Tuley Law Newsletter

Statutory Liens and Subrogation Claims

2009-03-09T05:18:37+00:00

Statutory Liens - Medicare, Medicaid and Indiana Worker's Coverage

Subrogation Claims - Health Plans and Automobile Medical Payments Coverage

A lien is defined as a statutory right to enforce a charge upon property of another for payment or satisfaction of debt or claim. A subrogation claim is defined as the lawful substitution of a third party in place of a party having a claim against another party.

Example:

An injured party is involved in an automobile accident caused by the fault of another. His health plan or automobile insurance carrier pays his medical bills for accident related treatment. Since he has a right to recover damages from the party at fault, his health plan or automobile insurance carrier stands in his shoes and has a right to recover amounts paid by the insurance carrier for the party at fault. If Medicare or Medicaid paid the medical bills, either would have a statutory lien against any third party recovery. The amount subject to reimbursement is reduced by a pro rata share of attorney fees & legal epenses incurred in prosecution of the claim. Further, under Indiana law, if the total amount of damages recovered is reduced by limited liability insurance coverage or comparative fault on the part of the accident victim, the lien or subrogation claim is reduced by a pro rata amount.

The Use of Medical Illustrations to Depict Injuries

2008-06-01T10:48:00+00:00

Where catastrophic and serious injuries are sustained, experts in the field of medical graphics are summoned to produce medical illustrations of the injuries. The above medical illustration depicts a T-12 burst fracture, surgical procedure, and placement of surgical hardware in the spinal column. It brings to life what words can barely describe.

Who is responsible for dog bites?

2008-05-27T18:45:00+00:00

Question:

Who is responsible for dog bites?

Answer:

Usually the owner but not always.

Example:

Thousands of dog bites occur every year in the United States. Legal liability is determined by state law. In the State of Indiana, every dog used to be entitled to one free bite. In other words, the owner would have to know the dog had a propensity to bite such as having witnessed the dog bite someone in the past. Recently, the Indiana Supreme Court abolished this rule in favor of a general negligence standard. Currently, all of the facts surrounding the attack have to be considered. For instance, where a dog growls at or chases someone, eventually attacking him or her and the owner has failed to restrain the dog prior to the attack, liability on the owner will usually be imposed. Further, certain breeds such as Rottweilers and Pit Bulls are held to a higher standard as a result of their aggressive tendencies. After an attack, an investigation needs to be undertaken as soon as possible. Neighbors and witnesses to the attack should be interviewed to determine whether they have knowledge of any prior attacks. In addition, medical providers are required to file an official report of an attack with the local animal control agency. Consequently, research needs to be undertaken to determine if any official reports exist for prior attacks.

Did You Know???

The retention of an economist is required where an accident victim’s earnings are permanently lost or impaired. Often accident injuries are severe enough to cause permanent functional limitations. When these functional limitations interfere with an employee’s ability to earn income, an economist is retained to calculate the loss of future income. The economic loss is calculated in terms of present day value.

Can we prove that an operator of a motor vehicle failed to stop before entering an intersection?

2008-05-27T18:44:00+00:00

Question:

Can we prove that an operator of a motor vehicle failed to stop before entering an intersection?

Answer:

Approximately seven years ago, General Motors equipped its vehicles with an electronic control module that would allow an accident reconstructionist to examine the module post accident. Many other vehicle manufacturers have recently begun installing electronic control modules on their vehicles. Examination of the module will reveal actions of the operator prior to impact.

Example:

You are driving your vehicle on a preferential road when you notice a vehicle approaching from an intersecting street. He is required to stop, but you notice that he starts to slow down and then suddenly accelerates into your path and impacts your vehicle. At the scene, he tells the investigating officer that he stopped and you were speeding. An examination of his vehicle’s electronic control module by an accident reconstructionist will reveal the speed of his vehicle and whether he actually stopped at the stop sign. In addition, an examination of your vehicle’s electronic control module will also reveal the speed of your vehicle at impact. The data is typically preserved for approximately 10 seconds prior to impact. Regardless of the other driver’s statement, you would have scientific proof of what actually occurred.

