No Good Deed Goes Unpunished- Helping a Family Member

No Good Deed Goes Unpunished- Helping a Family Member

This afternoon I'm defending a deposition.  This is the only defense case I have open and it is pro bono for a friend.   It is not related to an injury manner.

My client took care of her elderly aunt for five years through a voluntary power of attorney (POA).  Client was basically at the beck and call of the Aunt to do things like take her around town or to the grocery store.  Out of the blue in comes a Man from out of state that is significantly younger than Aunt and about the same age as client.  Man and Aunt haven't seen each other in decades.  Man takes over Aunt's life, moves into her house, and my client is subsequently removed from power of attorney.  Man then decides he is going to have Aunt sue my client for acts she took that were authorized by the Aunt.  The damages are less than what Aunt is going to pay her lawyer to try the case. 

I've handled family cases before.  This included cases between members of my own family.  They are UGLY cases where nobody wins in the end.  The stress this case is going to cause on the Aunt and on my client from what I can tell isn't worth the money they are fighting over.  Both had a good relationship before Man enters the picture and my client is close to the only family that Aunt has left.  In addition, I've counter sued Man and it is likely to get ugly for him :). 

Tell your family you love them tonight.

Brian Dettman www.louisville-injury-lawyer.com Advertising Material.

The Myth of Auto Insurance "Loyalty." Ongoing USAA Lawsuit.

UPDATE: USAA paid my client a fair sum to resolve his case. 

One of my current clients has been with USAA Insurance for years.  He is former military and a twenty year veteran in the Louisville Fire Department so USAA seemed like a good idea for him when he signed up.  Fast forward to when he actually needs to use his coverage....

While riding a bike in the bike lane in downtown Louisville he was hit by an at fault driver who was insured by Allstate.  My client was an avid triathlete and was in great physical shape before the crash.  He underwent conservative therapy in an effort to get back on track.  He also attempted to continue to do the one thing he loved, triathlons, but eventually reached the point where his pain was too much and he underwent a cervical fusion surgery.  Surgery was not something my client wanted because he is now limited in basically everything he does, including triathlons.

I can relate to this client because I'm equally stubborn.  I play ice hockey many times a week.  If someone crashed into me and I was getting treatment/recovering I'd continue to play hockey.  My play would deteriorate, but unless someone told me I'd 100% kill myself playing I'd continue to skate.  Same deal with my client, he continued doing triathlons.  His speed significantly deteriorated and there were races he could not finish due to pain.  Keep in mind he had no issues with his neck before he was hit by a car.

We initially received an offer from the at fault driver that was insufficient so I filed suit.  They told us this was a "soft tissue" case because my client waited too long to go get a surgery.  We were also told that the other driver had a different set of facts.  I deposed their driver and she folded under pressure.  I then demanded her policy limits and her insurance company paid.  Unfortunately, her policy limits were insufficient to cover my clients damages.  When a defendant does not have sufficient coverage the next thing we look to is called Under-Insured Motorist Coverage ("UM" Coverage).

My client purchased UM through USAA.  The purpose of this coverage is to step in the shoes of the at-fault driver should he/she have insufficient coverage.  This type of coverage is specifically bought and my client purchased it with the hope that when/if he needed it that his insurance company wouldn't put him thorough the ringer.  Part of this hope was based on the commercials USAA runs about people being members for life and them having great service.

I demanded my clients UM policy limits.  I was told that my client needed to get his head out of the clouds.  I replied that in addition to my client's significant injury he was a bit perturbed his own insurance company was making him jump through hoops and basically calling him a liar.  I told a USAA representative my client had paid premiums for years to USAA and the USAA representative told me that each and every year that premium expires so my client gets no credit for being a loyal member.  According to the law that is a correct statement of fact and I hope this USAA rep is just doing his job.  However, the way USAA advertises "members for life" and loyalty I find their position to be untruthful.   Don't pretend to be a loyalty based company if loyalty isn't worth anything.

