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!

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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.

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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