Car Wreck and The Driver had No Insurance or Very Little Insurance!

Louisville Uninsured Motorist and Underinsured Motorist Accident Attorney

The laws of Kentucky and Indiana only require that a person have $25,000 per person in insurance coverage.  In other words, there is nothing in the motor vehicle law for Kentucky or Indiana that guarantees the at-fault driver can pay your personal injury claim or even your medical bills. So yes, a drunk driver can lawfully drive around with only $25,000 in insurance coverage but cause his injured victims to sustain $30,000 in medical expenses.  While a drunk driver would be prosecuted, through criminal law, for driving under the influence, criminal law involves imposing fines and prison time as punishment.

For this reason, it’s extremely important that you have uninsured and underinsured motorist coverage on your own automobile insurance policy. If you ride a motorcycle, the same is true for your motorcycle insurance policy.  In its simplest terms, uninsured motorist coverage means that your insurance company acts like the insure the at-fault driver and whatever they pay out on your behalf, they sue him to recover that money back.  This is known as a subrogation claim, i.e. a claim wherein they effectively stand in your shoes for legal purposes. However, the key for you is that your insurance company, NOT YOU, bear the risk that nothing can be collected from this at-fault driver.

Underinsured is similar but it applies when the at-fault driver was insured but did not have enough insurance. In this instance, assuming your claim is worth more than the insurance coverage limit on the other driver, I can potentially recover more money from your own insurance policy after we have recovered the maximum amount from the at-fault driver. This is why it is important for a good personal injury lawyer to try and discover multiple layers of insurance coverage, http://www.attorneydesmond.com/finding-layers-of-insurance-coverage/, all that can potentially increase the client’s personal injury settlement.

FREQUENTLY ASKED QUESTIONS ABOUT UNINSURED DRIVERS AND DRIVERS WITH TOO LITTLE INSURANCE.

The other guy was at fault so is he not responsible for all my medical bills from this wreck? WRONG! I can sue the at-fault driver in an effort to obtain a judgment against him that states he owes all of your medical bills and the value of your pain and suffering claim. However, a judgment is  a piece of paper that says he owes you money; nothing more. You have to collect on that judgment, through garnishments and foreclosures, for it to have any value.  If the at-fault driver has no assets to his name, that judgment is of little value.

Isn’t it illegal to drive without car insurance?

The law requires all drivers in Kentucky and Indiana to have at least the state minimum of car insurance.  Unfortunately, many people we share the road with still drive without insurance.  Uninsured Motorist protects you and allows you to recover for your injuries  if you are hit and injured by an uninsured motorist or a hit and run driver.

The other guy has insurance so why do I need underinsured motorist coverage?

Underinsured motorist coverage lets me make a claim against your own insurance policy for the amounts not covered by the at-fault driver’s insurance.   In other words, assuming the value of your personal injury claim is high, I can recover all the insurance coverage on the at-fault driver and then make an underinsured motorist claim against your own policy for the amounts not recovered initially.  Whether underinsured coverage applies and whether you took the proper steps, required by Indiana and Kentucky statutes, to preserve this claim, is a complicated question.

How Much Uninsured Motorist Coverage do need to Purchase?

I  recommend that everyone carry at least $100,000 per person in uninsured motorist coverage. While I would like you to have more, this is at least a fair amount that we can recover in the event of a serious wreck.

As a result, I would ask you again to contact me so that we can make sure your personal injury claim is properly evaluated before any steps are taken that might impact this claim. I can be reached on my cell phone at (502) 609-7657.  I highly recommend you maximize your policy limits for uninsured motorist and underinsured motorist coverage or UM/UIM.  This is some of the least expensive insurance you can buy, and as you can see its some of the most valuable insurance you can carry.

What kind of automobile insurance protects me when I did not cause the car wreck?

Everyone, on a car insurance policy or a motorcycle insurance policy, should have at least:

1)   Underinsured Motorist Coverage of at least $100,000 per person;

2)   Underinsured Motorist Coverage of at least $100,000 per person and;

3)   No-fault, Med-pay or PIP coverage of at least $30,000 per person.

However, if you can afford more insurance coverage than this, buy it! Just make sure you have these three kinds of insurance coverage on your motorcycle.

How Much Insurance Coverage Does James Desmond Have?

I tell you this only so you know I practice what I preach. I have two children and to make sure that they are protected, I have $500,000 of uninsured motorist and $500,000 of underinsured motorist coverage on my automobile insurance policy. I also have $30,000 of no-fault coverage but for reasons discussed below, I expect I will be raising that shortly.

 

My Insurance Policy Says I Have $25,000/$50,000/$10,000.

In Kentucky, the statute for the state minimum amount of insurance coverage is contained in KRS 304.39-110.  In Indiana, the statute is Indiana Code 9-25-4-5.  Effectively, this means you have the minimum amount of insurance coverage that is $25,000 is the most any one person can recover and $50,000 is the maximum the insurance company will pay out no matter how many people are injured.

