Whose Insurance Should Pay for Vehicle Repairs?

Whose Insurance Should Pay for Vehicle Repairs?

car accident, paperwork, injury, lawyer,

After an accident, a new or potential client will often ask me: “Who should handle my wrecked vehicle – my insurance company or the at-fault driver’s insurance company?”  True-to-attorney form, I often respond, “it depends.”

Assuming both insurance companies have property damage coverage, there are pros and cons to each approach. Sometimes it comes down to what is most important at that time: speed and convenience or trying to maximize every possible dollar recovered.

Even though someone else was at fault for the accident, many people will go through their own insurance company for their damaged or totaled vehicle (assuming they have purchased Collision Coverage). Collison Coverage is no-fault coverage, i.e. coverage doesn’t depend on whether you or someone else caused the accident. For this reason your insurance company (ideally) will start processing the claim right away: paying for repairs, or if your car is a total loss, paying for the actual cash value of the vehicle (minus the deductible).  If you have rental coverage, often limited to 30 days, your insurance company will handle that as well.

On the other hand, if you go through the at-fault insurance company for your damaged or wrecked car, there can be a delay in payment as the insurer will want to complete its liability investigation to make sure its insured was indeed responsible for the accident. You may have to wait for the liability insurer to speak with its insured, get police reports and maybe even require a statement from you, which can be fraught with risk. Also, there is the consideration that the at-fault insurance company is an adverse party that has no contractual relationship with you – it doesn’t have the obligation of good faith and fair dealing that you have with your own insurance company.

Given all these potential downsides, why go through the at-fault insurance company?  In addition to not having to make a claim against your own insurance company and theoretically staving off any premium increase, you can potentially recover additional types of damages against the at-fault insurance company.

Even if properly repaired, people intrinsically know that a car that has been in an accident is not worth as much as the equivalent vehicle that has not been an accident. Against the at-fault insurance company, you can pursue a diminished value, or loss of value, claim that takes into consideration that even properly repaired vehicles have diminished value in the eyes of potential buyers. Next, rental coverage with your own insurance company is limited to the coverage in the policy (often 30 days), there is a claim for “loss of use,” against the at-fault insurance company that is for the reasonable period necessary to repair the vehicle or obtain a comparable permanent replacement if your vehicle is totaled. Wis. J.I. CIVIL 1800; Kim v. Am. Fam. Mut. Ins. Co., 176 Wis. 2d 890 (1993). So, if repairs take months, the at-fault insurance company is responsible for paying for a rental or providing you the equivalent value, and you are not limited to the day or dollar limit of your own insurance policy limits

Therefore, the decision of which insurance company to go through for vehicle damage when you are not at fault for the accident, is personal and situational dependent. It is one of many things that an experienced accident attorney can help you navigate following a crash.

If you have questions, or need help following an accident, please reach out to one of our experienced accident and personal injury attorneys.


When Will I Receive My Worker’s Compensation Payments?

When Will I Receive My Worker’s Compensation Payments?

At our firm we field many inquiries from individuals who have had the misfortune of sustaining a work injury that naturally have the question:  When do I start receiving benefits from the workers’ compensation insurer?

Very broadly speaking, as every case/situation is unique, workers’ compensation benefits often break down into three main categories:  temporary disability benefits, permanent disability benefits and medical expenses. For this article the focus is on the  first category:  temporary disability benefits, which is a form of wage replacement if the injured work is either (1) completely off work – known as “temporary total disability” or (2) partially off work with reduced hours or wages – known as “temporary partial disability.” Understandably looking to make sure they can pay bills, put food on the table and maintain their life, the injured worker is often curious when and how they start receiving disability payments.

If the injured worker is completely off work, they are entitled to two-thirds of their average weekly wage, subject to a cap. (For injuries occurring after January 1, 2023, the maximum weekly wage is $1,870.50, resulting in a weekly benefit of $1,247.00) What is frequently confusing is when those benefits begin; this implicates what is colloquially known as the three-day/seven-day rule. By, Wis. Stat. § 102.43:

“If the injury causes disability, an indemnity shall be due as wages commencing the fourth calendar day from the commencement of the day the scheduled work shift began, exclusive of Sundays only, excepting where the employee works on Sunday, after the employee leaves work as the result of the injury, and shall be payable weekly thereafter, during such disability. If the disability exists after seven calendar days from the date the employee leaves work as a result of the injury and only if it so exists, indemnity shall also be due and payable for the first three calendar days, exclusive of Sundays only, excepting where the employee works on Sunday.”