We are set for trial in March.  Interestingly, the Allstate Lawyer will be defending USAA's money

Advertising Material for www.louisville-injury-lawyer.com and Brian R. Dettman

Injury to Child Cases in Louisville Kentucky

I'm back in the office working on cases involving injuries to children.  On my desk right now is a brain injury case, an eye injury case, and a dog bite case. They are cases that need special attention.  They are also and rewarding to work on because I know I'm doing good.

Here are some important considerations when handling minor-child cases:

1) The statute of limitations runs extends from the eighteenth birthday.   This means there is generally speaking a longer time frame in which to make a decision about filing a lawsuit.  One year from an injury case and two years for a car crash case.

2) The minor's parents must sign with the lawyer.  This means the parent is running the show until the child turns 18 years old.  The parent will have to make important decisions about resolving the case or filing a lawsuit.

3) Any money recovered will need to go into a blocked account.  This isn't because "The Law" thinks you will mismanage your kids assets.  It is because other people have done some pretty stupid things and made it so we require a judge to approve minor settlements.  Once the money goes into a blocked account it will not be released until the child turns 18 absent a court order.  It is possible to get the money released if it will be used "in the best interests of the child."  A judge determines that standard.  A computer for school is a good example of something that is in the best interests of a child  Money for an expensive car at age 16 would be an example of something a judge might not approve.  Some lawyers hire other lawyers to put minor resolutions through the probate court.  My office does them as a matter of course.

4) You are looking at a lifetime of damages if there is a permanent impairment or injury.  This means you have more damages.  More for the lawyer to argue for.

I take pride in the work I do on all cases including child injury cases.  If you have any further questions I'm happy to answer them.

Advertising Material for www.louisville-injury-lawyer.com by Brian R. Dettman

NOTE: I have been in Africa and this blog hasn't been updated in a while as a result.

Insurance Adjuster Scare Tactics

An Insurance Adjuster just forwarded me photos of my client's vehicle post crash.  My client drives a massive Ford Expedition.  The defendant was driving a Dodge Durango.

The wreck happened a few weeks ago and there isn't a reason for the insurance adjuster to send me these photos other than to infer that the wreck wasn't bad and thus my client cannot be hurt.  Its a cheap scare tactic.  Interestingly, the insurance adjuster did not send me any photos of his insureds vehicle.

The impact was to my clients trailer hitch and absolutely destroyed the other car.  If you just look at my clients vehicle it doesn't look bad (structural damage underneath)...which is why the insurance adjuster only sent me those photos.  I asked him for photos of his insureds vehicle and he said he didn't have any.  I then asked him for a copy of the body shop repair estimate on his insureds vehicle.  No surprise, he didn't have that either.

I have photos of the vehicle that hit my clients Expedition.  I just sent the photo to the insurance adjuster :)

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Brian R. Dettman

Mediation Low Medicals

I went to a mediation yesterday with a client I really like and a mediator that usually gets cases resolved.

My client was rear ended on I-264 in his F-150 by and F-150 and catapulted into an F-150.  You read that right.  Three F-150's involved in the same crash.  This is Louisville.  The Defendant driver had just received a text from his wife and was looking down.  My client has four children and a wife.  He doesn't have the option of not working for a living.  As a result, he only had 8.1K in total medical expenses because he didn't have time to go back and forth to doctors...despite the fact he was hurt.

I find that if my clients have "high" medical expenses the other side will argue they "over treated."  If the medical expenses are "low" I hear "they weren't that hurt."  Doesn't make sense from my perspective, but those are the arguments.  My client also had to work to make a living so I expected and received "if he is that hurt how can he work."  The response is obvious"people have to make a living to feed their families."

This particular case had a defense attorney that I liked working with.  She gets that we don't all have to be at each others throats and can sometimes get more done for all of our clients by working together to resolve the case.  Two hours into the mediation we had reached a standstill.  The defense lawyer found a way around the standstill and I was impressed.  

The insurance company originally offered him 4.5K.  I thought they mixed up their files.  I filed a lawsuit and they came up to 9K.  Yesterday the case resolved after a year of litigation for 24K.  Client was happy so I'm happy.

