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Articles Tagged with car accident

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Car accidents fall under an area of tort law known as “negligence.” To make out a successful case, a plaintiff must prove four things:  1) the defendant owed him or her a duty of care, 2) the defendant breached that duty, 3) the plaintiff sustained actual damages, and 4) the plaintiff’s damages were caused by the defendant’s breach of duty. It seems simple enough, right?

Unfortunately, many cases are not as simple as they initially seem. Issues such as comparative fault – an allegation by the defendant that the plaintiff is responsible for some part of the accident – can quickly complicate matters. The resolution of such issues often depends upon the law of the state in which the wreck occurred. This Tennessee car crash case is an example.

Kentucky is one of about a dozen states that follow the “pure comparative fault” doctrine, under which a plaintiff’s damages are reduced in proportion to his or her fault, but he or she is still allowed to recover against the defendant for the defendant’s percentage of fault. In Tennessee, however, the rule is one of “modified comparative fault,” with the plaintiff only being allowed to recover if his or her fault is less than 50%. If the plaintiff is found to be 49% at fault, he or she can recover 51% of his or her total damages, but there is no recovery at all if the parties are determined to bear equal fault.

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Most drivers carry at least some uninsured/underinsured motorist protection, but many do not understand the difficulties that may arise when it comes time to make a claim under this coverage. Unfortunately, simply having an accident with an uninsured or underinsured motorist does not automatically result in a payout by the insurance company, even when the insured’s injuries are catastrophic or fatal.

Instead, the insured person (or his or her family, in the event of a wrongful death), must negotiate a settlement with the insurance company or proceed to trial against the uninsured person and obtain a verdict. Even then, the insurance company has a right to appeal the verdict on the grounds that it was improper or excessive. This is exactly what happened in the recent Tennessee case of Monypeny v. Kheiv.

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Bad Faith claims against a person’s insurance company occurs when the insurance company isn’t negotiating fairly with its customers. These claims are often when someone feels they are not getting a settlement offer that’s close to what it should be, or sometimes used when someone feels their insurance company isn’t paying a claim that it should. Insurance companies are legally required to negotiate fairly – in good faith – with its customers.

It’s hard even for an experienced attorney to prove exactly what a valid bad faith claim is. How do you prove a person’s, or company’s, intention? Such cases demand an experienced attorney.

A recent Kentucky Court of Appeals case helped set standards for bad faith claims. The case of Samantha Hollaway v. Direct General Insurance Company of Mississippi Inc. involves a parking lot collision in Lexington, Kentucky. Hollaway alleges another driver backed out of a parking spot and hit her; the other driver says Hollaway hit him. Hollaway received a check for damages to her car from Direct General, which amounted to less than $500. She also wanted $125,000 in medical damages, or up to the limit of the other driver’s insurance policy. The insurance company reviewed the case and offered $5,000, based on medical records that indicated she had some damage to her back but she also had pre-existing back problems. The insurance company indicated it was not sure if the damages were the result of the accident or were from previous problems.

Hollaway was not satisfied with the offer, and instead filed suit against the other motorist and Direct General. The insurance company offered Hollaway $22,500. Hollaway filed a bad faith claim against the company. Her argument was that she was not offered the higher amount until she filed suit and that the insurance company negotiated in “bad faith” with her.

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Our firm often represents plaintiffs injured in car, truck or tractor-trailer accidents. The injuries from these accidents can be catastrophic or event fatal. The damage to vehicles is often very costly.
Almost everyone has to deal with the results of a traffic wreck at some point. How you handle it can determine much about your financial future. If you accept the first settlement offered by an insurance company, you’re giving up your rights to examine the case, and your rights to fight for payment for the health care you’ll receive and compensation for lost wages and other issues that may result from the accident. In fact, taking some time to let an attorney examine your case gives you time, too, to see how extensive recovery will be from your accident and helps you better negotiate for compensation for the physical problems you may experience down the road that aren’t evident initially.

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