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Articles Posted in Personal Injury

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By Kyle Roby
English, Lucas, Priest and Owsley

emergency-room-photo-300x199When you are injured in an accident, you may sue to recover the costs of reasonable and necessary medical treatment following the incident. How do you determine what those costs are and the reasonableness of them? Is it the medical bill itself? Is it what your health insurance paid? Is the other side entitled to a credit or set-off if the cost of your medical bills are reduced by insurance payments or the hospital charges a different rate for your health insurance? These are some of the questions you may have when trying to determine what is the reasonable cost of medical treatment in a personal injury case.

In most states, Courts will follow what is known as the collateral source rule. The collateral source rule is a rule of evidence that prohibits the admission of evidence that the plaintiff or victim has received compensation form other than the damages sought against the defendant. Typical examples of a collateral source are medical bills paid by health insurance or payments made by workers compensation.

Recently, the Tennessee Supreme Court was faced with the question of what was the reasonable cost for medical services in personal injury cases. This case, Dedmon vs. Steelman, is an important win for Tennessee patients and personal injury victims. The Tennessee Supreme Court heard the case in April and issued a ruling on November 17, 2017.

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street-building-construction-industry-300x200When a person who is injured due to another party’s careless conduct files a lawsuit, he or she may expect the matter to be concluded either by a jury trial or by a settlement.

However, a significant number of Kentucky personal injury cases – especially premises liability lawsuits arising from slip and falls, trip and falls, and fall down accidents – are resolved via a motion for summary judgment.

By granting summary judgment, a trial court is saying, in essence, that even if everything the plaintiff says in his or her complaint is true, the defendant is entitled to a judgment as a matter of law. Summary judgment is only appropriate in situations in which no genuine issues of material fact must be resolved in order for the issues to be decided.

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bicycleBy Kyle Roby
Attorney and Partner
English, Lucas, Priest and Owsley, LLP

Each state has its own rules as to how to handle a case in which both the plaintiff and the defendant are alleged to have been negligent in causing an accident. In a Kentucky car wreck case, the law of pure comparative fault applies. (In some other states, the rule may be modified comparative fault or pure contributory negligence.)

Under the doctrine of pure comparative fault followed in Kentucky, the plaintiff can recover money damages from the defendant as long as he or she is not found to be 100% at fault; however, he or she is only entitled to recover the percentage of total damages attributed to the defendant’s negligence.

Such cases are often hotly contested, since each party may try to pin all or most of the blame for the crash on the other side.

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city streetFiling a personal injury lawsuit against a city can be very tricky. If certain rigid procedural requirements are not met, a plaintiff’s case can be dismissed even if a city was clearly negligent.

This is one of many reasons why it is best to consult an attorney as soon as possible after being involved in an accident. Unlike the average citizen, experienced Kentucky premises liability attorneys are well-versed in the area of negligence litigation, including the special rules that apply in cases involving a city.

Facts of the Case

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Kentucky auto accidentKentucky is a no-fault insurance state. This simply means that each party in a Kentucky auto accident case must first seek payment of medical expenses up to $10,000 from their own insurance companies through a claim for basic reparations benefits (also known as personal injury protection – or PIP – benefits). If a person sustains serious injuries, it is usually still possible to pursue compensation from the negligent motorist.

Facts of the Case

In a recent (unreported) case appealed from the Jefferson Circuit Court, the insured motorist was a woman whose vehicle was struck from behind in a multi-car accident in May 2015. At the scene, the insured motorist did not report any injuries, but there was minor damage to her vehicle’s rear bumper. The insured motorist later sought chiropractic treatment for injuries she alleged resulted from the accident, submitting the bills to the insurance company for payment under her basic reparation benefits (BRB).

The insurance company did not pay the insured motorist’s medical expenses, instead filing a petition to compel the insured motorist to give a pre-litigation deposition. The insured motorist filed a counterclaim, alleging that the insurance company’s refusal to pay her medical expenses immediately was a violation of the Kentucky Motor Vehicle Reparations Act. The circuit court found that the insurance company had shown good cause for its request for a deposition and ordered the insured motorist to comply within 30 days. It also dismissed the insured motorist’s counterclaim.

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People who must rely on PIP benefits available under a policy of uninsured motorist coverage following a Kentucky hit and run accident are often surprised at how contentious the process of obtaining fair compensation can be.

It might seem that the insured person and the insurance company are “on the same side,” especially if the claimant has been faithfully paying his or her premiums for many years. The truth is that an insurance company is still an insurance company. It does not matter whether a claim is paid out under a UM/UIM policy or a liability policy; the company will still do everything it can to limit the amount paid out.

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pumpkins

In a recent Kentucky premises liability case, a store in which a customer tripped and fell on a pallet underneath a container of pumpkins insisted that the customer’s fall was his own fault. The trial court agreed and granted summary judgment to the store.

Fortunately for the customer, the appellate court understood that the question was not as simple as the store made it out to be. Yes, the large box of pumpkins was clearly visible – but the wooden pallet beneath it was not necessarily noticeable to the customer under the circumstances.

Facts of the Case

In a recent unpublished Kentucky Court of Appeals case, the plaintiff was a man who tripped and fell while shopping for groceries at a store in Lexington. At the time of his fall, the man was carrying a handheld shopping basket that obscured his view of the corner of the pallet upon which he tripped. The accident caused extensive injuries to the plaintiff’s shoulder and knees, causing him to undergo multiple surgeries. He filed a premises liability lawsuit against the store, alleging that his injuries were a direct and proximate result of the store’s negligence and failure to keep the premises safe for business invitees. He sought to recover compensation for his medical costs, his lost earnings (past and future), and his pain and suffering.

The Fayette County Circuit Court granted summary judgment to the defendant and dismissed the plaintiff’s personal injury action.

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review of judgment

When a person is injured due to the negligence of another party, the injured person is entitled to pursue fair compensation for his or her injuries. In determining the amount due to a Tennessee car accident claimant, the court may consider the victim’s past and future medical expenses, lost wages, pain and suffering, loss of ability to enjoy life, permanent impairment, and other factors.

If the case is tried to a jury, the jury members make this determination. If the trial court judge hears the case without a jury, he or she makes the determination.

Either way, if one party or the other is aggrieved by the amount of damages awarded by the trial court, there is the possibility of having an appellate court review the award.

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crutches

Kentucky is a “no fault” insurance state. While this does not mean that a person hurt by another person’s negligence can never seek compensation following a motor vehicle accident, it does provide that certain minimum benefits must be available to those who purchase automobile insurance, without regard to fault.

The idea is that injured individuals who suffer only minor injuries will have their medical expenses paid through their own personal injury protection (PIP) or basic reparations benefits (BRB), thus discouraging lawsuits.

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eclipse drivingOn Monday, we will have an unusual opportunity here in Bowling Green and all of South Central Kentucky: we will be a prime viewing area for the solar eclipse.

This is incredibly exciting, so much so that schools are closed, local hotels are full and many special events are planned. Traffic is expected to be extremely heavy in our area as people make their way to prime viewing spots. Southern Bowling Green is expected to be one of the places that will experience totality – a total eclipse – along with Hopkinsville, which is touting itself as the point of the greatest eclipse and “eclipseville.”

Nashville, too, will have great views, so you can expect plenty of traffic between Bowling Green and Music City as well.

 

 

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