I WAS THE DRIVER IN A CAR WRECK, WHAT SHOULD I DO?
It is very important that any person injured in a motor vehicle accident take the necessary steps to ensure that their medical bills are paid and they have an opportunity to recover for their pain and suffering. This article deals with drivers of vehicles only. Injured passengers may be able to recover from the insurance on both drivers’ cars and should discuss the matter with an attorney. The following questions would be asked by an attorney evaluating your case:
- Was the accident your fault? (Rarely is any accident 100% anybody’s fault.)
- Did the other party have insurance? (This will be indicated on the police report. If you do not have a police report, you can call the police department which investigated your accident to obtain one or your attorney will do that for you.)
- Am I injured? (This may take a few days to determine.)
- Can I still go to work tomorrow?
The first question you must answer is was the accident my fault? Kentucky is a comparative fault state, meaning that each driver’s actions are compared to determine a percentage of fault for each driver. (This is why an attorney is so important.) If you were at fault, you will be limited to your own insurance coverage. If you are insured in Kentucky, that means that the first $10,000.00 of medical bills and/or lost wages will be paid by your own automobile insurance company. (This is true whether or not you are at fault.) Whether you were at fault, contact your own insurance company immediately to begin the process of paying your medical bills and lost wages or defending you against the other driver.
If you are not at fault, the person at fault, may be liable to pay your bills and pain and suffering. That brings you to the next question, does that person have insurance. As a practical matter, it is very difficult to ever collect money from an uninsured person unless they are wealthy. If the person is uninsured and has no money, you cannot usually collect from them. This is why it is illegal to drive a vehicle that is not insured.
The third question is are you injured? If you are not injured, you only need compensation for the damage to your vehicle from your own insurance company or the party at fault’s insurance. If you are injured, you should seek medical treatment immediately. (Remember your automobile insurance pays the first $10,000.00 of medical bills and lost wages.) Follow your physician’s advice to heal as quickly as possible. If you are injured, you should also contact an attorney to ensure that you know your rights as an injured party. It is best if you contact an attorney before contacting any insurance company, if possible, to ensure that you do not take actions that may damage your potential case. The attorney, if needed, will contact your insurance company to ensure that the bills are paid for your medical treatment.
The fourth question is can you go to work? As outlined above, the $10,000.00 coverage by your own insurance company is not just for medical bills, but lost wages as well. Medical bills and lost wages together are paid up to a total of $10,000.00, not $10,000.00 each. Your insurance company will forward forms to your attorney, or you to begin the process of paying your lost wages caused by the accident.
When your medical treatment concludes and you are returned to work, your attorney will advise you as to the potential for success of your case. Together, you will then make the decision as to whether to attempt settlement with the party at fault or to file a lawsuit. Many factors go into that decision that cannot be fully discussed here. Remember to read STATUTES OF LIMITATION: WHAT ARE THEY AND WHY DO WE HAVE THEM? In the FAQ’s section as there are time limits on filing a lawsuit.
THIS INFORMATION IS NOT A COMPLETE LEGAL OPINION OR LEGAL AUTHORITY AND IS INTENDED ONLY TO GIVE A BRIEF OVERVIEW OF THE TOPIC. If you have specific questions or need legal representation, please contact Shane Romines or Martha Copeland at 606-523-5100 or e-mail us.
POWERS OF ATTORNEY, WHAT ARE THEY? DO YOU NEED ONE?
Definition: A Power of Attorney allows you to select another person to act for you in conducting business or making health decisions.
One hard reality of an aging population is that the chance of disability or incapacity requiring a Power of Attorney (POA) increases as you get older. A POA may also be beneficial to those who are not elderly. There are many situations such as accidents, medical procedures, etc. in which a power of attorney can be useful. If you have children, a POA can make sure that your transactions, both personal and financial, can be taken care of if something should go wrong.
The traditional POA is executed when a person wishes to allow someone else to handle his or her transactions and daily activities. Typically, this POA is executed in the hospital bed or after being informed of a terminal illness. It is used by married couples or aging parents to allow their children to make decisions for them. This traditional POA becomes effective immediately upon signing and must be recorded in most counties to be used to transfer property, etc.
