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Criminal law versus Civil Law In regard to Car Accidents

Remember that there is criminal law and civil law. Criminal law means the State can assert fines against you and possible make you serve jail time. Civil law means that you, the injured victim, have the right to recover money damages from the party that was negligent if their negligence injured you.  Yes, that is an oversimplification but accurate for now.
Civil law controls the facts of the car wreck and the claim for pain and suffering. The fact that your driver’s license may have been revoked or suspended at the time of the car wreck does not make automatically at fault for causing the car wreck.  The real questions for a car wreck in Kentucky are: 1) who was at fault for the car wreck; 2) who was injured in the car accident and; 3) what insurance policies can we recover from.  A criminal citation, such as for having a suspended license, does not automatically change these questions or whose negligence caused the car accident.  While it may play a role in the amounts recovered, it does not automatically prevent a claim for pain and suffering.  Below is part of an answer I posted on Avvo.com wherein this issue was raised:
 
For the moment, ignore your license or lack of license issue. For a civil case, you have to show negligence on the other driver. The lack of the license does not affect the pain and suffering claim for the motor vehicle wreck. Your first step, if the Officer gave you a report number, start trying to get the accident report through buycrash.com. If you were injured, go ahead and see a doctor or hospital. The no-fault part of the State refers to the fact that your insurance company will be responsible for the first $10,000 of your medical bills even though they can, at a later date, recover them back from the other driver. If the Officer issued a citation for the lack for driver’s license, that falls under criminal law and will not affect your pain and suffering, or property damage claim, from the wreck.

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Does a Slam Dunk Case Need an Attorney?

Don't be surprised if it's not really a slam dunk case.Someone posted a great question on a message-board I belong to.  Essentially, the person felt that they had a slam dunk case against their own uninsured motorist coverage.  For this reason, they questioned whether they should keep their personal injury attorney or fire him and save the contingency fee.   I loved the question because it brings up so many areas of the law wherein misconceptions are rampant.

In the legal field, a slam dunk case is rare and not what you want.

Last year I had a slam dunk case wherein my client, a pedestrian, was hit by a car driven by a teenager who was texting at the time.  My client was hospitalized for a significant amount of time so his medical expenses in the first 30 days following the car wreck were more than twice the insurance coverage on the teenager.  So yes, that was a slam dunk in the sense that the insurance company did not think twice before paying offering their policy limits.  Why?  An insurance company can be held liable for more than the coverage purchased by their insured only in rare circumstances.

One of those circumstances, that’s pretty clear cut in nature, is when the insurance company exposes their insured to a Judgment in excess of the insurance coverage when they had a reasonable chance to settle the claim within the policy limits.

So how does a good personal injury lawyer earn their attorney’s fee in such a slam dunk case?  First, they look for other insurance coverage. I did not handle the case but I consulted on a case involving a wrongful death wherein it appeared another teenage driver was insured for only $25,000 but ultimately, a seven figure insurance policy was discovered through another parent’s insurance policy.  So in that case, another liability policy was discovered because the injury attorney was diligent and did not rush to settle his client’s personal injury claim.

Never Rush to Settle Your Slam Dunk Case

To put it simply, insurance coverage, depending upon the kind of insurance, can exist because someone else also owns the car, someone was in the scope of employment when the wreck occurred or because someone is a resident relative living in that household.  A good personal injury lawyer does his best to track down all the different layers of insurance coverage that could apply and compensate his injured client; whether it be an additional liability policy or a policy of underinsured motorist coverage.

Also, an injured party needs to understand that they are held to the same legal requirements, whether they have an attorney or represent themselves, and ignorance of the law is not a valid defense.  So if you rush to settle your claim and  once you sign a bodily injury release, your claim is done.

As I tell all my clients, it does not matter how severe your injury was or when it was discovered, you sign that release your personal injury claim is resolved completely. 

Strict Rules Apply for Underinsured Motorist Claims

Further, the requirements of pursuing an underinsured motorist claim, against your own company, are laid out in the statutes and must be followed to the letter. I am referring to the fact that the law sets up a required, legal procedure that must be followed wherein your own automobile insurance company must receive proper notice, according to the strict requirements of the statute, anytime you wish to accept a policy limits offer from an at-fault party.  If you don’t follow the procedure, your claim for underinsured motorist coverage could be barred.

