Kentucky Injury Lawyers Blog

If you watch an hour of television these days you are likely to see an advertisement for car insurance.  I know, lawyers are fine ones to talk about advertising.   It is worth noting, though, that we are seeing a shift in how insurance is sold and in the type of products being offered.  Increasingly ads are promoting policies that "keep you legal" or provide "state minimum coverage". You are told that you don't need an agent. You can sign up online, or you can call the 800 number.  There is even an ad that depicts an insurance agent as a middle man just adding to the cost of the transaction.  

An agent is more than a sales person. A good insurance agent will review with you what your needs are and how various policy options will work.  Increasingly I see clients with poor insurance coverage and no understanding of how it works.   The least helpful time to have someone explain your coverage to you is AFTER you have been in a car accident.
The ads don't really explain what it means to have state minimum coverage.  In Kentucky that means that you have $25,000 of liability insurance, which is insurance to pay someone else if you cause a bodily injury or death.  That is what the law requires.  What happens if you hurt someone badly and their claim is worth more than $25,000? You can be responsible for the difference.  Some people are what we call "judgment proof", which means that they have no income, money or property that could be taken to satisfy a judgment.  If you are judgment proof you may be comfortable with minimum liability coverage.  If, on the other hand, you have wages that can be garnished and property that can be seized, you should really think about procuring better coverage to protect your assets and to keep yourself from being embroiled in the litigation of a car accident claim.

A really cheap car insurance policy might include deductibles, including a $1,000 deductible on your no-fault (PIP) coverage.  A no-fault deductible leaves you without coverage on your first $1,000 of wage loss or medical bills, which your health insurance may or may not pick up.  "Insurance for less" may not include uninsured or underinsured motorist coverage, and is unlikely to include collision coverage for damages to your own car.  

In a tough economy people make tough choices and you may not be able to afford the best policy available, but I do recommend that you at least meet with a respected agent and review your options.  Know what you are giving up for every dollar saved.

In an official press release on March 31, United States Vice President Joe Biden, along with Social Security Commissioner Michael J. Astrue, announced that economic recovery payments of $250 would be sent to those who receive Social Security and Supplemental Security Income (SSI) benefits in early May 2009 and will continue through that month.  Beneficiaries will not need to take any action to receive this payment.  It will be sent automatically and will come as a separate payment from the recipient's regular benefits check.

This $250 payment stems from the American Recovery and Reinvestment Act of 2009.  It provides for a one-time payment to adult Social Security beneficiaries, along with SSI recipients, with the exception of those who receive Medicaid in a care facility.  The qualifying factor for an individual to receive this one-time payment is that they must be eligible for Social Security or SSI during November 2008, December 2008 or in January 2009.

This legislation also allows for a payment to Veterans Affairs (VA) and Railroad Retirement Board (RRB) beneficiaries.  However, if those recipients also receive Social Security or SSI, they will only receive the $250 payment one time.  People receiving Social Security or SSI are asked not contact the agency unless they have not received this payment by June 4, 2009.

Placing a loved one in a nursing home can be a very tough decision, followed by the equally tough decision of which home to choose.  Until recently families had little information to work with, relying mostly on observation and advice from other families.  Fortunately, the Center for Medicare/Medicaid services (CMS) now has a rating system for nursing homes.  This five star rating system evaluates nursing homes on quality measures, nursing home staffing, and health inspections.  It also gives an overall rating of the entire nursing home.  
   
You can find the five star ratings for nursing homes by visiting the Medicare website. This site allows you to find ratings for nursing homes by county, state, city, zip code, or name of the nursing home.  A brief review of the nursing homes in western Kentucky shows some five star facilities, but a considerable number of one and two star rated nursing homes as well.  
   
I recommend that families pay particular attention to the rating with regard to staffing.  Low staffing is one of the most common reasons for poor care in nursing homes.  In order to be listed as a five star facility, nursing homes should provide at least 4.08 hours of  combined nurse and nursing assistant care per day per resident.  This calculation was derived from a 2001 government study that identified 4.08 hours as the minimum staffing level required to avoid pressure sores, severe weight loss, infections, and other harm to residents.  
   
The Medicare website provides detailed information on health inspections, staffing ratios, and quality measures in the nursing home.  The website also has a "compare" feature that allows you to do a quick comparison between up to three nursing homes.

While this rating system is an important tool in choosing a nursing home, no one should rely solely upon the ratings.  When choosing a nursing home it is important to make a personal visit.  It is important to observe the conditions of the home, talk with other family members, and read inspection records.  The nursing home ombudsman program may also be a good resource for help in finding the appropriate nursing home for you or your loved one and for support and advice after placement.  For Bowling Green, Kentucky and surrounding areas see www.klaid.org/ombudsman.

