Garbage in equals garbage out!”. In other words, give your injury attorney the best facts to work with, and by doing so, your result may be a higher recovery on your injury claim. For example, if you are hurting and the impact made your car look like an accordion, take the EMS ride to the Emergency Room and get checked out. If you have not been to the doctor in weeks and are still hurting from a car wreck, get to the doctor and document the fact that you are still hurting. If you don’t, it looks like you were not hurting during that time. Essentially, your medical records are the ‘Hansel and Gretel breadcrumb trail’ that leads an insurance company to the conclusion that you were seriously injured in the car wreck.)

Evidence Commonly Used to Prove Fault

Fault is usually established using a combination of:

Police reports
Traffic citations
Witness statements
Photographs and videos
Vehicle damage patterns
Medical records linking the injury to the crash

No single piece of evidence controls the outcome. Fault is determined by the total picture. (I don’t agree with most of ChatGPT’s statements on this. The police report is evidence of fault but is generally not admissible as evidence during trial. Traffic citations help, but only if they concern how the vehicle was being driven, e.g., the other driver was intoxicated or charged with reckless driving; a citation for an expired registration means nothing for a personal injury claim. Personal injury claims arising from a car accident are all about what we can prove. So yes, videos that captured the car accident, statements of witnesses, or photographs that show the position of the vehicles after the wreck, all help us to prove fault.)

Property Damage Follows Fault Rules from the Start

Unlike injury claims:

-Property damage is not limited by the no-fault law

-The at-fault driver is responsible for:

Repair costs
Total loss value
Loss of use (such as rental car expenses)

Fault analysis for property damage is the same negligence analysis described above.

Bottom Line

Once no-fault limits no longer apply, a Kentucky car accident claim becomes a traditional fault-based case. The injured person must prove that the other driver violated traffic rules, caused the crash, and resulted in real harm. Right-of-way violations frequently determine fault, and damages may include medical expenses, lost income, property damage, and pain and suffering, subject to comparative fault rules.

(True, quit putting such emphasis on the no-fault laws. They are not hard to comply with, and really, Kentucky is a traditional fault-based system for the most part, and the no-fault laws are just several exceptions to that system.)

Medical Freedom for Victims: Your Right to Choose Your Doctor

To be clear, no-fault insurance, or med-pay coverage, does not require you to go a specific doctor or get pre-authorization. Rather, the Kentucky Motor Vehicle Reparations Act says that if the treatment is reasonable and related to the injuries sustained in the car wreck, the PIP carrier, a.k.a. the no-fault insurance company, owes coverage for that medical bill. You can treat with whichever doctor you want.

Treat with whichever doctor you want when it comes to PIP or no-fault insurance coverage

Don’t Let People Play Games with You

When it comes to personal injury protection coverage (“PIP), there are not any pre-authorizations or medical providers in or out of a network. Rather, a no-fault carrier has you sign a PIP application which is essentially, a fancy medical authorization. This authorization allows them to obtain your medical records and bills, to review them and to determine if they are related to the injuries sustained in the car wreck. Why is this important? Because you can go wherever you want, to whichever doctor or chiropractor you choose, to treat for your injuries.

I just spoke to a new client. In short, one of the big firms told him that he was going to be referred to a chiropractor, even after he said he was not comfortable with a chiropractor. Look, I have nothing against chiropractors but who he decides to obtain medical treatment from is the client’s choice, not the choice of any personal injury lawyer.

It’s All About You

My job as a personal injury lawyer is to advise my client of what I believe the best decision would be. It’s not to make that decision for him/her. I give out the name of chiropractors and/or medical doctors during the course of handling the client’s injury claim. However, I do so because either those doctors are easy to work or because they will work with me on reducing their charges, if necessary, to maximize a client’s recovery. Nevertheless, I make it clear to all my clients, and I have said this in front of doctors:

“You are my client, not this medical provider! While I appreciate that this medical provider may have given you my name, my legal duties run to you. If you are not happy with their facility or if the treatment is not helping you, let me know. We will find you another doctor, or chiropractor, and I will still be your lawyer.”