Attorneys Are Experienced Negotiators

Lastly, what good does it do you if a lawyer recovers $100,000 for you but with health insurance liens, attorney’s fees and costs eat up the majority of your personal injury settlement; obviously, the answer is none!

A good injury lawyer tries to maximize a client’s personal injury settlement with his right hand while lowering the deductions from that settlement with his left hand.

On the “slam dunk case” described above, I was able to negotiate a waiver of the health insurance lien. A health insurance lien is basically wherein your health insurance carrier says they have the right to recover from your injury settlement the medical expenses they paid on your behalf; because you recovered those medical expenses from another source, usually the at-fault party.

However, even if I had not been able to obtain a complete waiver of the health insurance lien, I needed to do my best to lower the amount the health insurance would accept and reduce any other liens/charges that might reduce my client’s net recovery.  And yes, lowering an attorney’s fee is one way that can occur as well.  In that case, I did that. Why? Because the client has used me before, given my name out to family members and even did a review for me on Google.

My point is you should have a mutually beneficial relationship with your injury lawyer and not be just one of a multitude of cases that they are handling in multiple states.

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Worst-Case Scenario Car Wreck

TV Lawyer Worst-Case ScenarioIt is not surprising that personal injury lawyers have a less than perfect reputation. Every time you turn a television on, you see television commercials promising “big checks” or ”making the other guy pay.”  However, those ridiculous slogans are not really what personal injury law is all about.

The legal system only allows you to recover money for the damages you have suffered because of someone else’s negligence.  If you think about it, a truly fair system would require that the at-fault driver help you get your car fixed, pay the cost of replacing your vehicle and not just what it was worth and assist you in getting to your doctor’s appointments.

However, if personal injury law required those things, the system would be very similar to the laws governing divorce and family law.  There would be a lot of fighting among strangers over who did what, why an appointment was reasonable or not and a lot of excuses as to why somebody failed to do what the Court ordered them to do.

Protect Yourself From A Flawed, Legal System

You have to plan for the absolute worst-case scenario and purchase, on your own car insurance, the coverage you need to handle a car wreck.

Assume for instance your vehicle was hit by an unemployed, drunk driver that resulted in you being hospitalized from a car wreck.  The drunk driver had no insurance, was driving another person’s vehicle that was also uninsured.  Finally, you don’t have health insurance to pay your medical expenses.  This sounds pretty bleak.

Think about the true effects of this worst-case scenario.  The person that hit you has no insurance to pay for the damages they caused. If you get any money out of them at all, it is likely to be small amounts generated over prolonged litigation. Further, you did not have health insurance so doctors, hospitals and chiropractors are hesitant to treat you because they don’t know if you will be able to pay your medical bills.

The common misconception about personal injury law is that the other guy will be responsible for paying my medical bills and as illustrated above.  This idea is 110% wrong.

Further, when a car wreck happens, it is like a photograph was taken. You can’t remove anything from that photograph and you can’t put anything in it.  If you don’t have the right coverage on your own automobile insurance before the car wreck occurs, you are out of luck!

So What Could You Do?

On your own car or motorcycle insurance, without any regard to what insurance the other driver may or may not have, carry at least $100,000 per person of uninsured motorist coverage, $100,000 of underinsured motorist coverage and $30,000 of no-fault or med-pay coverage.

This legal advice applies from the first day you drive a motor vehicle. Further, even though motor vehicle law differs by states, it really does apply no matter which state your vehicle may be licensed in.  Ask your local insurance agent whether they agree with my advice but I would guess 90% of them will.

So yes, tell every member of your family and your extended family, wherever they may live, about this advice in regard to car insurance and/or any motor vehicle they may own, including motorcycles.

But It’s Too Expensive

While I understand that car insurance is costly, I refuse to lower my uninsured and underinsured motorist coverage in an effort to save on my car insurance premiums.  My 17 year-old daughter just got added to my insurance policy and it added about $2,200 a year to the cost of my insurance.  Nevertheless, I want to know that if the worst-case scenario should ever occur, I have the means of obtaining medical treatment for my family and recovering my out of pocket expenses for permanent treatment for medical conditions that I thought would never occur.

While I understand that you may think the worst-case scenario won’t happen to you, remember that my law practice is a small, boutique firm that encounters uninsured and underinsured motorists on a daily basis.

