Posted on September 19th, 2016 No comments
The Kentucky Tort Journal recently published a post summarizing the Court of Appeals recent published opinion discussing whether an insurer can unilaterally deny payment of no fault benefits after conducting a medical records review. Called a paper review, it involves a medical professional chosen by the insurer who will review an insured’s medical records and determine whether treatment performed was reasonable and necessary. If not, the insurer would deny payment for services rendered from a certain date and for future payment of further treatment.
This has been considered an end around Kentucky’s independent medical examination (IME) statute that provides judicial oversight from such unilateral decisions by insurers and the paid consultants that they employ. The Court found that such tactics violated the language and the spirit of the MVRA and its IME statute. This statute requires a finding of “good cause” on the part of the insurer in seeking the examination before an IME is ordered. The IME may or may not be found by the court to be warranted.
Consider the court review of an IME and subsequent finding of good cause with the unilateral attempts by insurers to deny benefits after a medical review by a professional of their choosing. The Court of Appeals found under the latter circumstances that the insurer was “judge, jury, and executioner.” It decline to grant such authority to the insurer. While a medical review may act as “good cause” to warrant an IME, it alone can’t form the basis of a decision by the insurer to unilaterally deny the payment of benefits. You can read the entire post, here.
If you have been denied the payment of basic reparation benefits, also known as no fault benefits, or personal injury protection benefits (PIP), you may have been denied those wrongly. In which case, you may be entitled to the payment of those benefits, plus interest and a reasonable attorneys’ fee. If you think you have wrongfully been denied benefits to which you are entitled as the result of a car accident, please contact our office.
Posted on August 30th, 2016 No comments
The Kentucky Tort Journal recently published a decision by the Kentucky Supreme Court which discussed competing insurance clauses and primary responsibility for UM benefits. The Court decided that “other insurance” clauses used by companies to defer responsibility to another insurance company were void as against the Motor Vehicle Reparations Act (MVRA). It also decided that the car in which passengers were riding provided primary coverage (coverage first) for Uninsured Motorists benefits. You can read the article, here.
Posted on August 22nd, 2016 No comments
I will be speaking at a seminar hosted by National Business Institute titled; “Litigating Bad Faith Insurance Claims in Kentucky.” The seminar will take place on Friday, September 23, 2016, at the Holiday Inn Louisville East-Hurstbourne. Here is the program description:
Gain the Practical Skills You Need to Handle Bad Faith Claims
Can you easily distinguish circumstances in which bad faith exists vs. where it does not? Are you aware of the tips, tricks and best practices utilized by both sides of the table? Augment your insurance knowledge with the concrete strategies you need to avoid traps, overcome challenges and reach your goal in the next bad faith case. Whether you’re counsel for the plaintiff, the defense, or are an insurance professional trying to prevent bad faith claims, you won’t find instruction this practical anywhere else. Register today!
Get a clearer understanding of what bad faith is and isn’t.
Anticipate and avoid the commonly-mishandled aspects of bad faith cases.
Accurately determine the validity of a claim with surefire discovery tactics.
Understand the effectiveness bad faith defenses and know alternatives when they’re not accepted in court.
Get pointers for presenting bad faith in court, from voir dire to verdict.
Walk through the major stages of a case and get practical pointers from experienced faculty along the way.
The class qualifies for 6.0 Kentucky CLE credits. You can click the following link for the complete details on how to register, costs, program and course content.
Posted on August 8th, 2016 No comments
It’s in times like these that we should remember the wise words of Edward R. Murrow, who proclaimed over 50 years ago.
“We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our own history and our doctrine and remember that we are not descended from fearful men. Not from men who feared to write, to speak, to associate, and to defend causes that were, for the moment, unpopular…. There is no way for a citizen of the Republic to abdicate his responsibility.”
We are descended from brave men and women who refused to succumb to fear and set forth to form a new nation. We as their descendants owe nothing less.
(Edward R. Murrow was the CBS newsman who took on Senator Joseph McCarthy and his hunt to find communists in the federal government. It was at a time known as the “red scare” when American citizens were given to irrational fears regarding “communists”. If this sounds familiar to what is going on now, it should, because it is.)
