With the onset of Spring, motorcycles are back on the road in Kentucky. In fact, Kentucky has over 100,000 motorcycles registered. It is estimated that nationwide over 80,000 motorcycle wrecks occur a year. So how does the injured motorcyclist get his or her medical bills paid when Kentucky law only requires that a driver carry at least $25,000 per person in insurance coverage? It is for this reason that motorcycle accidents pose a bigger challenge than the average personal injury claim. This is especially true when you consider the impact of health insurance liens.
Before the motorcycle wreck ever occurs, the smart motorcyclist understands that there is no guarantee under Kentucky law that a driver or a vehicle is truly insured and/or that the at-fault driver has enough insurance coverage to cover the medical bills for the injured motorcyclist. As a result, as soon as that motorcycle hits your driveway, I recommend that you have at least $100,000 per person of uninsured motorist and $100,000 per person of underinsured motorist coverage on your motorcycle insurance policy.
With the way automobile insurance policies are written and because most have exclusions about motorcycles, you cannot rely on your automobile insurance to protect you while riding your motorcycle.
The gist of uninsured motorist coverage and underinsured motorist coverage is that if the at-fault driver does not have insurance coverage or does not have enough insurance coverage to cover the whole value of your personal injury claim, we can use your motorcycle insurance and they will act like they insure the at-fault driver up to however much insurance you purchased.
On this issue, I want to make a point that might be easily overlooked. Your insurance company is going to fight your personal injury claim just as if they insured the at-fault driver. This is not a get rich quick scheme. Rather, the purchase of uninsured and underinsured motorist insurance makes sure that you are protected in the worst -case scenario ( i.e. the at-fault driver had no insurance or your damages far exceed his insurance coverage).
I have dealt with several cases over the years wherein people lost part of a leg from a motorcycle wreck or had multiple surgeries. This legal advice is trying to make sure your savings plan and the financial planning for your household stay on track even though you were injured in a motorcycle accident that was not your fault.
So, let’s jump ahead and assume the motorcycle wreck has occurred. In that situation, what are your options for getting your medical expenses paid. The first and probably best option is to use your health insurance to pay your medical expenses. Nowadays, health insurance carriers assert what is known as a subrogation claim against your personal injury settlement. The simplest definition of such a claim is that the health insurance carrier will pay your medical bills stemming from a car or motorcycle wreck but if you recover money from the at-fault driver, the health insurance carrier has the right to recover the money they paid out towards your medical bills from your personal injury settlement. They assert this right by using “health insurance liens.”
The problem with these health insurance liens is that they invade a personal injury settlement, thereby reducing your net settlement. Health plans claim that they have superior rights to everyone, including the injured victim. (This is why choosing a good personal injury lawyer is so important. A good personal injury lawyer maximizes the amounts he can recover for his client with his right hand while reducing the deductions from the personal injury settlement with his left-hand.)
Nevertheless, the positive aspect of health insurance is that the health insurance carrier has contracts with hospitals and doctors that can reduce your medical bills. For example, I just dealt with a case last week wherein Anthem paid a hospital $2,800 to satisfy a $16,500 bill. Anthem has a right to recover the $2,800 they spent, not the full value of the medical bill. In effect, the reduction provided by health insurance contracts allow you, the injured motorcyclist, to stretch a dollar bill to cover more of the incurred expenses from a motorcycle wreck.
The above-described Anthem illustration also points out one of the ways in which Kentucky law is unfair to motorcyclists. Kentucky is what is called a no-fault state. The simplest description of Kentucky’s no-fault laws is that the insurance company for the vehicle you occupy automatically covers your medical bills and lost wages, up to a $10,000 limit.
For example, if you’re standing still at a red light and hit in the rear-end by a drunk driver, your own car insurance is going to be the no-fault carrier, even though you did nothing to cause this car wreck, and once you are done treating, that no-fault carrier will go against the insurance company for the drunk driver to recover the medical expenses paid on your behalf.
Kentucky law goes on to say that in exchange for this right to recover these no-fault benefits, the injured victim gives up the right to recover the first $10,000 of medical expenses and lost wages and it becomes the right of the no-fault carrier. If you don’t believe me, look up K.R.S. 304.39-060. This is the statute that transfers those rights to the no-fault carrier. Personal injury lawyers refer to this as the abolition of tort liability.
The problem for motorcyclist operators is that Kentucky law acts like your motorcycle was uninsured and because of the aforementioned “abolition of tort liability”, does not allow you, a motorcycle operator, to recover the first $10,000 of his medical bills or lost wages.
K.R.S. 304.39-040 states that a motorcycle operator or passenger is not entitled to recover no-fault benefits unless option no-fault coverage was purchased. Since no-fault coverage on a motorcycle tends to be rather expensive, most motorcycle owners don’t purchase no-fault coverage. As a result, KRS 304.39-060, the statute about the abolition of tort liability, still applies and the motorcycle operator cannot recover the first $10,000 of his medical expenses from the at-fault driver even though he did nothing to cause the motorcycle accident. In contrast, while a motorcycle passenger is not entitled to no-fault coverage, he or she can recover the first $10,000 of their medical expenses from the at-fault driver because KRS 304.39-060(2)(c) carves out an exception for the motorcycle passenger.
For the motorcyclist, to get around this “abolition of tort liability penalty” has to either purchase the optional no-fault coverage for his motorcycle or use his health insurance to pay his medical expenses. On the positive side, this abolition of tort liability is controlled by the total charge of the medical expense, not the reduced rate paid by the health insurance. In the Anthem example above, the motorcyclist could recover $6,500 of the emergency room bill (i.e. $16,500 less the $10,000 that could have been paid under no-fault insurance) even though Anthem satisfied that charge for $2,800.
One final point on this issue and how Kentucky law penalizes motorcycle operators. The Kentucky Motor Vehicle Reparations Act sets out the law in regard to no-fault benefits. The Kentucky Legislature recently amended KRS 304.39-241 to allow no-fault benefits to be directed towards a health plan’s subrogation claim. Insurance companies rely on this as another way to ensure payment of their health insurance liens.
To use the Anthem illustration again that arose from a car accident, I reserved the majority of my client’s no-fault benefits and directed the no-fault carrier to satisfy Anthem’s subrogation claim by paying them part of my client’s no-fault benefits; and in doing so, I stretched a dollar bill to put more money in my client’s pocket.
If the hospital for this car wreck had submitted that $16,500 emergency room charge to the no-fault carrier, they would have recovered $10,000 from my client’s no-fault carrier and my client would still have owed them another $6,500. Instead, Anthem reduced that charge to $2,800 making it so that the hospital was not owed any money, the health insurance lien was satisfied out of the no-fault benefits and my client had $7,200 remaining ($10,000 of no-fault benefits less the $2,800 paid to the health plan) in no-fault coverage to go towards her other medical expenses. The obvious point being that since a motorcycle operator is not entitled to no-fault coverage unless that have purchased optional no-fault benefits, a motorcycle operator cannot use KRS 304.39-241 to satisfy a health insurance subrogation claim.
What does all this mean for a motorcycle rider involved in a serious accident in Kentucky? Have at least $100,000 per person of uninsured and underinsure motorist coverage on your motorcycle insurance and make sure you and your passengers both have health insurance to cover your medical expenses, including health insurance liens. With these tools, there is a good chance we can make sure you are not left holding the bag for a bunch of medical expenses that were caused by a negligent driver.