Consider The Statistics

According to the Insurance Institute for Highway Safety, about 11.5% of Kentucky motorists and 16.7% of Indiana motorists are driving around uninsured at any given time.

Also, while Kentucky and Indiana require a motor vehicle to carry at least $25,000 per person of liability coverage, some states, Florida for example, require as little as $10,000 of liability coverage per person.  Either way, how can $10,000 or $25,000 cover medical bills of $30,000 from a surgery caused by the negligence of another driver much less your lost wages, co-pays or insurance deductibles?

If you ever read one of my previous blogs, you might say that you have heard this advice from me before and it would be true. However, right now, I am dealing with:

  • 3 cases wherein the at-fault drivers were completely uninsured
  • 2 cases wherein I am searching for underinsured motorist coverage because the client’s Emergency Room treatment alone exceeded $25,000
  • 1 case wherein an unexpected surgery occurred and luckily underinsured motorist coverage was on my client’s policy
  • 1 case wherein the client did not recover the full value of her claim because the at-fault driver injured multiple people and there was not any underinsured motorist coverage to pursue.

My point being the worst-case scenario happens every day in both Indiana and Kentucky and saving a couple hundred bucks on car insurance now, can cost you thousands later on.

 

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Get a Police Report for your Louisville Car Wreck

Police Report for Louisville Car Wreck

With the snowy weather and icy conditions, I figured it was time to discuss some general principles in regard to handling car wrecks and personal injury claims.

First, as I have preached before, please make sure all your vehicles have at least $100,000 per person of uninsured and underinsured motorist coverage on any automobile insurance policies.   I regularly deal with injury claims wherein the other driver had no insurance or not enough insurance to cover my client’s medical expenses much less the full value of the personal injury claim.

Second, please understand that there are no slam-dunks when it comes to personal injury law and car wrecks.  Yes, generally speaking, if someone hits your vehicle in the rear-end or they were turning left in front of you, they may be at considered at fault for the wreck.

To use a legal analysis, they were negligent in causing the wreck because they breached a legal duty (e.g. following your vehicle at an unsafe distance), that breach resulted in your damages.  However, the majority of injury law, until a jury reaches its final verdict, is arguments. So if you have a case wherein an insurance company has accepted all liability for a car wreck, count your blessings because they could just as easily argue that you were 10 or 20% at fault for driving too fast or because their insured cleared most of the intersection.

Third, unless you obtain a driver’s insurance company and contact information at the scene of the car wreck, we are pretty much helpless until we can obtain the police report. Without the police report, we don’t know the location of the wreck, the contact information of the at-fault driver and with which company they appear to be insured.  So as a result, as a general rule, it is worth waiting for the police to investigate the car accident.  Recall that buycrash.com is a great way to check for the police report and to be able to print it up on your computer.   However, on a car wreck that happened this week involving several trauma victims, I have had to contact LMPD directly to obtain some additional information. In doing so, LMPD shared the following information that might also be of assistance to you:

It can normally take up to 5 business days to be completed. . . With the corrected report number, you should be able to pull it up on buycrash (once it is ready).  The other two ways to get the report once it is ready is as follows:

You can mail a request along with  a self-addressed, stamped envelope and $5.00 cash or check to:

LMPD Records

701 W Ormsby Ave, Suite 001

Louisville, KY 40203

You can pick up a copy at the above address. The hours of operation are Monday and Thursday 8-5, Tuesday, Wednesday and Friday 8-4.  Reports are $5.

Lastly, get checked out by doctor, chiropractor, hospital or an immediate care center within the first couple of days after a car wreck.  Not everyone wants to make a personal injury claim from a car wreck and that is okay.  However, as your personal injury lawyer, the other side of the coin is that I don’t want the veracity of your injuries and pains questioned.  The longer  you wait to seek treatment the more an insurance company may question whether your injuries stem from the car wreck or some other incident.

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Reflex Sympathetic Dystrophy (RSD) Pain

RSD pain affects the nerves

Reflex Sympathetic Dystrophy (RSD), also referred to as Complex Regional Pain Syndrome (CRPS), is a condition that can be characterized by a variety of symptoms including pain, frequently a burning type of pain, tenderness, swelling of the area or extremity, sweating, flushing, warmth and/or coolness of the area, discoloration, and in some cases shiny skin.

