Which Insurance Companies Do I Have to Talk to After an Auto Accident?

Which Insurance Companies Do I Have to Talk to After an Auto Accident?

Following an auto accident, victims are often bombarded with calls from claims personnel connected with various insurance companies asking how the accident happened and what injuries were sustained. Usually, there are three different insurance companies trying to get information: (1) the liability insurer for the at-fault driver, (2) your own auto insurance company and (3) your health insurance company.

The insurance company you have no obligation to speak to and who we recommend you do not speak to is the liability insurer for the at-fault driver. Almost without fail, soon after an accident, injured drivers will receive a call from a claims person from the responsible party’s insurance company. This claims person will likely be recording the conversation and will ask questions about how the accident occurred and what injuries were sustained; rarely is this to your benefit. Being only a few days out from the collision, the injured victim will not have the police crash report and investigation findings, will have only been discharged from urgent care or the ER and not had an opportunity to see their doctor or a specialist for their injuries. In other words, the injured victim usually does not know the full extent of their injuries or the details of the accident.

In spite of this information deficit, the at-fault insurance company will use this opportunity to lock you into how the collision occurred and what your injuries are all without the benefit and protection of counsel. This is a statement that may be used against you at future depositions and trial. Worse still, there are some insurance companies who use this early opportunity to pressure you into a accepting a settlement offer.

On the other hand, you do have a duty to communicate and cooperate with your own auto insurance and your health insurance company. Your insurance policies have specific terms and conditions that you must abide by, one of which is that the insured has a duty to cooperate and inform the insurance company about the loss (i.e. the collision and your injuries). If you choose to ignore your own insurance companies, you risk them not paying for medical treatment related to the collision and possibly risk your uninsured and underinsured motorist coverages should you need them. We are often told by our clients that one of the services they appreciate most is our office’s ability to force all insurance companies to run their questions, forms and requests through our office which we handle. This allows our clients to focus on the most important thing after an accident: getting better.

 

Using a Special Needs Trust to Ensure Your Settlement Does Not Affect Public Benefits

Using a Special Needs Trust to Ensure Your Settlement Does Not Affect Public Benefits

In Wisconsin, Medicaid (sometimes also called Medical Assistance) covers 1 in 9 adults and 1 in 3 children; in fact, 16% of the Wisconsin population gets its health care coverage through Medicaid.  Unlike the similar sounding Medicare, Medicaid is a means tested, needs-based health care coverage program, which means there are various income and asset limits that determine a person’s, or his/her family’s, eligibility.

By virtue of being a means tested program, Medicaid eligibility can be affected by receipt of funds, such as a personal injury settlement, if proper steps are not taken.  For example, to qualify for Medicaid, a single person can have no more than $2,000 in total countable assets.  If that Medicaid recipient receives a personal injury settlement of $25,000, he or she is going to be above the asset limit and at risk to lose Medicaid coverage.  Considering the exorbitant cost of medical procedures and medications, the loss of Medicaid coverage, or any needs-based benefits, can be devastating.

No injury victim should face the choice of being fully and fairly compensated for his or her injuries versus keeping his or her health care coverage.  Such a harsh outcome can be avoided by transferring the settlement funds to a properly drafted “special needs trust.”  Under normal rules, if a Medicaid recipient gives away or transfers assets to someone else, or to a trust, this results in disqualification from Medicaid (a penalty period).  A special needs trust is a type of trust that is specifically allowed under the Medicaid rules as an exception to the asset transfer rule.  A Medicaid recipient can transfer assets to a special needs trust without disqualification, and the recipient will no longer be over the asset limit.  Although the injury victim no longer has access to the funds, the trustee of the special needs trust can make distributions for his or her benefit, and there will be no loss of public benefits.

For example, our hypothetical accident victim, Courtney, receives a $25,000 settlement but is on Medicaid and Social Security Income (SSI), which are public benefits with asset limits.  Courtney wants to save this money for a car (a non-countable asset) or other items but is not sure what she would like to purchase.  If she is going to stay on public benefits, she only has ten days to report that she has received the money, and then will receive a notice that her benefits will be terminated.  Instead, Courtney’s attorney creates a special needs trust for Courtney, naming her mother as the trustee.  Courtney transfers the $25,000 to the trust without any disqualification for public benefits.  Later, Courtney decides she wants to buy a car with the settlement proceeds.  The car is bought and paid for by the special needs trust; the funds to buy the car come directly from the special needs trust, not Courtney.  Courtney gets her car and continues to receive Medicaid and SSI.