Did You Know???

You can purchase a flood insurance policy even if you don’t live in a federally designated flood zone. With the recent torrential rains, many people have experienced flooding in areas once presumed safe. A quick call to the City of Evansville Building Commission will reveal your assigned code which you can share with your local agent for a quote.

Who is legally responsible for collisions between trains and motor vehicles?

2008-05-27T18:43:00+00:00

Question:

Who is legally responsible for collisions between trains and motor vehicles?

Answer:

An investigation shortly after the accident by an accident reconstructionist will usually reveal facts that support liability determination.

Example:

Every year in the United States there are thousands of collisions between trains and motor vehicles. Usually, the driver of the motor vehicle does not survive. If the crossing is controlled by an automatic signal, the train will typically have the right of way. However, most crossings are not controlled by an automatic signal. If the collision occurs at a crossing without an automatic signal, an accident reconstructionist will need to be retained to investigate the facts surrounding the collision. As with airplanes, trains are required to have an event data recorder or “black box.” The recorder will document the speed of the train at impact, whether the brakes were applied, whether the horn was sounded, and may visually depict the collision. Trains are required to travel at posted speed limits, and their speeds can be further reduced by operational speed limits set by track volume. The train engineer is required to sound the horn at each crossing. In addition, the crossing must be free of obstructions for 1,500 feet in each direction within the railroad’s legal right of way. Violations of any of these rules will usually impose liability on the railroad.

Did You Know???

A vocational assessment is required for accident victims who have permanent injuries that may impair their ability to earn income. The assessment is performed by a vocational expert. Factors such as prior education attainment and actual work experience are used for comparison with new limitations on ability to perform work. An economist is then retained to determine the present value of the future lost earnings.

What was the speed of the vehicle that skidded into your vehicle?

2008-05-27T18:42:00+00:00

Question:

What was the speed of the vehicle that skidded into your vehicle?

Answer:

Post-accident examination of the skid marks by an accident reconstructionist will reveal the speed of the vehicle at impact.

Example:

You are stopped in traffic. An inattentive and speeding driver behind you fails to stop and slams into your vehicle. At the scene, the other driver tells the investigating officer that he was traveling at the posted speed limit, 35 miles per hour, but you know from the impact and the fact that your vehicle now looks like an accordion that he was flying. Post-accident examination of the length and character of the skid marks will reveal the speed of the vehicle at the time of initial braking and impact. An accident reconstructionist will measure the length of the skid marks and ascertain the type of road surface present to determine the coefficient of friction. For example, a vehicle with good brakes traveling on dry pavement that leaves 120 feet of skid marks was traveling 55 miles per hour.

Did You Know???

Uninsured motorist and underinsured motorist coverage is insurance you may purchase with your automobile policy that protects you from drivers who do not carry insurance or who carry insurance that is insufficient to cover the damage they cause. Unfortunately, seminars put on by traveling “financial planners” instruct people to drop this type of coverage to save premium dollars. However, the cost of this type of insurance is very nominal. Make sure your UM-UIM coverage is at least the same level of coverage as your liability limit on your automobile policy. In the event you are severely injured by an uninsured motorist or underinsured motorist, your own insurance company will step into the shoes of that driver and provide you the additional coverage to protect you.

Was the turn signal activated prior to collision?

2008-05-27T18:41:00+00:00

Question:

Was the turn signal activated prior to collision?

Answer:

Post-accident lamp examination by an accident reconstructionist can prove whether the driver activated the turn signal.