Many people have heard of "no-fault" insurance coverage, but find the term confusing. A car accident is almost always somebody's fault. In Kentucky "no-fault" is just a term for a type of auto insurance coverage, also called PIP (Personal Injury Protection) or BRB (Basic Reparation Benefits) that pays for medical bills, wage loss and certain other expenses, immediately after an accident.  Every car or truck insurance policy issued in Kentucky has to include no-fault coverage unless formal steps are taken to waive it, which rarely happens (no-fault is not required coverage for motorcycles).  It is referred to as "no-fault" because, generally speaking, you will get no-fault benefits from the car or truck in which you are a driver or passenger when an accident happens, regardless of who is at fault.  You can even get no-fault benefits in a single vehicle collision that is your own fault.

Of course, if you are hurt in an accident that is not your fault you can still have a claim against the person who caused the wreck (a liability claim). Standard no-fault benefits only cover the first $10,000 of your medical bills and wage loss.  If you have more than $10,000 in medical expenses or lost wages, those damages (losses) are part of your liability claim along with other damages not covered by PIP, such as pain and suffering, future medical expenses, and future impairment of your ability to work.

I always advise my clients that we don't want to present a liability claim for settlement until we know the full extent of their injury and can show all of the expenses and suffering that have been caused.   Whenever possible we wait until a client is at maximum medical improvement (MMI) before pushing for a settlement or presenting the case for trial.  This makes no-fault coverage all the more important because it provides some payments along the way, before the liability claim is resolved.

As you are seeking medical treatment, you can have medical bills submitted directly to your no-fault carrier.  If you are missing work due to your injury the standard no-fault policy will pay up to $200 a week for wages.  You have the right to designate whether you want to reserve your benefits to pay wage loss or have them applied to medical expenses.  

While it is the general rule that no-fault coverage comes from the vehicle you are in when the accident happens, there are other policies that might provide this coverage to you if you are hit as a pedestrian or injured while in an uninsured car or truck. Do not assume that there are no benefits available until you have spoken with a lawyer.

On February 27, 2009 the Kentucky Court of Appeals issued a ruling that should be taken into consideration in any case that involves both workers' compensation and automobile negligence.  The case,  State Farm Mutual Automobile Insurance Company v. Carlene Susher, as Administratix of the Estate of Ronald Slusher, Deceased, concerns whether a person can have both a workers' compensation claim and a claim for underinsured or motorist benefits when the at-fault party is a co-worker.  

In this case a coal truck driver, Donald Slusher, was killed when a co-worker's truck rolled into the building he was occupying. An investigation by the Mine Safety and Health Administration (MSHA) determined that the accident was caused because the coworker negligently failed to apply the parking break before exiting the truck. The victim's estate received worker's compensation benefits.  The estate also claimed benefits under the UM (uninsured motorist) and/or UIM (underinsured motorist) coverage purchased by the victim on his own personal vehicle. One is generally entitled to benefits under a UM policy when the at-fault driver has no insurance and to UIM benefits if the at-fault driver has insufficient insurance.

State Farm moved to dismiss the case because the victim did not have an automobile negligence claim against the co-worker.  The victim did not have a claim against the co-worker because, generally, if you are covered by workers' compensation insurance the only claim you can bring against your employer or a co-worker is under the workers' compensation system (See KRS 342.690).  The co-workers truck was insured by Progressive and that policy did not apply because of this "exclusive remedy" rule.

The court first examined the language of the State Farm policy and found that the terms were ambiguous in that State Farm established coverage when one is "legally entitled to collect from the driver of an uninsured motor vehicle".  The court held that the negligence of the co-worker was stipulated and the damages exceeded the workers' compensation recovery. Basically, the workers' compensation plan rendered the at-fault party underinsured.  The Court also applied the "reasonable expectations" test and held that a person who purchases additional coverage has a reasonable expectation that he will be additionally compensated under his own insurance policy if the compensation from insurance sources is not adequate.  

One of the most important reasons to secure legal counsel after an accident is to make sure that all available coverage is sought.  As the Susher case illustrates, applicable coverage is not always obvious and you cannot count on the insurance company to provide the correct and final answer as to whether your policy applies.  

Since 1998 the Kentucky Trail Court Review, KTCR, has summarized jury trials and reported the verdicts from around Kentucky. Every month the KTCR reports jury verdicts in cases involving medical malpractice, car accidents, slip and fall injuries, insurance bad faith and other civil tort cases.  At the end of each year KTRC produces a Year in Review, summarizing the data collected.  For lawyers who settle or try injury cases this is an important tool for assessing case values and for settlement negotiations.