How RSD develops is not well understood and some would say is unknown, however, it is believed to be caused by an irritation of nerve tissue or abnormal excitation of nerve tissue, which causes abnormal impulses along the nerves which in turn affects blood vessels and skin in the area.  This seems to involve the involuntary nervous system, the peripheral nerves, and the brain. The peripheral nervous system is a network of 43 pairs of motor and sensory nerves that connect the brain and spinal cord to the entire human body.

Causes of RSD can be from a wide range of triggers including injury, surgery, shingles, heart disease, degenerative arthritis, stroke or other diseases of the brain, nerve entrapment or irritation such as in carpal tunnel syndrome, joint problems, cancer, specifically breast cancer, and certain drugs such as those used to treat tuberculosis and barbiturates, which act on the central nervous system.

Trauma From Car Wreck Injuries Could Trigger RSD Symptoms

RSD can come on suddenly or slowly over time.  There are four stages of RSD/CRPS including the acute phase (stage 1), the dystrophic phase (stage 2), the atrophic phase (stage 3), and stage 4, which most patient’s never advance to and where there is involvement of the inner organs.  The acute phase can last 3-6 months and often involves burning, flushing, blanching, sweating, swelling, pain, and tenderness.  Patchy thinning of bone can be seen on x-ray in this stage.  The dystrophic phase can also last 3-6 months and is marked by early skin changes including shiny, thickened skin and contractures (a shortening or hardening of muscles, tendons or other tissue).  This stage is marked by persistent pain with a lesser degree of swelling and flushing.  The atrophic phase can be longstanding and involves loss of motion and function of the involved area with contracture and thinning of the fatty layers under the skin.  Often during this stage significant osteoporosis can be seen on x-ray.

Since there are few clinical tests that can detect RSD/CRPS, it is usually diagnosed based on the symptoms described above.  Treatment for RSD can range from cool moist applications to the area to relieve the burning or stinging sensation.  Exercise can help prevent contracture.

Medications may be helpful in reducing pain and swelling.  For more persistent symptoms, cortisone (Prednisone) starting with high doses and gradually tapering may be prescribed.  Medications such as amitriptyline (Elavil), which is used for nerve pain and depression, pregabalin (Lyrica) which is used to treat nerve and muscle pain, and clonidine (Catapres) which is a medication most often prescribed to treat high blood pressure, however, has shown benefits in treating CRPS involving chronic arm or leg pain developed after an injury, surgery, stroke or heart attack.

More advanced forms of treatment would include nerve blocks, implantable pain pumps, spinal cord stimulators, and even surgery to interrupted the nerves known as surgical sympathectomy.

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The Kentucky Uninsured Driver Loophole

Kentucky uninsured driver loophole

The legal requirement, per Kentucky law, that your car must have insurance coverage.  Anyone who has read one of my blogs or has visited my website, www.AttorneyDesmond.com, has probably heard me preach about having at least $100,000 per of uninsured motorist coverage on both their automobile insurance and their motorcycle insurance.  Nevertheless, it appears there’s a Kentucky uninsured driver loophole.

My blogs tell true stories of how a person injured in a car wreck in Kentucky, through no fault of their own and caused entirely by someone else’s negligence, ultimately discovered that the at-fault driver failed to have his or her vehicle properly insured.  Consequently, my injured clients have to rely on their own automobile or motorcycle insurance to cover their medical bills and their claim for pain and suffering.

One of my most recent blogs dealt with the issue of suing an uninsured driver for my client’s pain and suffering and whether the potential recovery justified the cost of litigation.   Several readers of that post raised the issue of how is it someone can be uninsured and still be on the road?  Since personal injury law usually addresses the after-effect of someone not having their vehicle properly insured, I had to research some of the Kentucky Revised Statutes to find the answers.  Unfortunately, from the information I am gathering, it appears that Kentucky law is totally inadequate to address the issue.  I believe this creates a Kentucky uninsured driver loophole.

Most of the motor vehicle law for Kentucky is contained in what is known as the Kentucky Motor Vehicle Reparations Act.  This Act can pretty much be found in Section 304.39 et. seq. of the Kentucky Revised Statutes.  KRS 304.39-080 (5) of the Kentucky Motor Vehicle Reparations Act states that if you own or operate a vehicle registered in Kentucky, you must have at least the minimum amount of liability insurance which is set out in KRS 304.39-110; which is an insurance policy with a single limit of $60,000 or limits of $25,000 per person, $50,000 per accident and $10,000 in property damage.

