What information do you need to know following a car wreck? Here is an accident guide that will help you through some of the process. While I hope this legal tips help guide you, I would prefer you contact me on my cell phone at (502) 609-7657, (toll-free 855-REACHMYCELL), so we can figure out the specifics of your car wreck together.
“I was in a car wreck. What do I do now?”
First, cooperate with the local police department and obtain the report number they assign to your report. Usually, in Kentucky and Indiana, they use a service called buy crash.com (https://www.buycrash.com.)
When I first speak to someone injured in a car wreck, I will usually ask for their report number right off. I do this because buy crash.com lets me pull up the accident report, through the internet, and download a copy to my computer. This way, I can talk to my client about who the police officer thought was at fault for the car wreck, who was issued a citation and which party was insured by which insurance company. If a police officer does not come to the scene of the car accident, make sure you get all of the other driver’s information, including :a picture of their license plate, their driver’s license and their insurance card.
Second, if you are injured or are feeling pain, get checked out either at your local hospital or by your family doctor. Kentucky is what is known as a no-fault state and Indiana is what is known as a med-pay state. Basically, this means that the vehicle you are in will cover some of the medical expenses you incur as a result of the car wreck. If that vehicle was uninsured, we can use that insurance coverage to pay your medical expenses. This is an area that is complicated that I have blogged on before. http://www.attorneydesmond.com/kentucky-car-wrecks-use-car-insurance-pay-medical-bills. The gist is get some medical attention if you were injured in the car wreck. As your personal injury lawyer, I will do my best to find some way to make sure these medical bills get paid.
Third, take photographs of the damage to the vehicles, the damage to your car and any bruises or lacerations. Especially when it comes to motorcycle wrecks and car accidents, the old phrase about a picture being worth a thousand words is definitely true. Bruises, lacerations and scrapes heal but a picture, taken near the time of the car wreck, really can demonstrate to a jury just how severe the impact was and why you are hurting from this car wreck.
Fourth, do not settle any part of your personal injury claim. A personal injury release does just that. It is a legal contract wherein you give your right to recover part, or all, of your personal injury claim stemming from a car wreck. If an insurance company is offering you money immediately to settle your injury claim, they are not being your friend. They are trying to buy the risk that you might need more medical treatment; especially costly treatment such as for surgery. The job of an insurance company is to protect its insured, (ie. the at-fault driver), from a lawsuit. How do they do that? By getting the claim resolved quickly before its value may increase or exceed the amount of insurance coverage purchased by the at-fault driver.
To illustrate, when I conclude a personal injury claim and my client signs a personal injury release, at the request of the insurance company, before I can release any part of the personal injury settlement to them. As a result, I tell all of my clients the following:
“If you go back to the doctor tomorrow and he tells you are blind because of the car wreck, there is no way to recover anything further. It does not matter how when it was discovered or how badly you were injured. You can not recover one cent more and your personal injury claim is concluded. The personal injury release was a contract and no matter how bad the terms of that contract may be, you will be held to it. “Caveat Emptor” means let the buyer beware and this harsh concept controls the law of personal injury releases.”
So whatever you do, do not agree to a personal injury settlement immediately after a car wreck or before talking to an attorney.
Fifth, be very careful about whether you really want to provide either insurance company with a recorded statement. The gist of a recorded statement is that they are pinning down the facts of the car wreck and your injuries shortly after the occurrence of the car wreck. In other words, to borrow from a phrase from criminal law, whatever you say can and will be used against you at a future date. Before I agree to a recorded statement, I want to know why such a statement is necessary. If it is just the company’s protocol and the liability for the wreck is clear, it probably is not necessary. Also, I warn my clients to keep their answers brief, don’t guess at an answer and don’t understate their injuries.
I handle car wreck claims for a career. I am literally dealing with injury claims 24 hours a day seven days a week. As a result, call me because I will be up and happy to talk to you about your injuries and how the accident happened. You can reach my on my cell phone at (502) 609-7657 or toll free at 855-REACHMYCELL.
Top 10 Mistakes You Can Make in Handling Your Own Automobile Injury Claim
10) Don’t go to the doctor. The injury claim lives and dies on the contents of your medical records. If you don’t go to the doctor, it appears you must not have been in pain.
9) Not having the right kind of insurance before the claim occurs. It is: uninsured motorist; underinsured motorist coverage and; health insurance to make sure you can get your medical expenses paid for. There is no guarantee that the at-fault driver has enough insurance coverage to satisfy your personal injury claim and this let’s us plan for worst-case scenarios.