Underinsured Motorist Coverage:  Procedural Issues that MUST be Followed!!!

Very simply, if you have personal injury claim stemming from a motor vehicle accident and you intend to collect underinsured motorist benefits, you have some procedural hoops that you must jump through to preserve this claim. In Kentucky, the relevant statute is KRS 304.39-320.  In Indiana, the relevant statute is Indiana Code 27-7-5.

In essence, once you obtain a policy limits offer from the at-fault insurance carrier, you have to provide to the underinsured motorist carrier proof of that offer and proof of the limits of the at-fault driver’s limits of insurance coverage before you can accept that offer. If you fail to do this and allow the underinsured motorist carrier a chance to preserve their right of subrogation against the at-fault driver, your claim for underinsured motorist benefits will be barred.  I recommend you let an injury attorney handle this procedure rather than take a chance that you could mishandle it and jeopardize your underinsured motorist insurance claim.  If you are going to handle an underinsured motorist claim on your own, make sure you follow the procedures laid out by the statutes to the letter.

Underinsured and Uninsured Motorist Coverage:  Buy it and Hope that You Will Never Need It!

When an at-fault driver does not carry any liability insurance on his motor vehicle, he puts more than just himself at risk. If the at-fault driver injures you, there will not be any automobile insurance to cover your damages. However, you may still have a personal injury claim that we can recover monetary damages for.

I look to your own auto or motorcycle insurance to see if you have uninsured motorist coverage.  Similarly, if the at-fault driver has insurance but not enough to cover your compensatory damages, I can use your own auto insurance to recover underinsured motorist benefits once the policy limits for the at-fault drivers coverage has been exhausted.

Uninsured Motorist Coverage

Kentucky and Indiana Car Wreck Victims

Uninsured Motorist Coverage protects you and your family when the automobile accident happens and the at-fault driver does not have any liability insurance on his or her automobile. While it is illegal to drive a car without insurance in most states, it is a common occurrence on Kentucky and Indiana roadways. I believe that it is something like one-third of all drivers don’t carry insurance.

Assume that while driving home on a Saturday night you had a motorcycle wreck with a drunk driver. Now assume that the drunk driver did not pay the premium for his automobile insurance in a timely manner and was cancelled by his insurance company. While the drunk driver will most likely face criminal charges stemming from this automobile accident and his intoxication, the real question is what about the damages he has caused you because of this motorcycle wreck.

If the drunk driver did not pay his auto insurance premiums, it is very unlikely that he has any insurance coverage that might apply to this car wreck.  Consequently, how is he going to pay for your personal injury damages such as:

1) medical expenses;

2) your time off from work;

3)  the property damage to your car;

4)  your rental car;

5)  and out-of-pocket expenses.

Yes, you can sue the drunk driver for all your compensatory and punitive damages![7]  However, what good does it do you to obtain a Judgment (basically a piece of paper that says you are owed money) if he has no money, assets or a home that can be used to pay for your personal injury damages. The key to preventing this type of situation is to have purchased Uninsured Motorist Coverage from your automobile insurance company or the company that insures your motorcycle.

Uninsured Motorist Coverage allows my client to recover their personal injury damages, stemming from a car wreck, from his/her own car insurance company. Your car insurance company, whether it be by a personal injury settlement or through a lawsuit, is responsible for the damages the drunk driver was legally responsible.  Your insurance company will still argue with me about the extent of your medical and other damages, the reasonableness of your damages, the liability of the other driver and other items.  However, uninsured motorist coverage provides a definite monetary source from which you can recover your damages. Without it, your only option is to sue the drunk driver, hope he has some assets and hope any Judgment you obtain is not discharged when he files Bankruptcy.

So in a car wreck wherein the at-fault driver has no insurance, the client can still recover his personal injury claim from his own insurance carrier.  It is the client’s insurance carrier who then sues the at-fault driver to try and recover what they paid out on your behalf. This way, your insurance company and not you, bears the risk that this at-fault driver has little to no money to pay for your damages.

I recommend that automobile drivers and motorcyclists carry at least $100,000 of uninsured motorist coverage because for example, I have seen cases wherein the air ambulance bills alone total over $26,000.

Can You Reject Your Uninsured Motorist Coverage?

Yes, legally your can reject this type of insurance coverage but, I would never, never, never recommend it!!!  Instead, make sure you specifically ask for this insurance coverage and never sign anything wherein you are waiving this type of automobile insurance coverage. In short, if you don’t have this insurance coverage, you may save yourself a couple of hundred dollars a year for a huge risk to you and your family. In the event of a serious car crash, you could owe thousands in medical bills, for an accident that was not your fault, just because you tried to save several hundred dollars.

