Who Should Pay For My Property Damage in Louisville After a Car Crash?

I'm working on property damage today.  If your lawyer tells you that he only represents you on the injury claim and not the property damage claim than your lawyer is being lazy.  I will say that I authorize the insurance companies to set up a viewing of the vehicle and communication with my clients on this aspect of the claim.  Generally speaking my clients are going to know more about he value of their vehicle, but I'm happy to assist when necessary.

Property damage works like this: 1) the at fault vehicle pays for your damage (in pre-lit or because a judge/jury tells them to) or 2) you have comprehensive and collision and your insurance company pays for the damage. 

#1 is usually the preference because most people don't want to pay their deductible and most people want the other persons insurance company to be on the hook.  The issue here is that liability here needs to be relatively clear cut for the at fault carrier to make a liability decision and cover the damage.  If liability is disputed then the at fault won't pay on the sooner side and a lawsuit may be necessary.  That won't "speed" up the process, but it will get the carriers attention.  A carrier subjects itself to bad faith by failing to properly investigate.  That is the topic of another post.

So lets say you are side swiped and the other driver says you caused the crash.  His insurance company isn't going to pay for your damages without being forced to by a just or jury. If that is the case you better hope you option #2 available to you.

The quickest way to get the damage covered is thorough your carrier if you have the right coverage.  They will set it up and move the damage along.  Your insurance, assuming they don't think you are at fault, will then pursue the other insurance company to reimburse them.

The next question you have is how do they pay me.  If your vehicle is totaled they owe you the market value of the vehicle at the time of the loss.  Contrary to what you would wish, this means what the vehicle is worth and NOT what you owe on it (insert GAP insurance).  If you owe more on the vehicle due to depreciation then you can be in a bad spot, but the law can't force someone to pay for more damage than what something is worth.  If the car is fixable they will pay for the damages at the repair facility.  That is pretty cut and dry, but make sure you get a repair facility that you like and trust.

Some other tips: if you can wait get both carriers to make you an offer on the vehicle and take the higher one AND do not be fooled into thinking you must bring the vehicle where the insurance adjuster tells you go.  You have the right to choose the auto repair facility of your liking.  They want you to use theirs because its quick and cheap.  You don't want quick and cheap.

All of the above info is general.  As any lawyer would tell you...there are exceptions to everything.  I'm happy to discuss at 502-779-9998 or 502-444-HURT or bdettman@dettmanlawrgoup.com

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Dear Insurance Company, Pay the Deductible and Avoid the Personal Injury Lawyer

A former employee called me last week and told me her father was in a car crash and needed my help.  He had been rear ended by an uninsured driver and wasn't sure what to do.  After speaking to him I learned that he was mostly just pissed at his own insurance company for making him pay a $100.00 deductible on his property damage.  He understandably wanted to stick it to the uninsured driver as well.  Luckily, my client has uninsured coverage and can make a claim.  However, I don't think he would be making a claim if his insurance company just paid for his deductible.  I'd say at least 40% of what I do it related to insurance companies making stupid decisions.  I'm sure if some MBA evaluated this he would tell State Farm to pay the $100.00 deductible and hope this thing will go away.  Instead, I'm making an uninsured claim that won't resolve for less than several thousand dollars.  The insurance company will front that money and then attempt to collect it from the uninsured driver.  Catch is uninsured people don't have money so they will spend a lot of time chasing their tail. I'm not sad about it, but its an inefficiency in our system.

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Insurance Offer Three Days Post Crash

An Allstate Lawyer took my clients deposition last week.  My client was asked about who communicated with her after the crash.  Turns out that an Allstate adjuster called my client a couple of days post crash and offered her $500 for her injuries in exchange for closing out her claim.  My client has an injury that is going to last a lifetime.  The notion that an Allstate Adjuster would call her up a few days post crash and try to resolve her claim is offensive to me.  Here is a person involved in a big crash with serious injuries and Allstate is doing its best to screw the injured person over by resolving it quickly and for less than what the case is worth.

Lets pretend for a minute that my client is in a financial bind and $500 sounds pretty good.  They accept.  From that minute forward they are prevented from further compensation to pay medical bills.  What if my client needed a surgery and didn't have health insurance?  I can see a scenario where the client goes bankrupt on account of the medical expenses.  And all of this because of an Allstate "pop out" adjuster.

There are rules in place that prevent lawyers from communicating with injured persons post crash.  There should be a similar rule for insurance companies.  I might be ok with a rule that allows Allstate to pay 500 bucks up front but preserves the right of the injured party to re-open the claim at any point within the statute of limitations, but allowing unfettered communication to an unrepresented party by a sophisticated insurance company is absurd. 

Nobody ever hears about this stuff and it happens on a daily basis.

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Allstate Insurance, Again.