If you fail to have your vehicle insured, the registration for your vehicle will be revoked, see KRS 304.39-080(5) and KRS 304.39-090, pursuant to KRS 186A.040 and you will be subject to the criminal penalties laid out in KRS 304.39-060.

So, when we are pulled over by a police officer, that officer will has a computer system in his vehicle, known as a Mobile Data Terminal (“MDT”), which is linked to a database referred to as AVIS, Automated Vehicle Information System.  This database maintains title, registration, and insurance information for all vehicles, boats and trailers registered in Kentucky.

When an insurance company cancels or does not renew an automobile insurance policy, it is required to provide the Kentucky Department of Vehicle Regulation with the VIN number of the vehicle. If that VIN number does not appear in AVIS for two consecutive months, the Department has to send the insured a statement that they have to show proof of insurance within 30 days or the registration of the vehicle will be revoked. See KRS 186A.040.

This is the part the concerns me; the only proactive step taken by the State of Kentucky when it is informed that a vehicle is not properly insured, according to the AVIS system, is to revoke the registration of that vehicle! 

The County Attorney is not even informed of this revocation of the registration unless that registration has been revoked 3 times within a 12 month period.  See KRS 186A.040(4)(b).  When State Representative Ron Crimm attempted to amend this statute, through HB 337 in 2010, so that the County Attorney would prosecute the first time the vehicle’s registration was revoked. The bill was shot down in part because the Kentucky County Attorney’s Association opined that there would be hundreds of more prosecutions thereby resulting in a significant financial burden to County Attorneys and local jails for the housing of inmates.

Risks of the Kentucky Uninsured Driver Loophole

So logically, according to the current status of Kentucky Motor Vehicle law, I can stop paying my for my car insurance and not until 90 days later, (two months of no insurance showing on my vehicle through AVIS and 30 days notice required by KRS 186A.040), will the registration for my vehicle be revoked. Thereafter, unless I am pulled over and issued a citation, I won’t be subject to criminal prosecution for no insurance so I can renew my license plate just before it expires and effectively save money by not having to pay for car insurance for approximately 9 months.  To me, this is a dangerous Kentucky uninsured driver loophole.

Please understand that I am in no way advocating that someone operate a motor vehicle without car insurance.

If you do so, you can be subject to multiple claims from other driver’s for your negligence and even if you were not at fault for the car wreck, you cannot recover the first $10,000 of your medical expenses and lost wages.  See KRS 304.39.060.  However, I am shocked at what appears to be a big hole in criminal law in regard to Kentucky drivers who fail to carry the proper insurance.  Again, as I have said hundreds of times before, there is nothing in Kentucky law that guarantees the at-fault driver truly has liability insurance to cover the damages he causes through in a car wreck.

I am not a politician and nor do I have any desire to be.  In fact, out of all my blogs, this one has tended to violate one of my own rules and been overly complicated, by citing statutes, rather than simply addressing the needs of the typical Kentucky driver. However, I thought it was important that you, the consumer, could fact check my sources.

Very simply, the safety of you and your family, while operating a vehicle on Kentucky roadways, needs to be your primary concern. Even if the Kentucky Legislature amended the law so that an uninsured driver would be prosecuted sooner, there is still no guarantee in the law that he could be fully responsible for the injuries and damages he might inflict through his negligence.

My legal advice is remains the same.  Rather than which personal injury lawyer you choose or which insurance is company is “best”, make sure each and every motorcycle or car insurance policy you have has at least $100,000 per person of uninsured and underinsured motorist coverage.

Through the analysis described above, there is no guarantee that the other driver truly has car insurance and even if he does, it can be as little as $25,000 per person. Therefore, you need to protect yourself before the car wreck by putting on your own automobile insurance policy the types of insurance you may need should you be involved in a serious car wreck.  Don’t be a victim of this Kentucky uninsured driver loophole.

 

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Supreme Court on Motorcycle Insurance

Motorcycle insurance is importantThink you have the right motorcycle insurance coverage? According to the Kentucky State Police in 2016, they were 1,841 wrecks involving motorcycles.  While this is only a small percentage of the total number of car wrecks in Kentucky in 2016.  I try to give a lot of legal advice about motorcycle accidents as they tend to involve the most serious injuries.  As a result, they illustrate the shortcomings of motor vehicle law.