8) Missing the Statute of Limitations. Every case has a Statute of Limitations that varies by state and the type of case. The essence is that if your claim is not filed with the proper court in the prescribed time, the claim is barred like it never existed.
7) Immediately bringing up settlement to the insurance company. It makes you look like your primary concern is money. Instead, concentrate on your injuries and do what you need to get better.
6) Don’t settle your personal injury claim too early. When an insurance company makes an offer to you immediately after the claim, they are trying to buy the risk that you may need more treatment. Don’t think that they are doing you any favors.
5) Signing documents without reading them. If you do sign a release of your personal injury claim, your claim can be done before it gets started. I always tell my clients when they are signing a release, it does not matter how severe of an injury is discovered at a later date, you cannot recover anything further on their injury claim.
4) Guessing on distances and facts. Many insurance companies want to do recorded statements with you immediately after the car wreck. Sometimes, when facts are in dispute, that can be a good way investigate the claim further. However, if you guess, those estimates may be used to determine liability for the wreck.
3) Posting facts regarding the car wreck or your injuries to Facebook. Very simply, for cases involving litigation, most defense attorneys will make you produce all your Facebook, or other social media, since the wreck. To borrow a line from the Miranda warning, whatever you say can be used against you in a court of law.
2) Not understanding that all of your previous medical history is relevant to the injury claim. Insurance companies may want several years of your medical history. The idea being that if they did not cause the injury but rather aggravated a pre-existing injury, your claim is worth less.
1) Becoming stubborn about the perceived value of your claim. Very simply, we all want to believe our own hype. A bird in the hand is always worth two in the bush and every jury verdict is a gamble. Accurately predicting what twelve people will think is difficult for the best attorneys or judges.
KENTUCKY IS A NO-FAULT STATE BUT,
You Can Sue The At-Fault Driver For Your Damages!
Most people think that because Kentucky is a no-fault state, you can’t sue the other person for your damages. This idea is completely incorrect! In Kentucky, you can absolutely sue that at-fault driver for your damages. No-Fault coverage is also referred to as no-fault benefits, basis reparation benefits, PIP benefits or personal injury protection. Whatever you call it, it means that your medical bills and lost wages will be paid by the insurance company for the vehicle you are riding in, regardless of how the accident happens.
For example, if you are driving in my car and another driver collides with the rear-end of the car, my insurance company will pay for the first $10,000 of your medical expenses. This is true no matter how the accident happened. So even if we are standing still and hit by a drunk driver, my company is still responsible for your medical bills and lost wages. After they pay your PIP benefits, they can got against the drunk driver’s insurance company through what is known as a subrogation claim. However, they have to pay these benefits as long as they are reasonable and related to the accident.
No-fault benefits are designed to make sure that you can get the medical treatment you need in the case of an accident. No-fault coverage typically includes several other kinds of losses that can also be recovered. However, medical expenses and lost wages tend to be what it is primarily used for. No-fault insurance will also pay your medical expenses as your treatment is incurred rather than a lump settlement after your treatment is completed.
HOW MUCH NO-FAULT INSURANCE DO I NEED?
In Kentucky, the law does not allow an automobile insurance policy to have less than $10,000 in no-fault coverage. However, I recommend that you carry at least $30,000 per person in insurance coverage. In my experience, this coverage tends to be very cheap and such an amount increases your likelihood to get the medical treatment you need as a result of the accident. Further, the basic $10,000 of no-fault insurance is not “stackable”. However, added or optional no-fault coverage is. What this means is that if you have purchased $30,000 of no-fault on all three of the cars you own, you may qualify for $70,000 in no-fault benefits.
Kentucky law requires every driver to have liability insurance coverage of at least $25,000 per person. I would also suggest that everyone contact their insurance agent and explore the cost of adding OPTIONAL NO-FAULT BENEFITS or ADDED BASIC REPARATION BENEFITS.
Why do I think added basic reparation benefits are so important? In my career, I have dealt with a number of cases wherein people have sustained a permanent injury or disabling trauma. Unfortunately, when I am at the hospital meeting with these potential clients, I asked many questions that I have to respond with “I don’t know.”
Until I have some time to investigate the matter, I don’t know if the other driver is truly insured and how much is he insured for. So in addition to every other fear and concern my clients are facing at that moment, they now have to be concerned about the financial effect this accident could have on their life.