Advertising Material for www.louisville-injury-lawyer.com

Brian Dettman

Defense Lawyer Loves Himself Mediation Conversation

Heard a great one from a defense lawyer today.  We were discussing mediation and whether or not the insurance adjuster has to attend mediation.  Local rules mandate the adjuster must show up absent an agreement.  I will occasionally agree to waive presence of the out of state mediator if the mediator fronts my clients mediation bill (usually 200 bucks).  The defense attorney asked me to waive presence and also waive the mediator paying for my clients portion.  I told him I need to have the adjuster with some skin in the game.

One of my favorite things he said was something to the effect of:

Listen, if you are not agreeing to what I'm asking for because you want to try this case against me I get it.  A lot of people want to try cases against me (insinuating he is really important) and I'll shake your hand before the trial and I'll shake your hand after the trial, but if that is what this is about just say it.

In my dealings with this lawyer I can tell he is a good lawyer and he is very used to getting his way...but C'MON MAN!

I'm not really advertising anything in this blog so I'm not putting Advertising Material.  Actually, lets just post here that the whole blog and every post is Advertising Material and cover all my bases.

Coverage Argument on Initial Permission Rule

I'm going to court tomorrow to argue a declaratory judgment action.

Facts: Renter rents a car from Enterprise and drives to Vegas with Client and Driver.  Renter gets to Vegas and decides she doesn't want to drive back to Louisville so she flies back.  Renter hands keys to Driver and tells him to drive it back to Louisville.  Client is in the car with Driver and there is a crash in Arizona.  Driver is at fault for rear ending someone.  Driver is insured by Allstate on his personal policy in the State of Kentucky.

Instead of defending Driver Allstate files an action against their own insured arguing that Allstate isn't liable for coverage because Driver wasn't supposed to be driving the car that wrecked.  Allstate fails to include Enterprise in the action.

I argued that Enterprise needs to be a party to the action.  Allstate eventually appoints Driver a different lawyer to defend him, but that lawyer isn't fighting for coverage for Driver (that lawyer also does a lot of work for Allstate).

244.S.W.3d 59 from the Kentucky Supreme Court governs this case.  Interestingly enough its entitled Mitchell v. Allstate Insurance and the defense lawyers are the exact same lawyers that filed the current declaratory judgment.   Clearly they are familiar with the law.  Mitchell adopts the "initial permission rule."  That rule holds "as long as the originally taking of the vehicle was with the permission of the named insured, any subsequent use of the vehicle by the borrower would be covered by the policy."

My argument is simple: Renter gave Driver the keys and thus he meets the initial permission rule and Allstate and Enterprise are on the hook for coverage.

The disappointing thing from my perspective is that Driver clearly pays premiums to Allstate and then when he gets in a crash Allstate argues they aren't on the hook for his damages.  I find that unbelievable, but not surprising based on what I've seen from Allstate.

Advertising Material for www.louisville-injury-lawyer.com

Brian Dettman

UPDATE: Judge held that as a matter of law the Renter could not have transferred permission for Driver to drive the vehicle.  Decision can be appealed...

When "Full Coverage" Isn't Helpful on a Motorcycle

Did your insurance agent sell you a "full coverage" motorcycle insurance policy?  Having handled many motorcycle crash cases I can tell you that "full coverage" most likely means your coverage is terrible.  It usually means you have lots of liability coverage in the event you hurt someone else.  It does not mean there is enough coverage for you.  A lot of the time you are not sold Personal Injury Protection or Un/UnderInsured motorist coverage.

If I rode motorcycles my bike would have $50,000.00 in PIP Coverage and $1,000,000.00 in Un/UnderInsured coverage.  That way when some moron pulls out from a stop sign and hits me I actually have coverage for me and not the other driver.  

If you are riding a motorcycle for ANY PURPOSE I beg of you: Go talk to your agent about your level of coverage.  Don't just trust you bought "full coverage."  Have the agent explain everything (don't just shop online).  Buy as much coverage as you can get.  The injuries people sustain in bike crashes is oftentimes exceptionally life altering and I hate telling injured people there isn't enough coverage to go around.