Posted on July 15th, 2016 No comments
The Kentucky Tort Journal recently posted about a decision by the Court of Appeals which discussed what “occupying” a car means for purposes of qualifying for underinsured motorists coverage (UIM). The Court decided that “occupying” a car means more than just being inside of it. The Court awarded UIM insurance to an injured person who was outside the car when the accident happened. You can read the entire post here.
Posted on July 12th, 2016 No comments
Check out the new post over at kytortjournal.com that discusses the Kentucky Supreme Court’s recent decision to uphold a $1.45 million dollar punitive damages award. These damages are meant to punish the behavior that resulted in the harm and are typically rather large. However, they are subject to review and are often overturned if they are too high for the other damages awarded. In this case the Supreme Court thought the behavior was bad enough to warrant the award.
Posted on July 6th, 2016 No comments
Recently, our office has come across instances where our clients have been in an accident but failed to get license or insurance information. In one case, the negligent driver fled the accident scene after our client informed her that she was calling the police. In another case, the negligent driver said the car belonged to someone else and claimed to have left her license at home.
In the first case, my client pursued the negligent driver who quickly left the scene of the accident (the motorist did not have insurance). My client had to abandon the chase when the negligent driver began driving recklessly. The police refused to make a report because neither car was at the accident scene any longer. Fortunately, my client did get the name of the negligent driver, her phone number, and a description of the car. However, that was all.
In the second case, my client only got the first name of the negligent driver, a phone number, and a description of the car. However, she let the negligent driver leave without getting any other information. In both cases inaccurate information was given.
Tracking down the negligent drivers in these cases is extremely difficult. More importantly, the lack of a police report may impair your ability to make a claim or prove the accident happened at all. That’s why you should never leave the accident without getting proof of the negligent driver’s identity and evidence that an accident did occur.
Here are some steps you can take after an accident to insure you get the information you need. This will protect you from negligent drivers that leave the scene of the accident or who claim to lack necessary information needed to document their identity.
Put on your flashers and stop or pull your car to the side of the road.
Be prepared to get information such as the make, color, model, license plate number of the car, and a description of the driver if they attempt to leave the scene.
If the driver does stop. Insist that you must call the police to investigate.
If the driver claims to lack insurance or driver’s license information, don’t let that prevent you from calling police.
Call the police even if the negligent driver begs for you to let them go or offers to leave their name and telephone number. This information can later be false.
Insist that the negligent driver provide official documentation and not just provide verbal information.
If the motorist leaves the accident scene do not attempt to pursue. But note as much information as possible.
Finally, if you can, take pictures with a camera or a cell phone to document information. Take pictures of the negligent driver’s license, insurance card, and registration. If they lack this information or refuse to provide it, take a picture of the person, the damage to the car, the license plate or if possible the VIN number. If the driver tries to leave take photos, or if possible, video the negligent driver and the car as it leaves the scene of the accident.
Remember that after an accident your safety and the safety of others is the most important consideration. If you are seriously injured or if you are unable to exit your vehicle because of injuries, you’re best to leave identification of the negligent motorist to other witnesses. Witnesses are more inclined to stay after witnessing a serious accident. If documenting the scene may risk causing you injury, don’t risk further injury just to document the scene.
However, if neither of these are a concern do your best to document the accident as much as possible. Do not let a negligent driver leave the scene without providing some information or documentation. This will make sure that you have the proper documentation to identify the negligent driver and pursue your claim for personal injuries.
Posted on July 5th, 2016 No comments
A Texas teen, Rowdy Radford, was gravely injured, losing a leg, and potentially his eyesight, from a homemade explosive Saturday night. Rowdy fashioned the explosive together with 180 sparklers wrapped tightly with electrical tape.
The sparkler bomb exploded in his face when he lit it behind his aunt’s house in Sargent, Texas. Now the 15-year-old is in intensive care at Children’s Memorial Hermann Hospital in Houston. His injuries include the amputation of his left leg below the knee, scorched hands, face and chest, and his eyes heavily bandaged. Doctors won’t know whether he still has his eyesight until he wakes up from sedation to tell them whether he can see.