Very simply, added basic reparation benefits or no-fault coverage means that no matter what, I have a tool to get my client’s medical bills paid, get them the treatment they need and allow them to recover lost wages immediately after an accident instead of months later. Whether you use me as your attorney or hire another personal injury lawyer, you will be glad that you followed my legal advice and purchased added basic reparation benefits on your automobile insurance policy.
WHAT IF I WANT TO USE MY HEALTH INSURANCE AND LEAVE MY AUTOMOBILE INSURANCE OUT OF IT?
Yes, you can use your health insurance to pay your medical bills but, not exactly. First, your health insurance is likely to argue that they owe nothing until your no-fault coverage is exhausted. They would correctly tell you that PIP benefits are primary over your health insurance. As a result, until you can show proof to them that your no-fault benefits are exhausted, they are not likely to pay any of the medical expenses related to your personal injury claim.
Second, according to Kentucky law, the right to recover the first $10,000 in medical expenses and lost wages is not your right but the right of the PIP carrier. This makes sense because they are responsible for these expenses so they should have the right to recover them. The problem being that if you approach the liability carrier and try to settle your personal injury claim for a total of $10,000, $5,000 for pain and suffering and $5,000 for medical bills, they will tell you that legally they do not owe the $5,000 in medical expenses and they would only agree to pay you $5,000 for your pain and suffering claim. This is why I insist my clients use their basic reparation benefits coverage as otherwise, Kentucky law penalizes them.
Further, your health insurance carrier will then have a subrogation claim or a lien against the case. A lien means that they have the right to recover any amounts they paid out from any settlement you reach with the insurance company for the at-fault driver. Also, you will still have your co-pays and deductibles to deal with and you don’t know if all your doctors will accept your health insurance.
However, when my client has suffered a severe trauma and has significant medical expenses, I will attempt to use their health insurance instead of their no-fault coverage. Why? Because if the trauma unit of University of Louisville Hospital has a $40,000 medical bill and they recover the $10,000 in no-fault benefits, you still owe them $30,000 for the treatment they rendered to you.
But if I can get that $40,000 medical bill submitted to my client’s health insurance, my client’s health insurance, because of contracts they have with the University of Louisville Hospital, might pay out $12,000 to satisfy that $40,000 bill. Yes, my client’s health insurance carrier has a right to recover the $12,000 from my client’s personal injury settlement. Nevertheless, $12,000 eats up a lot less of my client’s personal injury settlement than a $40,000 medical bill. Moreover, if I was able to reserve and preserve my client’s no-fault benefits, I can really stretch a dollar bill.
RESERVING NO-FAULT BENEFITS.
If you or a loved has been in a motorcycle wreck, car wreck or tractor-trailer accident, reserve your no-fault benefits immediately. The Kentucky Statute is KRS 304.39-241 and it states:
304.39-241 Insured’s direction of payment of benefits among elements of loss — Direction of payment to reimburse for medical expenses already paid.
An insured may direct the payment of benefits among the different elements of loss, if the direction is provided in writing to the reparation obligor. A reparation obligor shall honor the written direction of benefits provided by an insured on a prospective basis. The insured may also explicitly direct the payment of benefits for related medical expenses already paid arising from a covered loss to reimburse:
To put this statute in English, you have a right to reserve your no-fault benefits for your lost wages or other losses incurred.
So in the case I brought up wherein the client has an initial hospital bill for $40,000, we reserve my client’s $10,000 in PIP benefits and allow his health insurance to pay his medical bills. They pay out $12,000 for this $40,000 bill. We then use the $10,000 in PIP coverage and apply it to the health insurance lien. As a result and only if you assume I can’t negotiate this amount down further, $2,000 comes out of my client’s settlement instead of $12,000. Now, you can see the importance of reserving these benefits immediately whenever the car wreck or motorcycle accident involves a trauma.
MY INSURANCE COMPANY IS ASKING FOR A PEER REVIEW OR AN INDEPENDENT MEDICAL EXAM. WHAT DOES THAT MEAN?
In essence, your insurance company is looking for a way to not pay your medical bills. Remember that your insurance company owes you no-fault benefits if the medical bills are reasonable and related to the accident. Well, if the insurance company has a doctor saying that the bills are not for treatment related to the accident or that the charges were not reasonable, they don’t owe them.
They call it an Independent Medical Exam. Most plaintiff’s attorneys call it a Defense Medical Exam because the doctor they send you to, they have used hundred of times. If you agree to one of these, they will give you the name of a doctor that will see you one time and perform an examination. Thereafter, that doctor will issue a report to the insurance company giving his opinion as to your current medical condition and whether he believes you have been or are truly hurting.