Let’s be clear about an overall, huge principle in regard to motor vehicle law.  The law is such that an at-fault driver is only required to have $25,000 in insurance coverage.  Therefore, regardless of the severity of your injuries and/or which personal injury attorney you may hire, there is no guarantee under Kentucky or Indiana law that the at-fault driver will have enough insurance to fully compensate you for any damages he or she may cause.  Motorcycle accidents tend to be the area of the law wherein this concept is seen the most.

Motorcycle wrecks tend to involve severe injuries as a motorcyclist is exposed to the severity of the impact from the car.  As I have preached on multiple occasions, the way to protect yourself, as a motorcyclist, is to have at least $100,000 per person of underinsured and uninsured motorist coverage on your motorcycle insurance policy. 

Maybe if your injuries are severe enough we can make your automobile insurance cover your damages for your motorcycle wreck, as well. However, insurance companies are allowed to write exclusions, such as this, into their policies and relying only on your automobile insurance for such coverage, instead of adding it to your motorcycle insurance policy as well, is a risk you don’t want to take.

On this issue, let me quote Kentucky Motor Vehicle Insurance Law with Forms by Robert D. Monfort (p. 87, 2014-2015 Edition) that states:

Motor vehicle policies sometimes contain language excluding uinsured motorist coverage while the injured person is a rider or passenger on a motorcycle. This language may take the form of an actual exclusion, or may come into operation due to a policy definition limiting “automobile” or “car” to four-wheeled vehicles. This is exclusion is reasonable, on the grounds that motorcycle riders are a high risk group who make a conscious decision to limit their coverage by the act of electing to ride a motorcycle.

Professor Monfort cites the case of State Farm Mut. Auto Ins. Co. v. Christian, 555 S.W.2d 571 (KY. 1977) that also relies on and references the case of Preferred Risk Mut. Ins. Co. v. Oliver, 551 S.W.2d 574 (KY. 1977).

Now, if I did not lose you just now with a lot of legal-ease, this is the interesting part.  The State Farm case, supra, is a Kentucky Supreme Court case that stated the following in regard to motorcycles and motorcycle insurance:

Thus, the question becomes one of whether the exclusion of the motorcycle from coverage is reasonable, an issue we recently determined in Preferred Risk Mut. Ins. Co. v. Oliver, supra. In that case we said:

“It is common knowledge that motorcycle riders, as a class, are among the highest risk groups conceivable. Motorcycles offer no protection whatsoever from the front, back, sides or top, and leave the rider exposed to every peril of highway travel. The exclusion of such a class from coverage is clearly reasonable where, as here, the assured has the option of avoiding the excluded peril. An assured has no choice in selecting those uninsured motorists who may injure him, but he certainly does elect to ride a motorcycle. This volitional act triggers the exclusion and he accepts the consequences.”

The point being that per the exact words of the Kentucky Supreme Court, Kentucky law considers motorcycles to be a dangerous vehicle and therefore, an insurance company can reasonably exclude coverage for motorcycle accidents from automobile insurance policies.

The lesson for you, as a consumer, is that even though you only use your motorcycle a couple of months a year, you have to make sure your motorcycle insurance policy has the right kind of insurance coverage on it regardless of the cost.  The case law and statutes are making it clear. Kentucky law does not favor the rights of motorcyclists.

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Filing a Lawsuit Against an Uninsured Driver

Filing a Lawsuit against an uninsured driver

I filed a lawsuit against what appears to be an uninsured driver this weekend.  The Jefferson County Clerk has set it up so I can file a Complaint, the document that starts a lawsuit electronically from my computer.  However, the filing fee for a lawsuit tends to cost me about $198 for each lawsuit filed with the Jefferson Circuit Court.  The question is did I waste my money filing a lawsuit against an uninsured driver?

According to the Insurance Information Institute, about 11.5% of Kentucky motorists were, in violation of Kentucky, driving without insurance on their automobile.  For Indiana, the rate was closer to 16.7%.  https://www.iii.org/fact-statistic/facts-statistics-uninsured-motorists.  So when a car accident or a motorcycle wreck occurs, one of the first questions a personal injury attorney has to deal with is whether the at-fault driver, or the vehicle they were operating, was insured.