It is important to remember that Medicaid and SSI are just a couple examples of means tested/needs-based public benefits that could be affected by receipt of personal injury settlement funds.  This all serves to highlight the risk of going it alone following an accident or injury, as well as the need to hire a skilled attorney.  To be sure, when the insurance adjuster is pressuring you to settle your claim, the insurance company is not going to care whether the settlement will cause you to lose your public benefits.

 

Children Moving Out?  Make Sure They are Still Insured

Children Moving Out? Make Sure They are Still Insured

Often families with teenage drivers living at home do not have those teenage drivers listed as named insureds on the auto insurance policy.  Frequently, Mom and Dad are the named insureds on the insurance policy and all the vehicles are listed, and the teenagers qualify for coverage by virtue of being related to Mom and Dad and living in their home.  This type of familial relationship coverage for the teenage drivers usually has a special term of art in the insurance policy, such as “resident relative,” “member of same household” or “resident of your household.”

While each insurance company defines their terms differently, generally speaking, this type of familial coverage means that drivers who are living with their parents qualify for insurance coverage even though they are not the “named insureds” on the auto insurance policy.  This type of coverage is usually defined as a person related by blood (or adoption) to the named insured and living with the named insured; some insurers may limit this category to minor children only, but others may include adult children as well.

The reason this topic is being raised, is that sole reliance on resident relative coverage can create potential problems when that child moves away from home (goes to college or armed forces) or splits time between two homes (divorced parents).  Hopefully, a hypothetical will illustrate.

Billy is a hypothetical 18-year-old high school senior living with Mom and Dad.  The family has a hypothetical auto insurance policy that lists Mom and Dad as the named insureds and covers both of the family vehicles.  While Billy is not a named insured on the policy, by virtue of being related by blood to Mom and Dad and living in the same household with them, he qualifies as a resident relative insured, even as an 18-year-old.

Billy graduates from high school and goes off to college in another city; he is no longer living with Mom and Dad, nor is he listed as a named insured under any other auto insurance policy.  While at college, Billy gets injured in a terrible auto wreck while riding in a friend’s car.  Unfortunately, the at‑fault driver does not have sufficient insurance (or worse, no insurance at all) to cover Billy’s extensive injuries and damages.  However, Billy and his parents think that Billy should have underinsured motorist coverage available to him under Mom and Dad’s auto policy.

The problem is, Billy may no longer qualify as an insured under Mom and Dad’s auto policy.  Billy was never a named insured, the crash did not involve Mom and Dad’s cars, and Billy may no longer qualify as a resident relative.  Because Billy was not living with Mom and Dad at the time of the car crash, he may not qualify as a resident relative anymore.  Whether Billy qualifies for coverage under Mom and Dad’s policy will depend on the policy’s definition of resident relative and Billy’s precise living situation at the time of the wreck.  Had Billy completely moved out or did he leave his furniture and personal belongings at home?  Where was he getting his mail, or what was his voting address?  Regardless of the facts, by virtue of no longer living under the same roof with Mom and Dad at the time of the wreck, the insurance company will likely argue that Billy does not qualify as an insured.

You and your family, can avoid being left in this limbo by making sure your children who are leaving and not getting their own auto insurance are specifically listed as named insureds on your auto policies.  That way, if they are injured in a car wreck, they can have the benefits and protection of the uninsured and underinsured (if underinsured was purchased, and it should be purchased) coverage.

 

Protect Your Rights After a Hit-and-Run

Protect Your Rights After a Hit-and-Run

When people envision an auto wreck, their minds usually go to an image of two crashed vehicles on the side of the road, and the police are present talking to the parties and witnesses to document what occurred. As a result, an accident victim can readily identify the at-fault party and insurance company to pursue compensation for his or her injuries and losses. However, in a hit-and-run, if the other driver is never identified, the accident victim obviously cannot identify a driver or insurance company to pursue. Therefore, in order to obtain compensation for injuries sustained in a hit-and-run, the accident victim must use his or her Uninsured Motorist coverage. This can make recovering compensation more complicated, as there are procedural pitfalls awaiting an accident victim.