 

I Was in a Car Wreck with an Unisured Motorist.  Now What do I do?

Call me at (502) 609-7657 or 855-REACHMYCELL. It is my job to make sure that the at-fault driver was truly uninsured. Don’t assume that the other driver is truly uninsured for the following reason: 1) he might not have actually owned the vehicle; 2) he might have been working for an employer at the time of the car accident thereby putting the employer’s coverage on the hook and; 3)  had coverage through a policy in the household. There are several ways in that someone can have insurance that may not be obvious.

Underinsured Motorist Benefits:  Protection Against “Minimum Coverage for Minimum Budgets”

We have all heard the TV commercials wherein SAFE AUTO INSURANCE COMPANY advertises minimum insurance coverage for minimum budgets. However, do you really understand what this means?

Both Kentucky and Indiana law require that a car driver only carry insurance coverage in an amount of $25,000 per person and $50,000 per automobile accident.  SO THERE IS NO GUARANTEE THAT THE AT-FAULT DRIVER HAS INSURANCE COVERAGE TO PAY YOUR MEDICAL BILLS, LOST WAGES, OR YOUR CLAIM FOR PAIN AND SUFFERING.

Let’s assume that you and your spouse are riding your motorcycle on Interstate 64 when another driver crosses the center line and hits your bike head-on. The motorcycle accident is severe and you are both taken to the trauma center of the University of Louisville Hospital. You undergo surgery for several broken bones and are told you have a closed-head injury. Your spouse is treated and released. You are finally released from the hospital after 10 days and you are told you should not go back to work for four weeks. Further, when you open arrive home from the hospital and open the mailbox, you open a medical bill from U of L Hospital for $43,000.

In the upcoming weeks you receive several other bills from the emergency room doctors, the MRI provider, for a CT scan and from the X-ray physicians. In total, your bills come up to over $62,000. To date, your wife has incurred about $10,000 in medical expenses between the emergency room visit, an MRI and continuing chiropractic care.  The problem is clear.  If the at-fault driver is only insured to the extent required by Kentucky or Indiana law, your medical bills alone exceed that insurance coverage.

In Kentucky and Indiana law allow a person to drive around with $25,000 in insurance, not enough to pay your medical expenses or the other aspects of your personal injury claim.  Actually, in this example, your medical bills alone totaled over $62,000.  Most insurance policies are sold in $25,000 increments until you get over $100,000 in coverage.  As a result, in this example, the at-fault driver was probably underinsured even if he had $50,000 or $100,000 in insurance coverage.

The Solution: EVERYONE NEEDS TO MAKE SURE THEY HAVE UNDERINSURED MOTORIST COVERAGE ON EVERY AUTOMOBILE/MOTORCYCLE INSURANCE POLICY THEY HAVE.

Basically, underinsured motorist coverage transfers THE RISK THAT THE AT-FAULT DRIVER DOES NOT HAVE ENOUGH INSURANCE COVERAGE TO YOUR OWN INSURANCE COMPANY.

Underinsured Motorist Coverage allows me, as your lawyer, to make a claim on your behalf against the at-fault driver and your own insurance company. Basically, this coverage takes away the risk that the at-fault driver cannot fully pay your claim.  It gives me a source from which I can recover, on your behalf, your medical bills, lost wages, future medical expenses and claim for pain and suffering.

Without Underinsured Motorist Coverage, you are gambling that the at-fault driver has enough coverage to pay your medical expenses, lost wages, pain and suffering and other damages.  My recommendation is that every car or motorcycle owned by you or your business be insured for at least $100,000 of Underinsured Motorist Coverage per person.  If you can afford more coverage, buy it!

What Does it Mean to Stack Insurance Coverages?

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. By stacking coverage from more than one auto insurance policy — or coverage for more than one car on a single 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.

In other words, you own three vehicles: a Buick, a Toyota and a Ford Truck.  On all three of these vehicles, you made sure you listened to my advice and 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 generally do not like stacking policies and therefore, they have now written most of their insurance policies wherein a single policy of uninsured or underinsured motorist coverage will cover any vehicle you are in. So to use myself as an example again, I have two automobiles. However, I have one policy of underinsured motorist coverage. My insurance company specifically listed this coverage separate in my declarations page and wrote my insurance coverage in such a way that it would apply no matter which vehicle I am driving.

Now, let me explain to you how this concept applies to motorcycle riders. 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 motorcycle policy and there was no underinsured motorist coverage. Nevertheless, we were able to get my client’s underinsured motorist coverage from his automobile insurance to apply to the injuries he sustained while riding his motorcycle. 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.

ERISA and Health Plans:  We Could Write an Encyclopedia on the Issues

To explain ERISA in a simple fashion, it is the law that governs the rights of health insurance carriers. If your medical bills were paid by health insurance of an employer’s health plan, the insurance company or plan may want you to reimburse it out of any personal injury recovery. Your “insurance” turns out to be not insurance at all, but a “loan.”