The easiest way to find insurance coverage on an at-fault driver is hope that the police report has the proper insurance company listed. If that does not work, I will typically run the license plate of the at-fault vehicle with the Jefferson County Clerk.  The Clerk can provide me with the insurance company and policy number the last time that vehicle was registered.

As a last resort, I will send the driver and owner of the at-fault vehicle a letter asking for their insurance information and threatening to file a lawsuit if they do not cooperate. The problem is filing a lawsuit against an uninsured driver may not be worth the time and expense involved.

Recall that a Judgment is really just a piece of paper that says someone owes you money.  So, in essence, a Judgment against someone can be worthless if they have no assets to collect it against or if they can bankrupt that Judgment by filing Bankruptcy proceedings.   So for the personal injury suits I filed, it could be that we won’t even recover the filing fee much less the value of the client’s personal injury claim.  Granted, in Kentucky, K.R.S. 187.410 allows me to revoke someone’s driving privileges if the unpaid Judgment relates stems from a car wreck.  However, if the at-fault driver files Bankruptcy, the suspension, and my client’s Judgment, is dissolved.

Nevertheless, I believe this instance justified a personal injury lawsuit. My injured client had an initial Emergency Room bill in excess of $19,000 and he may not have had uninsured motorist coverage either.  As a result, unless I can find insurance coverage on the at-fault driver, my client really has no source to recover his pain and suffering claim from.

However, in this instance, my first goal is not to recover the value of his personal injury but rather, to keep my client from owing a large amount of medical expenses for a car wreck that was not his fault.;  to do that, I’m going against the odds and hoping that filing a lawsuit against an uninsured driver will discover insurance coverage not readily apparent.

So what’s my fallback position(s) for everything?  If all else fails, I will have to use health insurance to pay the medical bills.  My client appears to be qualified for Medicaid after the car wreck occurred.  While Medicaid will have a right to recover whatever medical expenses they pay out through what is known as subrogation claim or a right of reimbursement, they can only recover the amount that is actually paid to satisfy the $19,000 medical expense.  My hope is that the amount Medicaid seeks to recover will be about one-third of the $19,000 expense. This way, I can reserve my client’s no-fault coverage of $10,000 and use that no-fault, a.k.a. as PIP coverage, to satisfy Medicaid’s subrogation claim.

Yes, in this worst-case scenario, regardless of the personal injury lawsuit, the client can not recover any more towards the value of his personal injury because the at-fault drive was uninsured and he did not purchase uninsured motorist coverage before the car wreck.  However, in Kentucky, 99% of the time you are entitled to no-fault benefits of at least $10,000 as long as the car wreck happened in Kentucky and you were not driving a vehicle you owned that was uninsured.

As a result, this no-fault coverage may be the only insurance coverage that exists for this car wreck. Consequently, we have to stretch that $10,000 in no-fault coverage in every way possible so that the client, while uncompensated for his personal injury claim, will not owe medical bills for a car wreck that he did not cause.

At the end of the day, filing a lawsuit against an uninsured driver at least provides valuable information to determine my client’s best options.

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Seat Belt Safety Laws

seat belt safety starts with wearing a seat belt

One of the leading causes of death among those between the ages of 1 and 54 in the United States is motor vehicle crashes, and one of the most effective ways to reduce injuries and save lives is the use of a seat belt.

All 50 states have some form of seat belt law, be it a primary offense in which a police officer can pull someone over for him/her or passengers not being properly restrained or a secondary offense in which an officer cannot pull someone over solely for the offense of not wearing a seat belt, however, if pulled over for another citable violation and unrestrained, the officer can issue a ticket for not wearing a seat belt.

Currently in 18 of the 50 states, the seat belt law is considered a secondary offense with the exception of Colorado, which although is a secondary offense state for adults, children not properly restrained is a primary offense with a much larger fine.  New Hampshire is the only state not requiring adults to wear seat belts, however, they do have a primary child passenger safety law covering anyone under 18.  All other states have a mandatory seat belt use law for drivers and front seat passengers.

We’ve all met that person who knew of someone whose life was spared because they were NOT wearing a seat belt, however, the chances of this happening is slim to say the least! One study from 2002 estimated that 4,200 lives could be saved each year if 90% of the population in the United States wore seat belts.  There are rare instances when a seat belt can cause harm.