What does this all mean?  In short, there is a three-day waiting period for any disabilities lasting seven days or less; if the worker misses seven days or less because of work injury, he or she does not get paid for the first three days but can be paid for days four to six. However, if the worker remains off work beyond the seventh day, the worker is paid for those first three days of missed work and the subsequent days thereafter.

Temporary total disability payments continue while the worker’s treating practitioner states that the worker needs to be off work completely because of the work injury, or, as long as the practitioner places temporary physical restrictions that the employer cannot accommodate (i.e. doctor imposes temporary restrictions of no lifting more than 10 pounds, and alternate sit/stand every 30 minutes, but worker’s duties involve continuously lifting 50 pound boxes while standing).

At some point, the treating practitioner will put the injured worker at “end of healing.” This is the point when the worker reached his or her healing plateau; this concept is often described as the point where the worker isn’t getting any better or any worse, (also called stationary). Once this occurs, temporary total and partial disability benefits will cease. Then, the question becomes what, if any, permanent disability benefits is the injured worker entitled to?  This would be a topic for another day.

Of course, the above is meant to be a very generalized view and explanation of temporary disability benefits. Every case varies widely depending on the injury, treatment, and whether an insurance company “independent medical examination” is involved. As always, feel free to reach out to our experienced Worker’s Compensation Attorneys for any questions about your work injury.


Is That Damage to Your Vehicle Less Than $1000?

Is That Damage to Your Vehicle Less Than $1000?

For those who may have been involved in an non-injury minor car accident, you may have heard from the other driver or bystander, “that damage is under $1000, no need to get the police involved.” A recent Wisconsin Court of Appeals decision, County of Monroe v. Kling, albeit unpublished, shows that it is better to be safe than sorry.

Wisconsin law states that if the operator of motor vehicle is involved in an accident resulting in total damage to property owned by any one person to an apparent extent of $1,000 or more, the operator must immediately notify law enforcement of the accident by the quickest means of communication.§ Wis. Stat. 346.70(1). Unsurprisingly, the rub is what is “apparent extent?”

In County of Monroe v. Kling, Mr. Kling was heading home from work when he veered to the side of the road, hit a mailbox, overcorrected his steering, and drove into a ditch. Kling was unharmed, and he was assisted at the scene by a several bystanders. Kling could not drive his vehicle out of the ditch, as the tires had popped off their rims and the vehicle had grounded out in the mud. One of the bystanders asked Kling if he had contacted law enforcement; Kling had not. The bystander called law enforcement as Kling received a ride home. After Kling returned home, he called law enforcement and a tow truck driver, and he contacted the owner of the mailbox and offered to replace it. Kling’s call to law enforcement was 34 minutes after the bystander’s call.

At the repair shop, Kling’s tires were reattached to the rims and inflated, the car checked for leaks, but no estimate was made for any bodywork. Kling picked it up two days later. Law enforcement issued Kling a traffic citation in violation of §Wis. Stat. 346.70(1). Kling contested the ticket at a bench trial, focusing his defense that it was not apparent to him that his vehicle has sustained at least $1,000 of damage.

The responding officer was the State’s sole witness on the extent of the damage to Kling’s vehicle, playing portions of his body camera. The video showed an intact vehicle, no leaking fluids, and the only visible damage was deflated tires, and the passenger side panel appeared to have some damage and some bumper trim had fallen off. According to the officer, “that’s way over the threshold of $1,000.”

Kling presented evidence that the cost to tow and remount the wheels was $200.45, and he replaced the bumper a few years earlier and it had cost him about $500. He presented an eBay listing for a comparable bumper for $146.91. He did not provide any estimate for repairing the side panel. The trial court credited the officer’s testimony and said it was confident that the total damage was much more than $1,000. Kling appealed.

The appellate court’s decision hinged on the undefined term of “apparent.” Per the court, the term apparent means damage that is visible and obvious, regardless of whether later inspection reveals more. Any damage that would require specialized training or expertise to identify is not apparent. Also, “apparent” means at the accident scene, and while the factfinder can consider after-the-fact estimates or receipts, they are not directed toward the disposition o f the case. Crucially, the Court held that § 346.70(1) is a strict liability statute that does not require proof of subjective intent; “apparent extent” is an objective person test.

As such, the Court held: “I conclude that an operator of a vehicle must report an accident when it would be obvious to a reasonable person in the operator’s position, at the time of the accident, that the total costs of repairing the visible damage to any one person’s property to as good of a condition as before the accident equals or exceeds $1,000.”