Example:

You are slowing in traffic to make a left turn. You have activated your left turn signal. The inattentive driver behind you slams into the rear of your vehicle. At the scene, the investigating officer asks for your version and the other driver’s version. The other driver tells the officer you did not have your left turn signal activated and you made a sudden stop without warning. An examination of the turn signal bulb will usually prove the existence of electrical flow at the time of impact. Most automotive bulbs have filaments made of tungsten steel; the filament reaches a temperature of approximately 4,000 degrees thereby giving off light. If the impact was severe enough to fracture the bulb, oxygen would cause the filament to quickly oxidize. Consequently, close examination would reveal the presence of tungsten oxide and/or a blackened filament. If the impact did not cause the bulb to fracture, the super-heated tungsten would be very pliable and would likely deform or change shape as a result of the impact. Therefore, you have scientific proof that the turn signal was activated prior to collision.

Did You Know???

You should have a personal liability umbrella policy if you cannot pay a million dollar claim against you. In fact, when considering costs associated with catastrophic injuries, a million dollar policy may be insufficient. Make sure your policy includes uninsured/underinsured coverage to protect you and your family members from uninsured and underinsured drivers. Your local insurance agent is the best source of information, but I would be happy to answer any questions.

What was the speed of the tractor trailer at the time of impact?

2008-05-27T18:40:00+00:00

Question:

What was the speed of the tractor trailer at the time of impact?

Answer:

Examination of the electronic control module can prove the speed of the tractor trailer at the time of impact.

Example:

You are stopped for an automatic signal at a highway intersection. The light changes to green. You look both ways and proceed into the intersection. You glance again and see a tractor trailer flying toward you. Your vehicle is impacted, and you end up with catastrophic injuries. The truck driver tells the investigating officer he was traveling 55 miles per hour, but you believe he was traveling at least 80 miles per hour. An examination of the tractor trailer’s electronic control module by an accident reconstructionist will reveal the speed of the tractor trailer at the time of impact or rapid deceleration just prior to the accident. Most heavy trucks manufactured after 1995 are likely to be equipped with an electronic control module which provides vital vehicle data similar to the “Black Box” found in airplanes. In particular, parameters such as vehicle speed, throttle position, brake pedal application, and clutch status are recorded every second. The system is electronically activated due to rapid deceleration as a result of severe impact or hard braking. A detailed analysis of the electronic control module would provide independent objective evidence of the speed of the tractor trailer.

Did You Know???

You could be held personally liable for damages caused by a guest at your party or wedding reception who became intoxicated and later caused an accident? Indiana recognizes social host liability. In other words, if you provide alcohol to a social guest who is visibly intoxicated, you could be responsible for his or her negligent acts. Before hosting a party or reception, contact your local insurance agent to make sure your homeowner’s policy covers this risk.

What if you are injured by a drunk driver?

2008-05-27T18:39:00+00:00

Question:

What if you are injured by a drunk driver?

Answer:

An investigation shortly after the accident will usually reveal where the drunk driver consumed his or her alcohol and may provide additional liability coverage for your injuries.

Example:

You are stopped in traffic on the Lloyd Expressway. The driver behind you does not slow down and slams into your vehicle at 50 miles per hour. At the scene, the officer tells you that the driver’s blood alcohol content is three times the legal limit. Your injuries are quite severe, and your medical bills total more than his minimum liability coverage of $25,000. An investigation conducted shortly after the accident can document where he drank and what he consumed. Statements should be taken of the drunk driver, witnesses at the bar, and the bartender. For example, an actual investigation of a case proved that the drunk driver was so drunk he fell off of the stool several times and the bartender had to write his check when the bill was paid. Under Indiana law, the provider of alcohol can be held liable for damages caused by a drunk driver where the provider continues to serve the customer after he has become visibly intoxicated. An admission by the bartender that the customer was visibly intoxicated is not required. Witness statements are critical. In addition, the use of a toxicology expert is encouraged to show the effects of alcohol on a person’s mental status and motor skills.

Did You Know???

A life care plan should be prepared for accident victims who suffer catastrophic injuries that require lifelong medical treatment. The plan is prepared by a Certified Life Care Planner. After reviewing all treatment records, the Certified Life Care Planer interviews all medical providers to determine the future medical needs of the patient and then prepares a plan that includes the recommended treatment and costs.