A friend of mine who is an ICU nurse even had a pediatric patient with a liver laceration following an automobile accident with a lap belt, however, this was not supported by a shoulder strap and injuries sustained from wearing a seat belt are generally surface bruises and/or abrasions and significantly far less severe than injuries that may have been sustained from not wearing a seat belt.

According to the National Highway Traffic Safety Administration (NHTSA), seat belts have saved roughly 300,000 lives in the United States since 1975. 

Seat belts were invented in the mid-19th century by an English engineer named George Cayley, however, the first U.S. patent was granted to Edward Claghorn of New York on February 10, 1885.  Motor Vehicle Safety Standard enacted a federal law on January 1, 1968 that required all vehicles with the exception of buses to be fitted with seat belts in all designated seating positions.  The world’s first seat belt law was in 1970 in Victoria, Australia, however, in the United States the first state to enact primary enforcement seat belt laws was New York in 1984.  By July of 2010, 31 states including the District of Columbia had primary seat belt use laws while 18 states had secondary enforcement laws.

One study found that the use of seat belts in primary belt law states averaged 88% and was less in states with weaker enforcement laws.  Studies have also been conducted by the Centers for Disease Control and Prevention and have found increased belt usage in primary belt law states and decreased fatalities in these states as well.  Overall, serious injuries and fatalities are reduced by wearing a seat belt, and unless you are an adult in New Hampshire it is the law in one form or another so buckle up!

This article is provided by the Desmond Law Office, Louisville, Kentucky.  We handle accident cases in both Kentucky and Southern Indiana.

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Louisville Motorcycle Accident Injuries

Louisville motorcycle accident injuries

It can be a dangerous world on two wheels! Motorcycle accident injuries exhibit interesting patterns.  The Center for Disease Control (CDC) studies over 1.2 million people who were treated in emergency rooms across the United States for non-fatal motorcycle related injuries and this is what they found.  Injuries to the legs and feet account for 30% of all non-fatal motorcycle injuries.  Next up were head and neck injuries accounting for 22%.  Third were wounds to the chest, shoulders, and back, next were injuries to the arms and hands, and lastly were injuries to the hips and pelvis.

The Association for the Advancement of Automotive Medicine (AAAM) did a study over a four-year period in the state of Maryland where they tracked injuries related to helmet use and differences in injuries sustained by younger and older riders.  This AAAM study used both hospital discharge records as well as police reports.  This study broke injury locations down into nine different areas including the head, chest, abdomen, spine, neck, face, upper extremities, lower extremities, and external skin, which they ranked by severity.

In the helmet versus no helmet portion of their study, helmeted riders had a fewer severe injuries and a greater number of not as severe injuries. Their overall findings (not addressing the differences in age groups) ranked them as follows:

  • Lower extremities injuries highest in the 55-60% range,
  • Upper extremities in the 48-52% range,
  • Head injuries in the 25-29% range,
  • Face and neck injuries in the 21-25% range,
  • Injuries to the thorax (between the neck and abdomen including the ribs, breastbone, etc.) in the 22-28% range,
  • Injuries to the abdomen in the 19-20% range and finally,
  • Injuries to the spine 10-14%.

This correlates with the CDC findings, however this study did not take into account helmet use.

A study by the World Health Organization (WHO) studied motorcycle accident victims with their findings also correlating with both the CDC and AAAM studies.  Namely, the majority of injuries occurred to the lower limbs with the tibia and fibula bones being the most commonly broken in the lower extremities with the femur being next.  In the upper extremities the radius and ulna were most commonly broken followed by the humerus.

The National Highway Traffic Safety Administration (NHTSA) tracked fatal motorcycle accident data over a 3 year span showing that in all three years studied, motorcyclists not wearing a helmet had fatalities in the 50-52% range while helmeted rider fatalities ranged in all three years right at 35%.

Obviously, head injuries as a result of a motorcycle accident are lower among those riders wearing a helmet.  Among both helmeted and unhelmeted riders, the leading injury accounting for motorcycle crash fatalities is a head injury.

What can we learn from this?  Safety gear greatly reduces severe injuries and fatalities in the case of a motorcycle accident.  One way to remember this is ATGATT which stands for All The Gear, All The Time!  Enjoy your ride, but be safe and protect yourself!