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Bully Letter from Insurance Company to My Client and My Response

This Tuesday I received a letter from an insurance company telling me that due to the level of property damage my client could not have been injured in a crash.  My clients wreck was a month ago and the insurance company had no medical bills or records so the letter struck me as strange.

I thought about making a complaint to the Department of Insurance, but instead I wrote the letter below to the driver that hit my client.  Two days later I received a call from the insurance company telling me to send a demand on behalf of my client when it is ready.

My guess is some business analytics guru came up with this idea to scare people out of going to the doctor when they are hurt and told the insurance companies it would save money to send these letters.  I hope I'm wrong and this was just some rogue adjuster trying to make a name for himself.

DEFENDANT

IF YOU HAVE A LAWYER PLEASE DISREGARD THIS MESSAGE AND GIVE THIS TO YOUR LAWYER.

August 15, 2017

DEFENDANT,

My name is Brian R. Dettman and I am the lawyer for CLIENT.  She is the woman that was rear ended on 6/14/17.  I wanted to introduce myself and give you my contact information should you have any questions about my client’s case.  My understanding is that there was not a lot of property damage in this case so my guess is you have questions concerning my client’s injuries.  If you do, I’m happy to provide you my client’s medical bills and records for review.

I’ve received a letter from INSURANCE COMPANY (your insurance company) ADJUSTER telling me that my client wasn’t hurt in this crash.  INSURANCE COMPANY doesn’t have my client’s bills and records so I find that position a bit problematic, but insurance companies never cease to amaze me.

I’m not sure if you have ever been part of a lawsuit before.  The interesting thing from my perspective is it is normally the insurance company that assigns you a lawyer (if a lawsuit is filed).  In my experience, that lawyer is usually hired quite a bit by the insurance company.  You can take that for what it is worth.  If you do decide to get a personal lawyer please let me know and I’ll contact that person directly.

My client would like to resolve this amicably with INSURANCE COMPANY so hopefully I don’t get any more letters from your insurance company assuming without justification my client isn’t hurt. From my perspective that is a cheap bully-like tactic.  It also increases the likelihood my client files a lawsuit against you.

If you want to speak to your INSURANCE COMPANY adjuster his name is ADJUSTER NAME and his phone number is PHONE NUMBER

Sincerely,
Brian

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Yesterday I filed a Motion For Summary Judgment against an Insurance Company from Texas.  My client was driving a tractor on the side of the road in broad daylight.  He had flasher warnings and slow vehicle moving signs.  Didn't matter to the big rig that rammed into the back of him.  My client eventually had to undergo a cervical fusion.


We set up the claim and asked the insurance company in Texas to provide Personal Injury Protection (PIP) benefits.  PIP benefits are used to help a person pay up front medical costs so that doctors will treat them.

Kentucky law mandates that persons who are driving tractors are not driving "motor vehicles." Legally speaking if you are driving a tractor you are a pedestrian under the statute.  If you are a pedestrian than the vehicle that hit you (see big rig) is on the hook for providing you with PIP benefits.  However, the Texas Insurance Adjuster took the position he would not be providing PIP.  My guess is that this adjuster was unfamiliar with Kentucky Law and getting advice from a lawyer in Texas.  Either that or he didn't think I would sue him.   I filed a lawsuit against the insurance company, the driver of the big rig, and the company that employed the big rig driver.  

My Entire Argument:

Plaintiff’s argument is short and sweet.  Under Kentucky Law, while driving a Tractor, Client is a pedestrian for purposes of Personal Injury Protection Benefits.  See 304.39-020(7).  Client is not driving a “motor vehicle” as defined under the act and the vehicle that hit him, the tractor trailer, is liable for providing Personal Injury Protection Benefits. See KRS 304.39.050.  American Hallmark has failed to provide such benefits and is thus in violation of the Motor Vehicle Reparations Act.  There is no factual dispute.     

I wonder if this would have happened if I was dealing with a local insurance adjuster who was familiar with PIP.  I also find it interesting the Insurance Company from Texas hired the same Louisville Law Firm to defend all three claims.  

Hearing set for October 19 in Shelby County Kentucky.

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-Brian R. Dettman