So let’s apply some logic here. Your insurance company is sending you to a doctor in an effort to reduce the money they have to pay on your claim and that doctor they are using regularly gets business/income from that insurance company. Does it not seem obvious that they are slanting the cards in their favor
I don’t recommend you agree to an I.M.E. In fact, if the insurance company is asking for such an exam, it is probably time to get an attorney. In Kentucky, an insurance company has to obtain a court order compelling you to attend such an exam and the case law says that they have to show “good cause” for the request. While most courts tend to grant them the right for such an exam, I would seek legal advice as to whether this is in your best interests.
In contrast to an I.M.E., a doctor performing a peer review never actually examines you. Instead, the peer review doctor looks over your medical records and bills and issues a report giving his opinion as to whether your treatment was proper in length, total charges and the type of treatment rendered. And yes, the insurance company uses this doctor regularly and he typically issues a report allowing them to deny all or some of your charges.
A peer review is typically performed by a chiropractor on chiropractic charges. In fact, this is the only kind of review authorized by the Kentucky statutes. However, the insurance carriers are now using medical doctors to review chiropractic charges. There is a debate and litigation pending as to whether this is allowed or not.
For you as a consumer, you should know that your insurance company has a duty to hold you harmless for any charges that they deny. As a result, if you are not going to seek legal advice, make sure at the very least you get a letter from them stating that they will hold you harmless for these charges and that they will provide you with legal counsel, at their expense, if this medical provider should sue you over the denied charges.
CAN I REJECT MY NO-FAULT BENEFITS?
Yes, you can reject your PIP or No-fault benefits. However, generally speaking, I do not recommend you do so. If you reject your no-fault benefits, you recover the right to recover the first $10,000 of your medical expenses and lost wages from at at-fault driver or his insurance carrier. This is how Indiana does it. Your medical bills and lost wages are part of your total claim for pain and suffering against the at-fault driver or his insurance carrier.
The problem is that the liability carrier is not going to settle any part of your claim until they can settle all of it. So if you reject your no-fault benefits, you have no way of getting your medical bills paid or lost wages paid until your personal injury claim is settled. I tell most of my client’s that the average personal injury claim does not resolve until six to eight months after the accident.
To illustrate, I used to be in-house counsel for Yellow Cab Company of Louisville and because of this connection, I represent a lot of cab drivers that have been injured in automobile accidents. Because Yellow Cab does not want to be paying their driver’s no-fault benefits, they have their cab drivers sign a rejection of these PIP benefits. This rejection is then filed with the Kentucky Department of Insurance.
When I create a demand package for a cab driver’s personal injury claim, I send a request up to the Kentucky Department of Insurance for copy of my client’s rejection of no-fault benefits. This copy then becomes part of the demand package and allows me to argue the liability carrier that they owe my client’s medical expenses in addition to his personal injury claim. This way my client’s medical bills are recovered as part of his personal injury claim. The problem of course is that if my client’s medical expenses have been owing for months, he has probably dealt with collection calls and/or the owed charges could affect his credit score. As a result, in this instance, I hope my client has health insurance and that we might have been able to use his health insurance to pay his medical expenses as they were incurred.
In my opinion, the only time you reject your PIP benefits is if you are riding on a motorcycle and decided not to purchase no-fault coverage. In this instance, Kentucky law penalizes a motorcycle and does not allow him to recover the first $10,000 in medical expenses and lost wages. The law states that this is the right of the non-existent PIP carrier, not your legal right. As a result, if you reject your no-fault benefits while operating a motorcycle, you can recover your medical bills and lost wages from the liability carrier when your personal injury claim is settled. In this way, you avoid the penalty the law imposes for riding a motorcycle.
When a car crash or a motorcycle accident happens in Southern Indiana or Louisville, Kentucky, how do we get the medical bills stemming from that motor vehicle accident paid? The answer to that question really depends upon whether your car or motor vehicle is insured in Indiana or Kentucky.
Kentucky is a no-fault state. In its simpliest form, that means that if the automobile accident happens in Kentucky and your car is insured, your automobile insurance company immediately owes you $10,000 of no-fault coverage. No-fault coverage is primarily used for medical bills and lost wages. Indiana is a med-pay state. This means that the med-pay coverage only applies to the medical bills and it is not automatic when a car wreck happens. So someone in Indiana can be in a car crash and they may or may not have med-pay coverage on their automobile policy. If they don’t have med-pay, as a personal injury attorney I hope that they have health insurance coverage so that I know I can get their medical bills paid and make sure that they get the medical treatment they need.