The Court of Appeals upheld the Trial Court’s ruling, focusing on the damage to the side panel pushing the total cost above $1,000 and crediting the responding officer’s testimony and opinion. It is important to point out that this is not a published decision and cannot be cited for authority; also considering that Mr. Kling was unrepresented at the Trial and Appellate Courts, it would not be a good case to make established law. That said, there can be little doubt that the various charging authorities have knowledge of this decision. The next time you scrape a pole in a parking lot or get into a fender bender, to avoid a citation, it is best to call the authorities.

Camp Lejeune Justice Act

Camp Lejeune Justice Act

The word Le jeune translates from French as young or youthful. This seemingly benign name does not accurately reflect the decades of water contamination and coverup that occurred at the Marine Corp Base Camp Lejeune.

Between 1953 and 1987, it is estimated that nearly one million people drank, cooked, and bathed in contaminated water while living or working at Camp Lejeune in Jacksonville, North Carolina. This huge swath of people included military, civilian employees, and military family members. There is a lengthy history encompassing the realization of the contamination, the efforts of those affected to seek compensation through the courts and the VA system, and various attempted legislative efforts. Without delving into a detailed history, those injured by the contaminated water had an exceedingly difficult, if not impossible, task of trying to recover either through state court, federal court, or administrative agencies.

However, this past August, in a broad bipartisan fashion, the United States Congress passed, and President Biden signed, the Camp Lejeune Justice Act of 2022 that provides monetary relief to those injured by exposure to water at Camp Lejeune. The Act allows those individuals who were on base for 30 days or more between August 1, 1953 and December 31, 1987 to bring an action in the United States District Court for the Eastern District of North Carolina to obtain relief for harm caused by exposure to water at Camp Lejeune. This includes unborn babies that were in utero during the time of exposure.

Crucially, the legislation is written in such a way to make it easier for those harmed to recover than in a normal personal injury action. First, there is no requirement showing that the United States, or anyone else, was negligent. Second, the burden of proof, is:  “evidence showing that the relationship between exposure to the water at Camp Lejeune and the harm is–

(A)     sufficient to conclude that a causal relationship exists; or

(B)     sufficient to conclude that a causal relationship is at least as likely as not.”

Lastly, the United States is not allowed to assert any claim of immunity. In exchange though, there are no punitive damages allowed, and awards are offset by benefits received from Veteran Affairs, Medicare, or Medicaid in connection with health care or a disability related to water exposure at Camp Lejeune. Claims must be commenced within the latter of two years after the date of enactment of this Act (August 10, 2022), or 180 days after the claim is denied under 28 U.S. Code § 2675.

If you have any questions about the Act or believe you may have a claim, feel free to contact our experienced personal injury lawyers.


Are Contractors Actually Fully Insured?

Are Contractors Actually Fully Insured?

Anyone who has inquired with, or hired, a contractor or homebuilder has invariably seen or been told by the company that they are “fully insured.”  More times than not, this statement simply means that the company has a standard commercial general liability (CGL) policy. Unfortunately, these “fully insured” statements understandably give the customer a false sense of security that if anything goes wrong with the work performed by the contractor or builder, its insurance company will cover the damage and make things right. In fact, with a standard CGL policy, the opposite is true:  the insurance company will not cover damage that arises out of the company’s work (or its contactor or subcontractor). What is often referred to as the “your work,” “business risk” or “exclusion” directs to an exclusion in standard CGL policies that bar coverage for property damage to the part of the real property that the company is performing work on. The language often looks like this in CGL policies:

This insurance does not apply to:

  1. Damage to Property

Property damage to:

…. (5) That particular part of real property on which you or any contractor or subcontractor working directly or indirectly on your behalf is performing operations, if the property damage arises out of those operations.

Practically speaking, this exclusion bars insurance coverage for damages such as deficient or defective work performed by the company or damage to your property caused by the company’s work. The net effect of no insurance coverage means that any recovery by the aggrieved customer will have to come against the company itself, which, depending on the company’s financial status, can be exceedingly difficult. Not only are many contractor and building companies set up as legal entities designed to protect against liability, but Wisconsin law exempts up to $15,000 in business assets from execution of a judgment. See Wis. Stat. § 815.18(3)(b).

In summary, it is incredibly important to vet the contractor or building company prior to hiring. In addition to their reputation and longevity in the community, you can inquire whether they have any insurance coverage or bond above a standard CGL policy and whether they have the financial resources to pay a judgement if a dispute arises. Moreover, the Wisconsin Circuit Court Access search (https://wcca.wicourts.gov/)  allows you to look up a company and see if they have unpaid judgments entered against them. This due diligence is necessary because a contractor’s claim of “fully insured” means little to nothing when the contractor’s work is the subject of the claim.