I consider some of the doctors or chiropractors that I have worked with to be good friends and I have even traveled with them. Nevertheless, my client has the absolute right to choose where he or she wants to receive medical treatment. My job, as a good personal injury lawyer, is to make sure those charges will be paid and/or reduced out of any personal injury settlement that might be reached.

Click here to listed to my podcast episode about PIP (“no-fault”) insurance coverage.

Louisville auto accident attorney Jim Desmond explains PIP or "no-fault" insurance coverage in Kentukcy

Need More Information?

If you have questions about your automobile accident, call my cell at (502) 609-7657. As an attorney, I handle motor vehicle accident claims in Kentucky and Indiana. You deserve to speak directly with an attorney; not a paralegal or case manager. My principal office is located in Louisville, Kentucky.

This is an adverstisement.

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.

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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Legal Experience Matters: The Importance of Attention to Detail

Episode 11: Louisville personal injury attorney Jim Desmond discuss why he wrote a controversial blog post. He demonstrates why attention to detail matters to him and his clients. A lady called to see if he could help. She had already been turned down by two other larger firms. Jim was able to figure out that actually, a fairly significant case did exist. Let’s talk about why this happens.

Louisville personal injury lawyer discusses why attention to detail matters

Many of the advertising law firms are very competent attorneys. However, when there are a ton of cases coming in, the process matters. Not every case will get the attention it may require. This is especially true if the case isn’t being handled by an actual attorney.

Some television ads mention how a specific firm may have tremendous financial resources to handle your case. That’s true, but it doesn’t matter if the attorney never really gets the time to work on your case. Large marketing budgets and staffs require a tremendous amount of case volume to support those overhead issues.

When an attorney, like Jim Desmond, has the time to investigate the facts and details of your case, there’s a good chance that an effective strategy can be developed, assuming the case itself has merit. Small discrepancies in the facts can lead to significant outcomes. An attorney needs to assess all of the factors, develop a strategy for the case and begin pounding away at the facts of the case. This takes time and attention to execute.

If you’ve been in an accident, the evidence is critical. Photographs, witness statements and other types of evidence help to support your attorney’s argument in the severity of the case, the resulting damages and the value of your case. An experienced personal injury attorney knows how to gather these elements and how to use them. Non-attorney staff members may not have that level of experience.

Jim discusses various ways he handles cases in an effort to maximize the settlement and the funds the client keeps, once all is said and done. This is extremely important when health insurance liens are involved. Kentucky provides no-fault insurance, which should often be reserved to enable other sources of funds to be used before tapping into the no-fault funds, if possible.

The facts of each case are unique to that specific situation. How the case is approached and managed may be very different, because the evidence and the related issues require specific steps to benefit the client’s objectives. A general approach (or template) doesn’t apply. It’s why when handling a legal case, attention to detail matters.

COVID-19 Impacts Law Firms, Too

The system has slowed down for a variety of reasons. However, the process is still moving forward. Staying organized and carefully monitoring the documentation is even more important when others may not be responding as quickly. Let’s be honest, the “normal” way of doing things has been disrupted.

Jim takes specific steps to ensure PPE measures are taken when he’s meeting with clients, during the COVID-19 crisis. Much of the contact can be done over the phone, via mail and other methods. It depends on what the individual client is comfortable with, at this time.

The key is to keep a client informed of the steps that are being taken, behind the scenes. A lot of what goes on may not involve/require direct interaction with the client, but a good attorney will keep the client up to date on what’s going on so they know the case is moving.

For more information about Louisville Personal Injury 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.

Beware of TV Advertising Lawyers: Why You Shouldn’t Trust Them!

Why do I balk about using a big, law firm to handle your personal injury claim? It is all about customer service and knowing the details of your injury claim.

I worked at a big, television advertising law firm for over four years. Guess what? First, those firms have an attitude of arrogance. Why? Because your single, personal injury claim is not going to make or break them. If things don’t work out with your car wreck, they will just move on to the next one.

Second, when you are handling a bunch of cases at once, it is hard to concentrate on the details of a personal injury claim. The problem being that you know what really drives the value of a personal injury claim, the details of that claim!

