I had another case wherein an Army Officer, an experienced motorcycle rider, was six months shy of retiring from the military and was killed by an elderly man driving a Buick with only $250,000 in insurance coverage. He had served this country for 19.5 years of military service as well as serving in the Iraq War. My client was only in his early 40’s and he had a job lined up to act as a security consultant in the Iraq War with an annual six-figure salary. His future lost wages alone were about four times more than what we could recover.
I handled another case involving a Ft. Knox soldier who had 15 years of military service and he was discharged because of the injuries sustained in the motor vehicle accident. This soldier was hit by a semi-tractor trailer with plenty of insurance coverage. As a result, after extensive litigation and bringing co-counsel into the lawsuit, we recovered $650,000 on his behalf.
I just recently handled a motorcycle case wherein my client’s initial hospital bill was over $22,000 and the at-fault driver was only insured for the state minimum, $25,000 per person. The saving grace on this claim was that we were able to find underinsured motorist coverage, on an automobile insurance policy, that covered my client’s injuries while he was riding a motorcycle.
I will discuss below about this last case again later in the book because it illustrates both the need for underinsured motorist coverage and the battle with a health plan to prevent their subrogation/right of reimbursement claim from eating up my client’s recovery.
Out of all the sections in this book, I really hope you will take the time to read the sections about insurance coverage because arguably, those are the most important sections. Very simply, when a motorcycle wreck happens, it Is like a photograph is taken. All the insurance coverage that applies is in that photograph and none can be removed from that photograph. As a result, all attorneys, no matter who you hire, are constrained by the motorcycle insurance you purchased before the motorcycle wreck ever occurred.
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RESERVING NO-FAULT BENEFITS, KRS 304.39-241
It is not very often that an author tells a reader to put his book down but in short time from now, I am going to do just that. I am going to tell you that because I want to stress to how important this one concept is.
As I discussed above, KRS 304.39-241 lets us reserve and direct the payment of no-fault benefits in Kentucky. So if you are reading this material on the internet and someone in your family was just in serious motor vehicle, pick up the phone and immediately tell your automobile insurance to reserve any PIP benefits that might be available because of this car wreck. Then call my cell phone, (502) 609-7657, and we can discuss whether to keep those benefits reserved or not.
Why reserve PIP benefits? I had a case wherein the client had an initial hospital bill for $40,000 and we reserved my client’s $10,000 in PIP benefits and allowed his health insurance to pay his medical bills. They paid out $12,000 for this $40,000 bill. We then took the $10,000 in PIP coverage and applied it to the health insurance lien. As a result, only, $2,000 came 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. By law, the Kentucky and Indiana Bar Association want me to tell you that every case is different and past results do not guarantee future successes. And yes, both Bar Associations would be correct. However, all I am doing at this point is asking you to give me two tools to work with: 1) added reparations benefits or med-pay benefits and; 2) an immediate reserving of these medical benefits. Obviously, if I don’t these tools, I can’t enact the procedures that I have described which increase my chances of maximizing the recovery on your personal injury claim(s).
I WANT TO USE MY HEALTH INSURANCE AND LEAVE MY AUTOMOBILE INSURANCE OUT OF IT. VERY, VERY HARD TO DO!
In Indiana, you can sometimes pull this off. This is because Indiana med-pay is not automatic. You have to purchase it to have it on an insurance policy. So if I am handling an Indiana car wreck and my client does not have med-pay coverage, I direct all of my client’s medical providers to bill my client’s health insurance. Also, Indiana law does not abolish tort liability for the first $10,000 in medical expenses as Kentucky law does. In other words, Indiana law allows you to make a claim against the at-fault driver for all of your medical expenses while Kentucky transfers that right for the first $10,000 of these expenses to your no-fault carrier. I know that makes no sense right now but, I will explain it below.
However according to Kentucky law, no-fault coverage is primary over health insurance. Therefore, unless your hospital charges are very high, your health insurance is likely to argue that they owe nothing until your no-fault coverage is exhausted. In Kentucky, PIP or no-fault 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 is referred to as the abolition of tort liability. It is a fancy way of saying if the medical expenses and lost wages are or should be owed by a PIP carrier, you lose the right to recover these benefits from the at-fault driver. The relevant statute is KRS 304.39-060.
This makes sense because they, the no-fault carrier, are responsible for these expenses so they should have the right to recover them from the at-fault driver. So in Kentucky, 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 correctly that they do not owe the $5,000 in medical expenses. They will agree to only pay you $5,000 for your pain and suffering claim. This is why I insist my clients use their basic reparation benefits coverage instead of their health insurance. Otherwise, by using their health insurance instead of the no-fault coverage, my clients would be penalized by Kentucky law as they would not be allowed to recover their medical expenses from the at-fault driver but arguably would still owe repayment of the ERISA health insurance lien.
As discussed above, a health insurance carrier has 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. Further, 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.
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Contact Experienced Louisville Personal Injury Lawyer Jim Desmond
I hope you found my personal injury eBooks to be helpful. I invite you to call me on my cell phone for a free consultation at 502-609-7657. If you would prefer to email me I will return your inquiry as soon as possible.