I'm headed to Court this morning because Allstate Insurance has decided they want to try to go around the law.  The Kentucky Supreme Court (KYSCT) decided in Adams v. State Farm (Aaron Murphy argued this case.  He is brilliant.) that an insurance company, when questioning personal injury protection benefits, is allowed to question their insured about the facts of an accident.  All of the medical bills and medical records are submitted to the insurance company for review of treatment.  In making the Adams ruling the KYSCT held that the insurance companies don't get to question about medical treatment/bills.  This makes sense because injured parties aren't medical professionals.  The reason this is important is that nobody remembers whether or not the massage therapist six months ago at the physical therapy clinic massaged them for twelve minutes or fifteen minutes.  In the past insurance companies were allowed to question about injuries/treatment which inevitably led to their clever lawyers trying to trick my clients and make a big issue out of something a lay person stated about medical treatment or something innocuous like whether or not an ultrasound was provided (I had one case where my client thought it was pregnancy ultrasound).  The KYSCT held that if there are questions about medicine that the law provides the insurance companies a means to investigate.  The means is an "independent" medical examination.  The problem from the insurance companies perspective is that the doctors performing these "independent" medical examinations are expensive and that the insurance company also has to prove to the court (aka hire lawyers) to show there is "good cause." This costs the insurance companies money and is more expensive than what they are currently trying to do.

Side note: I've spoken to my clients medical providers and they are willing to answer Allstate's questions about treatment.  Allstate refuses.  I've also had my clients in this case go over all of their medical bills and records.  They did so and submitted an affidavit to the court stating they received the medical treatment submitted to Allstate.  Nonetheless, Allstate won't hassling my clients.

What is really happening behind the scenes is defense lawyers are trying to strum up business and save insurance companies money they ought to pay out.  The way to do that is to hassle insureds and hope they will find a plaintiff's lawyer that won't fight them; or a judge that will allow them to disregard the law.  The worst part is that the insurance companies are fighting their own insureds and attempting to stick them with thousands in medical bills.  The way the insurance companies do this is to sensationalize their pleadings.  This particular insurance company has a lawyer (who I really like) that alleges Allstate has a duty to investigate fraud and that because they have a duty he must put my client through ANOTHER deposition (he already asked about what happened in the wreck).  The issue is that the insurance company lawyer puts nothing of substance in his pleadings.  It is all hunches and speculation.  The law requires fraud to be plead with specificity.  As a result my response is always put your money where your mouth is show us the proof.   I have hunches and speculations about whether or not Allstate insurance underpays minorities on bodily injury claims, but I don't get to put in a pleading and have a judge grant me depositions based on theories.  The issue we run into is that when a judge hears fraud they get understandably apprehensive about not granting the insurance company requests.

I think we can all agree that fraud is something that should be investigated.  The question is by who....should it be insurance companies and their lawyers trying to make a buck?  Or should it be the government authorities?  As a former prosecutor, I believe it should be the latter.

The request Allstate has made today is really on account of my clients traveling twenty minutes to get to a chiropractor for treatment.  My clients are hardworking, responsible people who already told Allstate under sworn statement that they decided to drive twenty minutes for treatment because a family member recommended the chiropractor.  I've driven an hour and a half to doctors in Cincinnati for treatment, but twenty minutes is too much for Allstate.  Its absurd and from my perspective really dishonorable corporate behavior from Allstate.  My guess is some MBA decided this is good corporate policy from a financial standpoint.  It's not good policy for their insureds.

Lets see what the Judge does.

The Defendant Has Insurance

I'm prepping for two upcoming trials.

In 99% of the cases I have the defendant is insured and the lawyer representing the defendant was hired by the insurance company.  In the other 1% of cases the defendant has money.

The first, case I'm working on is a dental battery.  The lawyers from the other side, in an effort to be paid by the insurance company, are trying to change it into a malpractice case (insurance companies don't pay lawyers for solely battery claims as they are usually excluded from coverage). I've continued to tell them this is a battery case and I get why they are trying to argue otherwise $$$ :)  The defendant in this case has assets and this case is the exception to the rule. 

The second case I'm working on is a "he said he said" car crash case.  My client and the defendant both say that the other guy ran the red light.  What I find interesting about this case is the defendant did not go to the hospital post crash despite the fact the EMS personnel was telling him to go.  I don't think he went because I think he passed out at the wheel in a diabetic attack, he has had that happen before.   The defendant did go to the hospital later that day.  I think he didn't go initally because he didn't want records reflecting what happened.  He says his kids were scared that their dad would die so he went home with them.  That doesn't make sense.  Your kids would want you to go to the hospital.  My client fractured his spine in this case.  He has recovered as well as one could, but that is a terrible injury to go through and he still suffers.  I remember meeting him for the first time in his full upper body back brace.  He was wincing the whole time I spoke with him.  The defendant driver is insured which is the norm. The jury won't get to hear anything about the insurance company, but they are on the hook to pay, not the defendant driver.  I wish I had some explanation for this but the rules don't allow me to bring it up.

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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

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