For example, I am presently handling the injury claim of someone severely injured in a motorcycle wreck. All indications are to date that the medical bills alone will far exceed the liability coverage on the at-fault driver and the underinsured motorist coverage available on the motorcycle’s insurance policy. Nevertheless, there is a chance that the at-fault vehicle was owned by a car dealership at the time of the motorcycle accident and therefore, this insurance of that car dealership may apply. This is hugely important as it MAY increase the possible personal injury settlement by over 10 times since now, there may be enough insurance coverage to cover my client’s injury claim.

Why do I think the car dealership might have to provide insurance coverage? Because I took the time to run the title of the at-fault vehicle and despite several times being told there were no such documents, I obtained copies of the title history which shows that the car dealership owned the at-fault vehicle on the day of the motorcycle wreck. In other words, having the time and commitment to really focus on the facts of this one motorcycle wreck might substantially increase my client’s personal injury settlement.

To give you another example, I had a phone call last year that I want to share with you because it made me mad! Not because the caller did anything wrong but because the injured victim was given incompetent advice about car accidents from two different law firms that spend a whole lot of money on television advertising every year.

The potential client was in a severe car wreck that resulted in surgery. Because of the COVID virus shutdowns, she was unemployed and had let her car insurance lapse, prior to the car wreck. Due to this lack of insurance and the fact that Kentucky is a no-fault state, she was INCORRECTLY told by two big law firms, that advertise on television, that she did not have a personal injury claim even though she was not at fault for the car wreck. Wrong! We settled that claim for more than the state minimum of $25,000 and because we used the client’s health insurance to pay her medical bills, since there was not any no-fault coverage to pay those medical bills, the client still walked away with about 60% of the total settlement; even after deductions for attorney’s fee and case costs.

To say it again, and as illustrated by the above-discussed personal injury claim, the fact that Kentucky is a no-fault state means that the insurance company for the vehicle you are in, regardless of the fact that this is not the at-fault vehicle, covers the first $10,000 of your medical bills and lost wages. That’s it! It does not mean you don’t have a personal injury claim.

If your car, was not insured, you cannot recover the first $10,000 of your medical bills and lost wages. So, if you have a surgery bill for $50,000, you can only recover $40,000 of that surgery bill from the at-fault driver’s insurance if your vehicle was not insured. Big whoop! You still have a claim for $40,000 in medical bills AND your claim for pain and suffering.

I established Desmond Law Office 15 years ago and from day one, I only handled car and motorcycle wrecks. I think I have done this long enough to figure out a way to get around the penalty for being uninsured. However, if you go with a big firm and only speak to a “case manager” and not your injury lawyer, good luck with getting around such a penalty. After, as discussed above, one of my clients was given bad information by two television attorneys and had she listened to that advice, the recovery on her personal injury claim would have been $0.

Further, I want to say something about the big law firms. As many of my injured clients know, I spent a large part of my career working for a television advertiser; so I am speaking from experience. These firms bring in a large number of personal injury claims every year by spending over $1,000,000 a year on television advertising.

If you allow a big firm to handle your personal injury claim, you are a little fish in their big pond. When the case does not have enough value or the client becomes too high maintenance, they often let the case go and move on to another personal injury claim, generated from their large advertising budget.

Whether it is my firm or another law firm, let the attorney handle your car wreck where your case is going to be the big fish in their little pond. From over 25 years of practicing law, I promise you that you will get more bang for your buck with this small guy. After all, can you reach your injury attorney on his cell phone? All of my clients can!

Unlike the television advertising lawyers, I am not going to tell you that every pile of dog poop is worth money. I will, however, make sure that you know what your legal rights are so you can make an informed decision about the damage to your car, your medical treatment and your personal injury claim!

I am still working during this lockdown. I will come to you if you can’t come to me and I always wear a mask. If you have been injured in a car accident or a motorcycle wreck, quit listening to the nonsense and empty promises made by the TV advertising lawyers. Instead, call me directly on my cell phone and get immediate answers to your problems. It is really that simple.

All the best and stay safe during this crisis.

Tag: Louisville car wreck attorney

Going Against the At-Fault Driver in a Kentucky Car Accident