Rowdy’s family spoke Monday — temporarily leaving his bedside — to send a message to other kids and parents. Rowdy’s mother said; “It’s really hard to see your baby go through all this. I just want the parents to know don’t let your kids play with fireworks, it’s not worth it. It really ain’t. It hurts because I want to see my kid talk to me and he’s not because he can’t. It’s really rough.”
You can read the full report here.
As we previously posted, roughly 230 individuals are sent to Emergency Rooms each year during the weeks surrounding 4th of July festivities due to firework accidents. Children should not use fireworks. Make sure to supervise your children, including teens, around fireworks and make sure only adults are responsible for using them.
Posted on June 30th, 2016 No comments
Fireworks are synonymous with Independence Day. As the 4th of July celebration approaches, be aware that 230 people on average go to the emergency room for fireworks injuries in the month surrounding the 4th of July holiday. Fireworks are dangerous and should be handled with the utmost caution. However, fireworks injuries can be prevented.
Follow these safety tips when using fireworks:
Never allow young children to play with or ignite fireworks.
Avoid buying fireworks that are packaged in brown paper because this is often a sign that the fireworks were made for professional displays and that they could pose a danger to consumers.
Always have an adult supervise fireworks activities. Parents don’t realize that young children suffer injuries from sparklers. Sparklers burn at temperatures of about 2,000 degrees – hot enough to melt some metals.
Never place any part of your body directly over a fireworks device when lighting the fuse. Back up to a safe distance immediately after lighting fireworks.
Never try to re-light or pick up fireworks that have not ignited fully.
Never point or throw fireworks at another person.
Keep a bucket of water or a garden hose handy in case of fire or other mishap.
Light fireworks one at a time, then move back quickly.
Never carry fireworks in a pocket or shoot them off in metal or glass containers.
After fireworks complete their burning, douse the spent device with plenty of water from a bucket or hose before discarding it to prevent a trash fire.
Make sure fireworks are legal in your area before buying or using them.
The Brutscher Law Office hopes everyone has a safe and fun holiday weekend. By following these simple rules you can reduce or eliminate the risk of a fireworks injury ruining your holiday fun.
Posted on June 28th, 2016 No comments
According to the National Safety Council, 16 young children have died of heatstroke this year after being left or trapped in vehicles. During the same time period last year, 8 children had died. The stories seem endless. Dozens of children die each year this way, according to NoHeatStroke.org.
In the majority of cases of child heatstroke deaths– 53% – parents simply forgot their child was in the car. It’s easier to leave a child in a car than you think. While many people would blame the child’s parent, children may sleep soundly or may make very little noise as the world around them speeds past. Many younger children may react the way many of us react to watching a TV show or movie. Quietly, sitting and watching, oblivious to our surroundings, making very little noise at all.
Add to this that many stressful parents may operate their cars on autopilot, driving the same route daily, and you have a recipe for serious injuries or deaths. However, there are steps that you can take to minimize and even prevent the risk of death.
New car seat technology is available that will sound an alarm after the driver turns off the car, reminding him or her that a child is in the back seat. SaferCar.gov offers other suggestions for keeping your precious cargo safe:
Keep a stuffed animal in the child’s seat, then move it to the front seat after you strap your child in as a visual reminder;
If your daily routine changes, always make sure your child has arrived at his destination safely;
Make sure daycare providers know to call parents or relatives if the child does not arrive;
Never leave a child alone in a car; use drive-through services and pay at the pump so you won’t be tempted to leave the child “just for a moment”;
Remember, children overheat four times faster than adults; a child is likely to die when his body temperature reaches 107 degrees, and that can happen in minutes;
Even in 70-degree weather a vehicle can reach life-threatening temperatures quickly; regardless of the outside temperature, the average increase in temperature inside a vehicle is 3.2 degrees per five-minute interval;
If you ever see a child alone in a car, call 911 immediately;
If you see a child is in distress, remove the child from the vehicle; most states have Good Samaritan laws that protect bystanders who must act to prevent the risk of serious injury or death.
Remember, that all these fatalities can be prevented if you exercise diligence and remember that the risk of harm or death is far outweighed by a few seconds of planning.