The traditional POA is the one most people recognize. It is usually the case that the document is not executed until absolutely necessary because the person is afraid or uncomfortable with the idea of turning over control of their finances and property to another person. This is where the Springing Power of Attorney comes in.
The Springing Power of Attorney (SPOA) is created by Kentucky statute and allows young, healthy people to plan for the future and provide for their well-being. The SPOA works in the following way. For example, you and your wife are in your mid-30s and have two children. You know that disability due to age is likely not in your immediate future. However, you also realize that life has risks and no guarantees. You decide to execute a SPOA. The SPOA does not become effectiveuntil you are determined to be disabled or incapacitated either by the terms of the SPOA or by meeting the statutory requirements. You may choose the physician who can determine you disabled, or leave it in the hands of any licensed physician. Such power gives you the assurance that the power will not be abused. The SPOA stays on file until it is needed and gives you the security of knowing that the person you choose cannot transfer such authority unless you are truly disabled.
The SPOA or POA can be combined with Wills, Living Wills, and Trusts to provide you with the complete estate plan for yourself and those you will leave behind. Death is never a comfortable subject, but preparing now will eliminate much of the confusion and emotional trauma on the family. Call us today to set up an appointment to discuss your estate planning. (606)523-5100 or Toll Free 1-877-524-5100.
SHOULD MY BUSINESS BECOME A "COMPANY"?This is a question that often comes up when you have a small business and you are running it in your own name, or an assumed name. Do I need to be a Corporation, Partnership or Limited Liability Company? Are there benefits of becoming a “Company”?
The answer is it depends. There are significant benefits to making your sole proprietorship a business organization such as one of the above. The main reasons that people set up a business structure are the tax benefits and protection from personal liability in the event of a lawsuit. While your accountant is the expert on tax benefits, the legal benefits are many. First, did you know that if someone is injured on your property and you are a sole proprietor that your business is liable for their injuries? Most people do, but what they do not realize is that their personal assets, ie. homes, cars, boats, checking accounts, etc. are also reachable in a lawsuit. Setting up a business structure may protect your personal assets from a lawsuit against your business.
The protection offered is protection when your employee or business injures someone or someone falls on the premises. If the owner of a business injures someone in a car wreck, both the individual and the business will still be liable. However, if an employee injures someone, the owner’s personal assets can be protected with the right business structure. Thus, in order to protect your personal assets, it is smart to set up a business and eliminate your sole proprietorship. Which business structure do I choose?
There may be reasons to form a corporation, but for most small businesses the Limited Liability Company is the best choice. It offers protection from lawsuits dealing with injuries or contract disputes and allows you to choose how you want to be taxed for the maximum tax benefits. Speak with an attorney to consider the business form that is best for you. Then speak with an accountant regarding tax issues and decide if your business should become a “company”.
STATUTES OF LIMITATION: WHAT ARE THEY AND WHY DO WE HAVE THEM?Did you know that there are time limits on filing a lawsuit? In fact, each state limits the amount of time you have to bring suit by their specific statutes. Most of the time, the amount of time you have depends on the type of lawsuit you are bringing. Some claims only give you one year, others two, some five or fifteen years. Why a cutoff? The two main policy reasons behind statutes of limitation are judicial efficiency and peace of mind for potential defendants. The court can limit the burden on its docket by disposing of cases which are brought too late and the potential defendant can get peace of mind. If there was no limitation on suits, businesses could not invest and individuals could not sleep well with such a threat hanging over their head. Thus, the statute of limitation gives a plaintiff a reasonable time period in which to sue and then provides protection for the potential defendant. What are the Kentucky statutes of limitations? In a typical car wreck which results in physical injuries may be brought within either two years of the accident date, or two years following the last (PIP) benefit payment. In workers’ compensation, the applicable statute is two years from the date of injury, or two years from the last temporary total disability payment. Many property damage claims may be brought in one or five years. Medical Malpractice or other claims may depend on when you “should have known” of the effects.
