The Problem with Insurance in Automobile accidents and Semi Tractor-Trailer Collisions which Cause Serious Personal Injury and Wrongful Death

Indianapolis wrongful death attorneysIn one of my last posts, I talked about what the insurance companies do not want you to know. They do not want you to know that most, if not all persons who were driving a car, who did not drive safely (i.e. did not follow the rules of the road) who injured another Hoosier and who has been sued by that injured person has insurance to pay for the harm caused. Everyone has insurance. It is mandatory.

What you may not know is that not everyone has enough insurance to pay for all the harm they cause. For example, say you are in a drunk driving accident. Say you are hurt badly. Say the drunk driver has $50,000.00 in liability insurance to pay for they harm he caused. Your medical bills alone are $150,000.00, and that does not figure in your lost wages and your permanent injury which will not allow you to return to your old job. Ah, but you say, I was smart, I bought Underinsured Motorist Coverage (UIM) to protect myself. UIM coverage is a type of coverage you can buy that will pay for the serious personal injury caused by another who does not have enough insurance to cover your harms. Now you say to yourself, well I bought UIM insurance in the amount of $100,000. You think to yourself, well at least I have a total of $150,000.00 ($50,000 from the drunk driver and $100,000 UIM) to help me pay my bills. You call your insurance company and tell them you are making your claim for the $100,000.00 in UIM coverage you bought to protect yourself. The insurance company says, Sorry, in Indiana, we (the Insurance Companies) are protected by a law (which we lobbied hard for by wining and dining legislators and getting the kind of access to power that you Joe Hoosier can only dream of getting) which allows us to offset the $100,000 of UIM coverage you bought from us (and paid full price for) by the amount of the drunk drivers liability insurance. You say, that’s crazy, why didn’t you (Insurance Company) tell me that when I bought the UIM coverage? You get some snarky reply like because you did not ask.

You are mad so you go to a lawyer to find out your rights. The lawyer tells you that the Insurance companies influence in Indiana is strong and that they do indeed enjoy the protection of the setoff.

I am that lawyer, and I have had that conversation with many Hoosiers who just can’t believe its true. I tell them we all need to stand together against these kinds of injustice, but it is difficult to overcome the influence the insurance companies money achieves. I say lets get rid of the setoff. Let Hoosiers get the benefit of what they thought they were buying to protect themselves.

Tell Jurors The Truth

Indianapolis Personal Injury AttorneyI represent people who have suffered serious personal injury or wrongful death in car accidents, drunk driving accidents, trucking accidents, construction accidents, and really any type of case where a Hoosier is injured as a result of another person who is not responsibly careful. When we ask a jury to help us decide whether the person was not responsibly careful, and if so, what the compensation is for the injured Hoosier, we face a lot of prejudice. The insurance industry has done an effective job convincing the public that anyone who has been injured because another person was not responsibly careful, and who asks that person to be responsible for making up for the harm caused, is a cheater, out to get something for nothing.

Well, I am not going to try and convince you this is right or wrong. I am asking , however that the playing field be level at trial. To this end, I say let’s stop lying to the jury. The insurance industry has also been able to convince the powers that be that jurors are not smart enough to handle the truth, and that we must hide the truth from them. Some examples:

  1. No one can inform the jury that the defendant, if he/she has liability insurance, will not have to pay any defense costs or the judgment entered against them. This is all paid by the defendants insurance company. The insurance industry argues that if jurors know this information they will unfairly return verdicts based on that information. On the other hand, the industry is perfectly happy to benefit from the possibility that jurors may feel sorry for the defendant (they don’t want them to go bankrupt) so they do not decide a fair amount of compensation. I don’t think jurors do this either, but that’s not the point. The point is, if we are after the truth in a trial then let’s start by being honest with the jurors. Hoosiers are smart.
  2. In Indiana the Medical Malpractice Act places a cap on the amount of damages an injured person can receive, and jurors cannot be told this fact. For example, a baby is injured at birth, and the evidence shows the doctor was drunk during the delivery and that drunkenness caused the baby to be seriously and permanently injured. The jurors hear all the evidence and decide that to take care of the baby, it will cost $10,000,000.00 dollars. After they have been dismissed, the judge will have to reduce their judgment to $1,250,000.00 because state law requires the judge to do so. That law is unfair, but knowing it will not change the jurors ability to do anything about it. So, why not just tell them the truth?

We cannot achieve justice and find the truth if we are lying to the persons making the decisions. I say lets tell the jury the truth. This is not a liberal or a conservative point of view. It is just the truth.