While using Uninsured Motorist coverage (also referred to as “UM”) may seem counterintuitive, under Wisconsin law, one of the definitions of an “uninsured motor vehicle” is “an unidentified motor vehicle involved in a hit-and-run accident with another person.” Since Wisconsin law requires every automobile insurance policy sold in the state to contain UM coverage, every Wisconsin automobile insurance policy has protection for a hit-and-run (the amount of protection depends on the limits of UM purchased).

The “more complicated” part referenced above comes from policy language that imposes additional duties on the accident victim in order to utilize the UM coverage for a hit-and-run. While every insurance company and policy is different (and they are always changing), many policies require the person making a claim for a hit-and-run to notify the police and the insurance company in a timely matter. Some insurers only require the person “promptly notify,” while others have even more stringent requirements of 30 days or even 72 hours. As always, you want to read and follow your policy’s duties and deadlines to avoid the argument that you breached the policy and are not entitled to UM coverage. Therefore, in addition to the ever-present three-year statute of limitations that the claim must be brought within, the policy imposes its own obligations.

As if not already complicated enough, if you are injured in an accident in which the unidentified vehicle did not physically make contact with your vehicle (a/k/a “phantom motor vehicle”), a set of even more stringent requirements await you. For example: a driver comes over the centerline forcing you to swerve, your vehicle overturns and you are injured. In this type of scenario, Wisconsin law requires that: (1) the facts be corroborated by “competent evidence” provided by someone other than the insured or the person making the claim; (2) within 72 hours of the accident, a report of the accident is made to the police, peace or judicial officer, or the DOT (or equivalent in another state); and (3) within 30 days after the accident, a statement under oath is filed with the insurer setting forth the claim and facts in support of the statement.

Depending on your viewpoint, these obligations permit the insurance company the opportunity to investigate difficult claims timely, serve as a way for insurance companies to deny meritorious claims, or a little bit of both. Regardless, they are but one example of why it is so important to seek representation immediately after an accident. Even without these potential procedural pitfalls, an accident victim is likely to face a fight with the insurance company over liability for the accident and what compensation is owed. You do not want to be barred from even making a claim because of failure to comply with any policy and statutory requirements.

 

Injured at Work? Remember to Choose Your Own Doctor!

Injured at Work? Remember to Choose Your Own Doctor!

Recent trends have seen some employers hire on-site healthcare providers, oftentimes a nurse or a physical therapist. Depending on your viewpoint and utilization, these healthcare providers can be seen as a convenient benefit to employees, a way to contain healthcare costs, or a way to minimize workplace injuries. While an employer may encourage an injured worker to see the on-site nurse, therapist, or physician, it is important that workers know that Wisconsin’s Worker’s Compensation law allows them to choose their own doctor.

Injured workers in Wisconsin have an almost unrestricted right to choose their treating healthcare provider. Wisconsin statute allows the injured worker his or her choice of any physician, chiropractor, psychologist, dentist, podiatrist, physician assistant, or nurse practitioner, so long as they are licensed to practice in Wisconsin. If the worker wants to obtain treatment out of state, then the worker must obtain a referral from a Wisconsin practitioner or obtain the employer’s consent.

An employee is limited to two choices of a treating provider. If the employee is unhappy with the first treating provider, he or she has the right to choose a second treating provider. However, treatment by providers who practice together as partners or as a clinic only counts as one choice. Further, a referral from one healthcare provider to another healthcare provider also counts as one choice.

Part of the convenience of on-site healthcare for work injuries is offset by the worker’s compensation policy that allows employees to claim reimbursement for mileage related to medical treatment. This policy applies to medical appointments, physical therapy, and pharmacy visits.

More importantly, the choice of a healthcare provider has ramifications well beyond the type and scope of medical treatment that the injured worker receives; the healthcare provider’s opinions about an injured employee’s work injury plays a huge role in determining the amount of compensation the injured worker receives. The healthcare provider determines very important medical-legal issues, such as (1) whether the injury is indeed work-related; (2) whether the injury is permanent; (3) what is the amount of permanency; and (4) what are the work restrictions. The healthcare provider’s answers to these questions can determine the amount of compensation for a work injury.

Because so much of the worker’s compensation system depends on a healthcare provider’s opinions, it is crucial that an injured worker does not feel restricted to their employer’s suggestion. Remember, you have a right to choose your own doctor.

 

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