The gist of all ERISA law is that if we, the health plan, pay medical expenses on your behalf which were caused by someone’s else’s negligence and you recover a personal injury claim from any source, we have a right to recover from you.  If this sounds intimidating, then I successfully conveyed my point.

 The laws in some states, including Kentucky and Indiana, generally allow such claims by health insurance companies.  Actually, ERISA law generally tries to claim that it is controlled by Federal Law and preempts state law.

This area of law, known as “reimbursement or subrogation” is actually quite complicated and is governed by a federal law called ERISA (The Employee Retirement Income Security Act of 1974). Your attorney must understand the implications of ERISA on your case. In fact, this area is so complicated, I have before utilized consultants in the field to handle the ERISA portion of the case on an hourly basis when I have felt that their knowledge would allow a greater reduction of the money the health plan was entitled to.

Almost every health insurance plan, whether it be private, Medicare, Medicaid or state-funded, has a provision in it that says they have a right to recover the medical bills they pay on your behalf if you recover on your personal injury claim. This right, anymore, is not limited to recoveries from third-parties but rather, includes recoveries made through uninsured motorist coverage, underinsured motorist coverage and no-fault benefits. Also, most health plans have contract language saying that they don’t owe attorney fees on the amount they recover and that they are a first-priority lien that trumps your rights no matter how badly you are hurt.

The law regarding health plans is ever-changing. In fact, the U.S. Supreme Court just issued another opinion last week that largely reaffirmed the superior, legal rights of health plans.  For purposes of this book, I have to limit my discussion to say you need to understand that your health plan has a right to recover what they paid out in medical expenses as a result of your motorcycle accident.  I know it is not fair and yes, I agree that they should not be allowed to recover anything since that is what we pay the health insurance premiums to cover.  However, not matter if it is fair or not, is the law.

For my practice, I have to identify early on the interests of the health plan and look at their terms of the health insurance plan to determine the extent of their legal rights.  Unfortunately, the health plan can come in and eat up much of a client’s recovery.  This is why I have to try and negotiate a reasonable settlement with them as every dollar that does not go into their pocket, goes into my client’s pocket.

The bottom line is for those of you who are trying to handle a personal injury claim, make sure you address the interests of the health plan. The last thing you want to happen is to settle your claim and get sued by your health plan several years after the settlement.

PERSONAL INJURY LIENS

A lien means that someone has a right to get paid back. If you have Medicare or Medicaid, they have a lien by statute. If you receive med-pay benefits, disability benefits or health insurance benefits, they have a lien by contract.  Very simply, you have to assume that most companies these days have some kind of lien wherein they can recover whatever they paid on your behalf from your personal injury settlement.  If you are going to try and resolve your personal injury claim on your own, make sure you address each and every lien that might exist as a result of this motorcycle accident.

[1] These types of coverage are discussed below.

[2] With motorcycle accidents, you generally do not see no-fault coverage.  As a result, you should assume that the statute of limitations is two years from the date of the accident to be safe.

[3] In Kentucky, the statute of limitations is actually two years from the date of the accident or two years from the date of the last no-fault payment.  Nevertheless, I would hope you would contact me to discus this issue rather than take the chance that you have applied the wrong statute of limitations.

[4] No fault benefits include other elements not discussed herein.

[5] There are arguments under the statutes that contradict this interpretation. However, in my experience, these arguments have not been successful.

[6] I will tell you below how to protect yourself from this kind of irresponsible driver.

[7] Punitive damages can be recovered when a driver is guilty of gross negligence or extreme recklessness.  The argument is that a person’s voluntary intoxication qualifies as gross negligence and therefore, justifies an aware of punitive damages.  Punitive damages are harder to bankrupt than compensatory damages.

Contact an Experienced Motorcycle Accident and Injury Attorney Who Shares the Love of Riding With You

If you’ve been involved in a motorcycle accident, whether or not you or the other driver was at fault, contact a motorcycle accident injury attorney now for a free case evaluation or to review our motorcycle accident frequently asked questions. You can reach me on my cell at 502.609.7657.

The Kentucky State Bar requires me to say that COURT COSTS AND CASE EXPENSES WILL BE THE RESPONSIBILITY OF THE CLIENT.

The Desmond Law Office is a Louisville, Kentucky personal injury firm that concentrates in motorcycle wrecks, trucking accidents, and automobile accidents. If you’ve been injured in a car, motorcycle or tractor trailer wreck, contact me on my cell phone, 502-609-7657, for an immediate, free consultation.  Yes, you will talk directly to me, Attorney Jim Desmond.

 

 

I GET IT! I understand that if you have been injured in a car wreck, you don’t know what to do!

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.

This is why you can reach me on my call phone, NOW! 502-609-7657