What is a Wrongful Death Lawsuit?

What is Wrongful Death?

Wrongful death is the causing of death of another person, either through intentional acts or through negligent acts. If the acts are intentional there may be both a criminal case (for Murder) and a civil case (for damages arising from the wrongful death).

Example of a Wrongful Death Lawsuit: Intentional Act – OJ Simpson

For an example think of the OJ Simpson case.  In that case OJ Simpson was prosecuted for murder in the death of his wife Nicole Simpson and Ronald Goldberg.  He was found not guilty of those charges in the criminal case.  Then the family of Ron Goldberg sued OJ Simpson in a civil case for wrongful death.  They won and received a judgment against Mr. Simpson.  That judgment remains unpaid because Mr. Simpson claimed he did not have the money to pay it.

Does Insurance Cover Wrongful Death?

You may be wondering why Mr. Simpson’s insurance company did not pay the judgment.  The reason is that insurance policies exclude coverage for intentional acts, and as the families proved that Mr. Simpson intentionally caused the wrongful death of Mr. Goldberg, the insurance company was not required to pay.

Examples of a Wrongful Death Lawsuit: Negligent Act

As we stated earlier, Wrongful death can also be caused by negligent acts.  Negligent acts are acts that are not intentional, but result from a person not being careful.  Examples of negligent acts include drunk driving, running a stop sign, driving a semi tractor-trailer without performing proper maintenance, not following the safety rules on a construction site.  There are many, many example of negligent behavior.   The wrongful death claim is controlled by the Indiana Wrongful Death Statute (IC 34-23-1-1, IC 34-1-1-2, and IC 34-23-2-1).  Potential damages arising out of wrongful death include the loss of wages of the deceased, medical bills to treat the deceased’s last illness, burial and funeral expense, loss of love and affection and attorneys fees. The persons to who these damages flow are the spouse and children of the deceased (if the children are 18 or younger or full time students up to age 23) and any person who is dependent upon the deceased.

Need Help Filing A Wrongful Death Claim in Indiana?

There are a great many other legal variables at work in any claim where a person dies as the result of another’s negligence.  If you are struggling with the wrongful death of a loved one, or know someone who is and you have questions, or need help, please contact us today.  We charge no fee for the initial consultation and we will come to your home or any location you feel is best.

Wrongful Death of Teen Drivers

Auto Accident AttorneysA week ago I penned a blog entry about texting and driving.  We see it all the time in our practice causing all kinds of serious personal injuries to our clients.  I wrote that teens seem to be more aware about the dangers of drunk driving accidents and are using good judgment in using cabs or designated drivers.  I also talked about the dangers texting and how it causes the driver to have the same attentive cognition as a drunk driver.  Unfortunately my worries were confirmed by a study released by the Governors Highway Safety AssociationApparently in the first half of 2012 traffic deaths among drivers ages 16 and 17 increased sharply in Indiana.  The statistic is frightening, in January 2011 we lost 3 souls, in 2012 we lost 16 children of Hoosier families.  The report  places blame at the altar of the distracted driver.  This includes texting drivers.  We can’t blame this increase on texting alone, but it is a significant contributing factor.  Think about it, we take an inexperienced driver operating a 2000 pound torpedo and then we mix in a cell phone for texting.  It is a recipe for disaster

The government is doing what it can to address this health issue, but as I stated before, we cannot rely on the government to fully address this problem.  Parents, talk to your children.  Show them these statistics.  Teachers, talk to your students, show them these statistics. In order to reduce or eliminate these problems, it will take a village to educate our children. 

Let it start with me and the example I set.  I pledge not to text and drive.  I pledge to speak with my children.

Motorcyclist, Trucks and Wrongful Death

 It is a fact of life, the rule of gross tonnage.  This means that in a collision the vehicle with the highest gross tonnage is going to prevail.  In the situation involving a motorcycle accident with a truck, the motorcyclist is in the greatest danger of serious personal injury or wrongful death.   This is why it is so important for trucks to follow all safety rules and regulations to make sure their trucks are safe for operation on the road.  It can fairly be said that truck failures have much to do with a failure of proper maintenance and inspections.  It is not acceptable that a trucks brakes fail.  It is not acceptable for two reasons, the first is that with regular maintenance, a trucks brakes will not fail.  The second is because the harm a truck can do to a passenger in a car, or a rider of a motorcycle can be catastrophic.  The damage is easy to imagine, broken bones, spinal cord injuries resulting in paralysis, brain injuries, amputations and wrongful death.  It is hard to imagine having to endure these damages simply because the trucking company was taking short cuts and endangering people’s lives.