To evaluate the likely outcome of a case at trial it is helpful to review the verdicts in cases with similar facts and injuries in the same geographic area.  Location does matter because we see patterns of higher or lower verdicts in different parts of Kentucky. You need to consider whether you are bringing a case in Bowling Green, Russellville, Hazard or Louisville and look closely at verdicts in front of the same judges with jurors from the same area. Fortunately, KTCR organizes case results by geographic region.  

Beyond helping you evaluate a claim, verdict reports can be used to influence the outcome of settlement negotiations.  I have included them in settlement demand packages and presented them in mediation conferences. In addition to individual case summaries, reports in the KTCR Year in Review can be very helpful.  One very useful report is the Injury Multiplier.

The Injury Multiplier is an analysis of jury verdicts by type of injury, including the following categories:  soft tissue injury cases; disc injury cases; wrist/hand injury cases; ankle injury cases; knee injury cases; arm injury cases; shoulder injury cases; broken leg injury cases; brain injury cases; and facial/dental injury cases.  For each injury type the report lists the cases, the verdicts, the amount awarded for medical bills and the amount awarded for pain and suffering.  It then provides a calculation of the amount of pain and suffering awarded in relation to medical expenses.  For example, the 2008 report showed that broken leg injury cases resulted in pain and suffering awards, on average, of 3.213 times medical bills.  In brain injury cases the multiplier was 12.225.  

There is a special report for cases resulting in death, which includes the manner of death, the occupation of the victim, the amount awarded for destruction of the victim's ability to earn money, and the amount awarded for suffering.  The report shows the win-loss record of medical negligence cases resulting in death and the of automobile negligence cases resulting in death.  It also shows the aggregate awards and the average verdicts.

The KTCR Year in Review includes summaries by case type and facts raised.  You can find specific reports on verdicts involving:  Auto Negligence; UIM-UM; the Seat Belt Defense; Premises Liability; Medical Negligence; Sexual harassment; False Imprisonment; Civil Rights; Employment Discrimination; Assault; Product Liability; Bad Faith; Animals; Defamation; and Dram Shop (negligent service of alcohol).

You can also find an analysis of cases involving chiropractic care, permanent impairment of earning capacity, loss of consortium or punitive damages.  If you are working with an adjuster or defense attorney who is undervaluing your client's damages, the KTCR reports can be very persuasive and help you get more money for your clients.

Part III - How Does UIM Work?

In Kentucky Uninsured Motorist Coverage (UM) and Underinsured Motorist Coverage (UIM) are different items of automobile insurance coverage.  You can have one and not the other on your policy, so you need to carefully review your coverage.  What is the difference? UM comes into play when you are hit by a driver with no insurance.  UIM comes into play if you are in an accident caused by a driver who is insured, but whose insurance is not enough to cover all of your damages.  

To understand the importance of UIM, it is helpful to understand how liability coverage works.  In Kentucky car insurance is required by law, but there are limits on how much insurance you must have.  For a regular car or truck (not a commercial vehicle) Kentucky law requires liability insurance for bodily injury claims of $25,000 for one person injured, but not more than $50,000 for all of the people injured in one accident.  Obviously there can be more than two people injured in an accident, so coverage for each person can be some small share of $50,000.   That is what is called "minimum limits" liability coverage.  Increasingly we see insurance companies advertising "state minimum coverage" or that they "keep you legal for less."  Those companies are pushing minimum limits coverage, and, in today's economy, many people are buying it.

What that means for you as a driver or pedestrian is that you may be hurt in a car accident that is clearly another person's fault, but he or she may not have the insurance or money to pay you everything you deserve and need.  I have many clients with medical bills that exceed $25,000.  If you are taken by helicopter from the scene of an accident you may have a bill exceeding $10,000 before you even arrive at the hospital.  Even if my client has health insurance, he or she can be financially devastated by the co-pays, deductibles and uncovered medical services required.  Injury victims are also entitled to money for lost wages and pain and suffering.  If there is not enough liability insurance to pay these claims, you can recover them from your own UIM coverage.  The beauty of UIM coverage is that you can control how much you have.  You can buy UIM on the vehicles in your own household and basically insure the other drivers on the road in case they injure you.  

Part II - What is Uninsured Motorist Coverage?

The Insurance Research Council (IRC) estimates that 16% of drivers in Kentucky were uninsured in 2007.  IRC Vice President David Corum projects that for every one percent increase in unemployment nationwide the percentage of uninsured motorists increases three quarters of a percentage point.  Sadly, unemployment rates are climbing.

If you are in an accident caused by an uninsured driver you may have trouble collecting compensation for your damages.  The at-fault driver is personally responsible for damages but often will not have the money to pay you even if you take the step of suing that driver and getting a judgment.  

Medical bills after an accident can be financially devastating, even for people with health insurance.  Injuries can keep you from working and cost you the ability to support your family.