***These statements are not to be used as a substitute for legal advice. If you have questions regarding your specific case, call us at (606) 523-5100, or toll free 1-877-524-5100.
THE BANK STILL HAS NOT RELEASED MY MORTGAGE, WHAT CAN I DO?Unfortunately, this is an all too common question, especially when dealing with large banks or mortgage companies who have no local branches. If your loan on real estate has been paid off, Kentucky law states that the lien (mortgage in this case) must be released within thirty (30) days. If it is not, you must send the bank “written notice” that the mortgage needs to be released. While “written notice” is not further defined by the courts at this time, certified mail is your best bet. After receiving written notice, the bank has fifteen (15) more days to release the mortgage lien without incurring a penalty. However, on the 16th day, the penalty is $100 per day for thirty (30) days and then $500 per day until the mortgage is released.
As one can imagine, this can add up quickly. In fact, our office alone has collected hundreds of thousands of dollars for clients this year alone. There are some things that you should be aware of when considering whether or not you have a claim against a bank. One, has the mortgage been released? (If so, you may not have a claim) Two, was the mortgage one for real estate? (Car loans, personal loans, etc. do not apply, only liens on real estate) Three, is my mortgage fully paid off? (There must be no further obligation owed by you in order for the bank or lienholder to release the lien) Four, have I provided written notice, which I can prove with the document? Remember, written notice triggers the time and penalties.
If the mortgage has not been released and the answers to questions two and three are yes, you need to send written notice. Your attorney can help you send proper written notice and we encourage you to engage an attorney from the beginning to protect your rights and cover all the bases as this is a complicated and precise law. Once the written notice is sent, the bank must release the mortgage within 15 days to avoid paying you a penalty. If you believe you may have a case, quickly contact us at 606-523-5100 or 877-524-5100 or e-mail us.
***Please note that the law applies to any lienholder on real estate, not just banks. However, banks or mortgage companies are the most common lienholders on real estate***
HOW DOES WORKERS' COMPENSATION WORK IN KENTUCKY?
The Kentucky Workers’ Compensation law can be found in Chapter 342 of the Kentucky Revised Statutes. It is intended to compensate injured employees for their loss of wages, as well as to cover medical expenses due to work-related injuries. Thus, one must be injured while at work or performing duties of their employment in order to be compensated.
The first step for an employee injured on the job is to give notice to the employer. Failure to give timely notice may significantly impair your chances of recovery. The employer will fill out an accident report and report it to the employer’s insurance carrier. If the injured employee is taken off work by a physician for more than fourteen (14) consecutive days, the injured employee will automatically begin to receive payments of 2/3 of his/her average weekly wage. These payments are known as Temporary Total Disability payments or TTD. They will continue until your doctors says you can return to work or until the doctor reports that the employee has reached maximum medical improvement (As good as you are going to get). All medical bills related to the injury should be paid by the employer or its insurance carrier.
The injured employee must determine whether or not he/she has a permanent impairment due to the injury which will justify filing a workers’ compensation claim. The injured employee should obtain an impairment rating (percentage) from his/her physician. The employer will usually require an examination from the employer’s physician. Once an injured employee has an impairment rating, he/she can negotiate with the employer or the employer’s insurance carrier for a settlement. This can be done with or without an attorney, but having an attorney is highly recommended to ensure that both sides understand the process and calculation of any settlement.
There is a time limit on such claims. As a general rule, from the date of injury, the injured employee has two (2) years in which to file a claim with the Department of Workers’ Claims. There may be an extension of time if the injured employee misses a certain amount of work and is paid Temporary Total Disability (TTD) benefits due to being taken off work by a physician. In such case, the time limit may be extended until two (2) years have passed from the last TTD payment.
If the injured employee does file a claim with the Department of Workers’ Claims, a Benefits Review Conference with an Administrative Law Judge will be scheduled in which the specifics of the case, income, injuries, settlement offers, etc. will be discussed. If the case does not settle at that point, a final hearing will be scheduled and the judge will decide what benefits the injured employee will receive.