Just such a motorcycle crash happened in Indianapolis yesterday.  The motorcyclist was exiting I465 onto west bound 56th street.  The motorcyclist had the right of way.  As the motorcyclist entered the intersection, a box truck operated by Christopher Schell, of Kokomo, entered the intersection and struck the motorcycle causing the wrongful death of the rider.  The truck was apparently towing a trailer and could not stop.  Clearly it is foreseeable that if you increase the load a truck is pulling or carrying, you are going to increase the stopping distance and the pressure on the brakes.  Although it is not yet known whether the brakes did not respond properly or the driver did not properly judge his stopping distance.  In either event, an avoidable collision occurred and resulted in the wrongful death of an innocent Hoosier.  Our sympathies go out to the family for their loss.

Motorcycle Helmets and Serious Personal Injury or Wrongful Death

         I am always amazed at people I see riding bikes and scooters and motorcycles without helmets. I am even further amazed and how strongly some of these people feel about laws requiring the use of helmets.  A couple years ago, the Indiana legislature was all set to pass a mandatory helmet law.  On the day of the final vote several hundred motorcyclists filled the halls of the state house to voice their opposition to mandatory helmet laws.  I understand smaller government, but I do not understand not wearing a helmet.

In what must be one of the most ironic stories of the year,  Police say a motorcyclist participating in a protest ride against helmet laws died after he flipped over the bike’s handlebars and hit his head on the pavement. 55-year-old Philip A. Contos of Parish, N.Y., was driving a 1983 Harley Davidson with a group of bikers who were protesting helmet laws by not wearing helmets. He hit his brakes and toppled over the handlebars. He was pronounced dead at a hospital. Troopers say Contos would have likely survived if he had been wearing a helmet.  We are saddened for Mr. Contos’ family.  However, this story is a teaching moment.  Helmets prevent more serious injuries.  Helmets are comfortable.  Helmets should be worn at all times.

I often wonder if the same folks who do not want to be told by the government to wear a helmet, have any objection to receiving social security and Medicare for the rest of their lives after a severe brain injury in a motorcycle accident.  After all, for the rest of their lives the Government they did not want telling them what to do, will be telling them what to do for the rest of the lives.

Texting and Driving, a Recipe for Serious Injury and Wrongful Death

 A few days ago we wrote about the dangers of distracted driving.  In that discussion we talked about texting and driving.  Well, one of our own brought home the importance of the discussion yesterday. Lucas Harrison of Richmond just had to get that last text out.  He was driving his car in Richmond, and texting in violation of the new anti texting law.  He was distracted from his duty on the road to pay attention by his texting.,  the next thing he knows he is driving through a medical building and coming out on the other side. The good news is that no one was injured.  Mr. Harrison’s car is a total loss, and the building requires big repairs.  All because Mr. Harrison was distracted while driving.

If you doubt how dangerous texting and driving is Mr. Harrison could come to your home and give you a firsthand demonstration.  Imagine if someone had been sitting in that building in Harrison’s path.  Imagine it was a mother and two children.  Imagine it was you and your children or grandchildren.  Mr. Harrison’s thoughtless actions could have resulted in the wrongful death of fellow Hoosier.  It could have resulted in serious personal injury such as  spinal cord injury, brain injury, broken bones, paralysis.  It could have wiped out a family or taken the bread winner from their family.  No good comes from texting and driving.  It is a selfish and thoughtless act.  It demonstrates a complete lack of concern for the welfare of our fellow Hoosiers.  Mr. Harrison, you were lucky. Take this opportunity to make a difference.  Never text and drive again.  Do what you can to get this message out.

Indiana’s Wrongful Death Statute

At Young and Young we represent Hoosier families who are coping with the tragedy of the wrongful death of a loved one.  These are particularly hard times for families who lose the bread winner.  Even more distressing is the loss of the love, affection and guidance of a family member.  The Indiana Wrongful Death Act is the statutory law that controls a case when the family loses a loved one to wrongful death.  For the purposes of this statute, it matters not how the accident occurs.  In many instances the wrongful death is the result of a drunk driving accident, a highway accident, or a big truck accident.  However, we also see wrongful death accidents from construction accidents, falls and other accidents.