You can protect yourself by having both collision and uninsured motorist coverage (UM).  Collision coverage pays your own property damage, usually regardless of how the damage occurs.  UM covers your bodily injury claim, which includes medical bills, lost wages, and pain and suffering.  UM applies when there is an impact with an uninsured at-fault driver.  (Unlike PIP and collision, UM does not apply when no other driver is at fault and it does not typically apply if another driver causes you to wreck without his vehicle making contact with your vehicle).  

In Kentucky UM must be offered as part of every policy covering a car or truck.   (UM does not have to be offered as part of policies covering motorcycles). You do not have to purchase it, but every company selling policies in Kentucky has to offer it.  In order to exclude it from your policy you must acknowledge in writing that you do not wish to buy it.  

You may save some money on your premium by declining UM, but consider where that will leave you if you are hit by one of the many uninsured drivers on the road today.

Part I - Protecting Yourself by Buying Good Insurance Coverage on Your Own Vehicle

With the current state of the economy, people everywhere are looking for ways to trim budgets. We can expect to find more people reducing what they spend on car insurance and, in some cases, driving with no insurance at all.  If you spend less on your car insurance you usually end up with less coverage - fewer benefits to pay your own car repairs, car rental, and medical bills, and fewer benefits to pay for any injury or damages you cause another person.   A driver without enough car insurance or with no car insurance will be personally responsible for uncovered damages, but collecting damages from an individual can be difficult or impossible. The guy with no car insurance usually has no money to pay you either.

Fortunately, in Kentucky, you can protect yourself by purchasing Underinsured Motorist Coverage (UM) and/or Uninsured Motorist Coverage (UIM). UM is coverage you buy on your own automobile policies that pays your bodily injury claim if you are in an accident caused by a driver with no insurance. UIM works similarly, but pays you if you are hit by a driver who is insured, but who does not have enough liability coverage to pay everything you deserve.   Kentucky requires a minimum of $25,000 in liability coverage on every policy, but your damages might include medical bills, lost wages, pain and suffering and future medical bills and wage loss in excess of $25,000. The value of the claim beyond the amount of coverage is the underinsured amount, and UIM coverage pays that up to the limits of the limits of the UIM policy.

UM and UIM coverage can come into play even if the car or truck that is covered by that insurance is not involved in the wreck. If, for example, you are hit when you are a pedestrian, you can still turn to the coverage on cars in your household for this kind of insurance coverage. If you are in a car that belongs to someone else you will turn first to the car you in for UM or UIM, but next in line will be the UM or UIM on any car owned by you or by a relative living in your household.

Given the state of the economy and the number of uninsured and underinsured drivers on the road, it is a good idea to meet with your insurance agent and review your policies.

Among bills being considered by the General Assembly this session is a proposal to drastically change Kentucky's no-fault insurance system. As it currently exists, no-fault auto insurance coverage, also called PIP (Personal Injury Protection) or BRB (Basic Reparation Benefits), pays for medical bills, wage loss and certain other expenses, immediately after an accident.  It is referred to as "no-fault" because, generally speaking, you will get no-fault benefits from the car or truck in which you are a driver or passenger when an accident happens, regardless of who is at fault.

Even if you have a liability claim against an at-fault driver, no-fault coverage is important because, unlike liability coverage, it will pay your losses along the way, before the whole matter is settled.  If you are missing work due to your injury the standard no-fault policy will pay up to $200 a week for wages.  You have the right to designate whether you want to reserve your benefits to pay wage loss or have them applied to medical expenses.

Kentucky House Bill 381, sponsored by Representative Jim Gooch, provides for PIP to be directed to emergency services first.  The injured person would not be able to direct benefits to wage loss.  The bill also proposes a number of ways for insurance companies to avoid payment of medical bills.  They would be able, without court order, to require an injured person to undergo a medical examination by a doctor chosen by them.  The bill would also establish a complicated system for third party review to determine whether medical expenses are reasonable and necessary.

Nobody asks to be in a wreck.  One of the hardest issues my clients face is the loss of income while recovering from an injury.  While $200 a week is usually not enough to make up all that is lost, it can be the lifeline that keeps a family afloat until the case is settled or the victim is back to work.  Rep. Gooch's bill would force a car accident victim to use his PIP benefits for medical care that might be covered by health insurance, while the victim likely has no coverage for wage loss.  Under this plan a person who has paid two insurance premiums, one for his car and one for his health insurance, has simply lost up to $10,000 of benefits.

When the Kentucky General Assembly passed the no-fault laws in 1974 they said their purpose was to "encourage prompt medical treatment and rehabilitation of the motor vehicle accident victim...to permit more liberal wage loss and medical benefits...and to reduce the need to resort to bargaining and litigation through a system which can pay accident victims without the delay, expense, aggravation, inconvenience, inequities and uncertainties of the liability system."  This bill undermines all those purposes.