For a consumer, I want you to understand that you should look into optional no-fault coverage, or med-pay coverage, on your automobile insurance policy. It tends to be cheap insurance coverage for what you get and it makes sure that you are have a way to get your medical bills paid in the case of car wreck or motorcycle accident.
MED-PAY INSURANCE IS AVAILABLE IN INDIANA.
Indiana is not a no-fault state and the most similar type of coverage you could purchase would be referred to as Med-Pay. Med-Pay is limited to covering only your medical expenses that are related to the accident and does not include your lost wages. Moreover, med-pay is not automatic. What I mean by automatic is in Kentucky, the $10,000 is the state minimum for basic reparation benefits and it applies as soon as the car wreck happens. In Indiana, there is not set minimum for med-pay coverage. So if you did not purchase med-pay coverage through your automobile insurance, it does not apply. In that instance, we would have to use your health insurance or a lien with the doctor’s office, to get you the treatment you need for your injuries.
HOW MUCH MED-PAY COVERAGE DO I NEED?
The answer to this question really depends upon your financial means and whether you have health insurance. However, I would suggest that you consider at least $30,000 in med-pay coverage on the insurance policy for the vehicle you own. Very simply, with the high costs of medical treatment, it is actually pretty easy to run up over $10,000 in medical bills from an automobile accident. For example, test such as an MRI or a CT scan typically cost over $2,000.
MY HEALTHI NSURANCE IS SENDING ME LETTERS SAYING THEY PAID SOME OF THE MEDICAL BILLS AND CLAIMING I OWE THEM MONEY. WHAT DO I DO?
In the last 15 years or so, health plans have learned to put into your health plan what is called a right of subrogation or a right of reimbursements. A right of subrogation essentially means that they have the legal right to step into your shoes in pursuing their claim against the at-fault party. A right of reimbursement means that they have a right to recover the money they paid for your medical expenses directly from you. Typical subrogation or reimbursement language is contained below:
“If we make a payment under the policy and the person to and for whom payment was made has a right to recover damages from another, we shall be subrogated to that right. That person will do whatever is necessary to enable use to exercise our rights and shall do nothing after loss to prejudice them; if we make a payment under this policy and the person to and for whom payment is made recovers damages from another, that person shall hold in trust for us the proceeds of the recovery and shall reimburse us to the extent of our payment.
We agree to hold any moneys received as a result of settlement or judgment in trust for the company, to be paid to the company immediately upon same coming into my hands provided that any sum received in excess of the amount paid by the company, including legal or other expenses incurred by it in completing the recovery shall be retained by us.”
To translate all that legal language, the health plan is saying if you recover money for the injuries you suffered, we have a right to recover from you. The idea is that you should not be able to keep the money recovered for your medical bills in your personal injury settlement because the health plan paid those bills. Of course, this reasoning completely overlooks the fact that you paid your health insurance premiums for this type of insurance coverage and that you had no right to negotiate the terms of your health plan.
The rights of these health plans are controlled by a Federal law known as ERISA. While all health plans are ERISA plans, the question is whether they are self-funded or not. Self-funded meaning that the plan members, usually the employees, contribute all their premiums to a fund and the payment of health insurance claims comes directly from that fund. Typically, Anthem or Blue Cross might be hired to serve as a third-party administrator for this Fund. In such a case, Anthem or Blue Cross is responsible for the processing of the medical claims but they are not acting as an insurance company. Rather, the Fund has ultimate financial responsibility for the payment of these expenses. In exchange for creating this type of self-funded health plan, Federal law gave these self-funded plans superior rights under the law. Generally, the argument is that they are controlled by Federal law and any state law is pre-empted. So when the language of the health plan says they are a first priority lien and they have the right to recover all the money they paid regardless of whether you were made-whole or not, the argument is that Federal law controls and this is their rights under the law.
Please note that this is an ever-changing area of the law depending upon the most recent U.S. Supreme Court decision and/or the court opinions issued by the various Federal circuits. So the argument above is somewhat an oversimplification of the issues.
Attorneys differ on how they want to handle subrogation claims. When I represent a client, I tell them to provide me with all the information they have in regard to their health plan and I will deal directly with them. My goal is generally to minimize the interests of the health plan so that ultimately, my client can put more money in his pocket. Unfortunately, a lawsuit might be required to achieve this result.
You have friends telling you to contact their attorney, insurance companies telling you don’t need a lawyer and twenty injury attorneys on television promising you checks.