We set out for your convenience the Indiana Wrongful death statute as follows:

34-23-1-1 Death from wrongful act or omission

Sec. 1. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefore against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission. When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years, and the damages shall be in such an amount as may be determined by the court or jury, including, but not limited to, reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission. That part of the damages which is recovered for reasonable medical, hospital, funeral and burial expense shall inure to the exclusive benefit of the decedent’s estate for the payment thereof. The remainder of the damages, if any, shall, subject to the provisions of this article, inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased. If such decedent depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him, the damages inure to the exclusive benefit of the person or persons furnishing necessary and reasonable hospitalization or hospital services in connection with the last illness or injury of the decedent, performing necessary and reasonable medical or surgical services in connection with the last illness or injury of the decedent, to a funeral director or funeral home for the necessary and reasonable funeral and burial expenses, and to the personal representative, as such, for the necessary and reasonable costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney’s fee, and in case of a death under such circumstances, and when such decedent leaves no such widow, widower, or dependent children, or dependent next of kin, surviving him or her, the measure of damages to be recovered shall be the total of the necessary and reasonable value of such hospitalization or hospital service, medical and surgical services, such funeral expenses, and such costs and expenses of administration, including attorney fees.

The claim must be brought by a person appointed by the Court to bring the claim.  This person is called the administrator and is usually the spouse, parent or sibling of the deceased Hoosier.  The administrator may seek assistance from an attorney to file the proper paperwork and pursue the claim.  Remember, the person whose negligence caused the wrongful death is covered by insurance which is responsible for paying the fair compensation the family of the deceased deserves

Wrongful Death Claims in Indiana

We read it about it constantly: a motorist killed in a car crash, a motorcyclist killed in a crash, a construction worker killed on the job site, a child dies because a toy becomes lodged in her throat or his head becomes wedged between the bars of his crib.  As we have said before the purpose of the tort law (The law which helps people who have been hurt or killed by another person’s negligence) is accident, injury and death prevention.  It is only when the law fails in its original purpose that we turn to its secondary purpose, compensation for the harmed or killed individual.  When a person has been negligent (a person fails to use reasonable care when, for example they run a stop sign or a stop light, or fail to follow safety guidelines on the work site like OSHA rules and regulations.  A person can be negligent and not mean the harm.) and injures or kills another person the negligent person is responsible for making up the harm to the injured or killed person.  That’s what compensation means, to make up for.

In the case of the person who is killed because of the negligence of another, the law provides compensation through the “Wrongful Death Act”.  This is a set of statutes (laws enacted by the legislature) which creates the ability of the killed person’s family to be compensated for that person’s death.  Before this set of statutes was passed, there was no compensation for the death of a family member.  If the breadwinner was killed, the family either made do, or they suffered economically.  The law gave no remedy at all for the loss of the love the deceased person gave.  The law used to be that if a child was negligently killed, the parents were entitled to nothing.  In fact the law considered the parents lucky because they no longer had to pay for raising the child.

Recently, (in the law recently was within the last 50 years)  the people of Indiana spoke out against the injustice of these laws.  The Indiana legislature listened and passed the wrongful death act.  The statutes can be found in title 34 of the Indiana Code.  These statutes allow, as compensation for the death of a family member, the recovery of the medical bills for the dead persons last injury or illness, funeral and burial costs, lost support to the family the person would have provided in the way of lost wages or other support, finally the family is entitled to recover for the loss of affection love and guidance the person would have given the family.  Take for example the preteen girl, who has all kinds of questions about becoming a woman.  Her mother guides her, and teaches her, and helps her through the anxiety of that awkward time.  The mother’s guidance has real value and her loss causes a real loss.  The negligent person is responsible for making up for all those harms.  Remember what your parents taught you, and what you teach your children, if you break something, you take responsibility and see that it is repaired.  Asking the negligent person to do that is right and just.

A child’s loss for love and affection has been capped, In Indiana, at $300,000.00.  This is an arbitrary amount set by the legislature.  Look at your child, imagine the worst and tell me $300,000.00 is not insulting.  However, that is the current state of the law. The statute allows for compensation for the adult without dependents.  An adult, who dies without dependents (No children or spouse or other person who depends on him financially), the persons parents or non dependent children may be compensated for the loss of the deceased person’s love and affection.  This is limited to $300,000.00.

Our office has more than 55 years of experience handling wrongful death cases.  Please call us for advice in your time of need.

NOTICE: No face-to-face meeting needed. You can remain safely in your home from case signup to settlement.