personal injury Archives - Louisville Accident & Injury Attorney Jim Desmond

Personal Injury and the Corona Virus

As a personal injury lawyer, I did not expect to have to comment on the coronavirus. However, several phone calls I recently received have made a couple of points worth mentioning.
1)    I am still open and doing business. If you have a legal question about a car accident, I am still answering my cell phone and will continue to do so.
2)    Many aspects of a personal injury claim can be handled electronically if that makes you more comfortable.
3)    Yes, I am happy to come to you to meet with you or we can handle most of the initial sign up over the phone.
4)    If a doctor’s office is closed because of the virus, we can find you another one where you can continue your treatment. I know of some doctors who will even come to you.
5)    Most importantly, from what I am hearing about the virus, I expect the U.S. economy is going to suffer a downturn.  Because of this downturn, there is a strong likelihood that more drivers will not have car insurance or will lower their liability coverage in an effort to save money. As a result, it is all the more important that you realize that the other driver may not have enough insurance coverage to pay the medical bills from your car wreck or any of your other out of pocket expenses.
6)    As a result, the need to have at least $100,000 per person of uninsured and underinsured motorist coverage, on your own automobile insurance, is all the more important.

What Does it Mean to Stack Insurance Coverage

What does it mean to stack insurance coverage in a Louisville area injury accident under Kentucky or Indiana Law? Kentucky law allows stacking of uninsured and underinsured motorist benefits depending upon how the insurance policy is written. Indiana does not allow insurance policies to be stacked.

Simply put, stacking refers to recovering insurance polices from more than one applicable policy. In other words, you have $25,000 of uninsured motorist coverage on your Volvo, Chevrolet and your motorcycle. Stacking would say that you have $75,000 of coverage because you have 3 policies of insurance with $25,000 on each policy.

By stacking coverage from more than one car or motorcycle insurance policy the injured party can increase the total amount of his recovery, assuming the value of his claim is worth more than the just the initial insurance policy.

For example, if you own three vehicles: a Buick, a Toyota and a Ford Truck. On all three of these vehicles, you made sure you put $100,000 of underinsured motorist coverage on each automobile policy. Well stacking means that since you effectively bought three $100,000 policies of underinsured motorist coverage, you have $300,000 of underinsured motorist benefits available to you; even though you were only in one of your vehicles at the time of the accident.

Insurance companies are not fond of stacking because it ultimately means that they may have to pay out more money to settle your personal injury claim. As a result, they have now written most insurance policies so that stacking does not occur. They do this by making it so that you have one policy of insurance that covers you no matter which vehicle you are riding in at the time of the wreck.

Now, let me explain to you how this concept can work when dealing with a car wreck. I had a gentlemen approach me about a case wherein his first medical bill was $22,000 and the at-fault driver was only insured for $25,000. I looked at the automobile policy and there was no underinsured motorist coverage on his Toyota. Nevertheless, we were able to get my client’s underinsured motorist coverage from his other automobile insurance that covered his Cadillac.

Very simply, to avoid stacking, his insurance company wrote the underinsured coverage so that it would apply regardless of the vehicle he was operating. In this case, it meant we had an additional $25,000 in insurance coverage we could go after.

Is it possible to stack insurance coverage in your situation, and how would that affect the amount of money you receive? I would need to see your whole policy and see how your benefits are defined therein. As a result, I suggest you contact me at (502) 609-7657 and we discuss this matter further.

How Do I Value My Personal Injury Claim

How do I value my personal injury claim after a car, truck or motorcycle accident in the Louisville area?

First and foremost, the only one who can give you a reasonably accurate value for your personal injury claim is an experienced personal injury lawyer that has looked at all your medical records and bills.

Therefore, anyone who promises you they can get you “X” dollars from the start, is just trying to get you to sign up with their law firm.

Please don’t listen to your friends as they will tell you that they know of someone who did not get hurt, or did not get hurt as bad as you, and he/she recovered $25,000. While I wish that were the case, it most likely is not. Insurance companies are not in the business of just handing out money and they fight before they just hand over money to an injured person.

Also, you don’t try to use standard formulas like three times your medical expenses. Those formulas existed in the past and are no longer used by insurance carriers. These assumptions will take you down the wrong road and you may end up in a lawsuit because of false expectations.

Until someone looks at all of your medical records, no attorney can really provide you with a value for your case. A case value depends upon a multitude of factors including: amount of property damage; length of treatment; type of treatment; lost wages; pre-existing medical conditions existing before the accident; liability for the accident; aggravating circumstances such as a drunk driver; insurance company involved and; prior experience with this particular insurance adjuster.

Honestly, rather than the value of your personal injury claim, let’s concentrate on getting you the medical attention you need to get better, figuring out how to get your medical bills paid and deciding how to minimize your medical expenses so that we can ultimately maximize the net recovery from your personal injury claim. After all, it does no good to recover a large sum on your personal injury claim only to have these funds go out the window to lawyer’s and doctors.

Also, I see many attorneys act like realtors when they first speak to a potential client and promise that the world to sign up the case. Realtors, to obtain a house listing, have no problem using the figures you want to believe your house is worth only to tell you six months later, “Sorry I was wrong and the market changed.” I won’t do that. I am not going to promise you the moon and let you get your hopes up only to change my story once the first low offer comes in from the insurance carrier.

The answer to the question How do I value my personal injury claim is actually pretty complicated.

As an attorney who knows other attorneys who also have extensive personal injury practices, I have an advantage that you don’t. Many times, without revealing information protected by the attorney-client privilege, I will discuss your case with attorney friends of mine so I can get their input as what they believe the case is worth. Basically, I want to make sure that I am accurately valuing your personal injury claim. After all, as an attorney who is always advocating for you, it is easy to start believing our own hype. I don’t want to put you through the rigors of a lawsuit unless I am sure that the case justifies it and the insurance company has incorrectly valued the claim.

How do I value my personal injury claim after a car, truck or motorcycle accident in the Louisville area? If you want an attorney who will give you a straightforward, honest evaluation of your case, I can do that. Call me on my phone, [number], so that we can discuss it.

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

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.

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.

Tag: personal injury

How do I value my personal injury claim after a car, truck or motorcycle accident in the Louisville area?

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