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.

 

Who Pays Medical Bills Before a Settlement?

Who Pays Medical Bills Before a Settlement?

If you are involved in a motor vehicle accident, you probably have many questions, including questions about how your medical bills will be paid. If you were injured in a motor vehicle accident due to the negligence of another person, you may recover your medical bills through a lawsuit. However, it may be months or even years before you receive a settlement or judgment from the negligent driver and his or her insurance company. In the meantime, you need to ensure that your medical bills are covered. How those bills are paid will ultimately affect your recovery.

The first place you will want to look for insurance coverage for medical bills is your own automobile policy. Many drivers are unaware that their automobile policy may carry a certain amount of coverage for medical bills arising from an automobile accident. This amount is usually minimal, but every bit helps. If you reach a settlement with the negligent driver’s insurer, your automobile insurer generally is not entitled to be refunded for the medical bills it paid unless and until you are made whole by the settlement – meaning that you are fully compensated for all elements of damage. In most cases, a negotiated reduction is reached to avoid a separate mini-trial on this issue.

The next place you will want to look for medical coverage is your own health insurance. If you have health insurance through an employer-sponsored plan that is fully-funded by the employer, you may have to pay that health plan back all of the amount it paid for your medical bills regardless of whether you are made whole. These plans, referred to as self-funded ERISA plans, are governed by federal law, which preempts state law concepts such as the made whole doctrine. Some of these plans, however, are insured by a third party. An experienced lawyer will know to research the plan to determine whether it is insured or self-funded and whether arguments can be made in an effort to reduce the amount you are required to refund the plan from your settlement.

Finally, if you are insured through Medicare, the federal government has established a specific formula to calculate the amount that must be refunded. That formula is based on the amount of the settlement or judgment and the amount of legal fees and costs associated with achieving it.

Before resolving any case, it is always important to know what your payback obligations are to third parties that paid for medical bills related to the accident. Having an experienced lawyer involved gives you the benefit of determining what these payback obligations are and how to negotiate reductions where possible to account for the time and effort you and your counsel spent to recover from the negligent party.

 

Steps to Preserve Your Claim in a Premises Liability Case

Steps to Preserve Your Claim in a Premises Liability Case

Anderson O’Brien handles many claims involving individuals who injure themselves after falling or tripping due to ice or some other unsafe condition or obstacle. These types of cases are called premises liability cases. They occur frequently, especially during Wisconsin’s difficult winters involving ice and snow. March is a particularly hazardous month with all of the freezing and thawing that takes place, resulting in the accumulation of ice. Many of these incidents result in very serious injuries requiring surgery, necessitating the insertion of plates and screws into someone’s ankle, leg or hip. These cases can be difficult to prove, as it is necessary to establish that the property owner was negligent and/or, in some cases, that they violated Wisconsin’s Safe Place Statute.

However, while serious injuries may result from a slip and fall, it can be difficult to preserve the very evidence you need to prove your case. Several steps must be taken to effectively preserve your evidence and to pursue your claims. The following consists of some of the steps that are important for you to take if you intend to pursue a premises liability claim.

1. Provide Notice of the Incident Immediately.
Proper documentation in premises liability cases is crucial. Providing notice immediately to the owner or manager of the property is something that absolutely must be done in order to pursue your claim. The purpose of immediate notice is that it puts the owner or manager of the property on notice so that it provides credibility to your claim that the trip and fall actually occurred at the time and location you said it did. The restaurant, store, gas station, or manager of the facility where you fell also should generate a written incident report which can later be used to prove your claim. Additionally, providing immediate notice to the owner or manager on site will cause that person to investigate and to observe for themselves if there are, in fact, icy conditions or other dangerous conditions which exist, and they can be a witness that you can use to establish your claim. It also provides the manager with notice that they should take measures to render the premises safer, such as placing salt on the ice upon which you fell, and that can also be used as evidence against the property owner.

2. Take as Many Photographs as You Can.
Documenting the scene of the incident through photographs is invaluable and can literally make or break your case. The condition of what you tripped or fell on can change almost instantly. (For example, water or liquids can be cleaned up by the property owner; ice and snow conditions on a sidewalk or inside a building can melt. Other unsafe conditions can be fixed and repaired within a short period after the incident.) Therefore, if you do not take photographs to establish the condition at the time you fell, it may be very difficult to give an accurate verbal description to the insurance company or to a jury of what it is you fell on, what time you fell, and where you fell. Certainly, you may not be able to think about taking photographs at the time that you sustained a serious injury. However, you need to do whatever you can to take pictures. If you need to, ask someone else to take pictures with your phone immediately or have a friend or relative go back to the location as soon as they can after you fall. Photographs are the single most critical piece of evidence in many slip and fall claims.

3. If Possible, Obtain Information About Other Witnesses.
In many slip and fall cases, if you do not have direct video surveillance saved by the business where the incident took place, the claim may essentially boil down to “he said, she said” evidence. The insurance company may argue that you did not even fall on the date or time that you said you did. If you obtain the contact information of all witnesses who observed the incident or saw you lying on the ground after you were injured, this will give greater credibility to your claim. You will also then have contact information for these witnesses who can testify as to the conditions where you fell at that exact moment.

4. Seek Medical Treatment if Necessary.
If you are injured in a slip and fall incident and you need medical care, you should do so immediately and go to the emergency room rather than waiting for an appointment with your doctor several days later. The significance of this is twofold. First, the doctors can examine you and take x-rays to get you the proper care you need immediately to get you on the road to recovery. You should follow all of your doctor’s advice and show up to all of your appointments. Secondly, the fact that you slipped and fell will be reported in your medical records and if you go to the emergency room, this will help establish the date, time, and location of when this incident actually occurred. Be specific with your doctors about the details surrounding this injury. When you pursue a claim against the insurance company and have to testify, sometimes several years later after the fall, the documentation in your medical records will prove invaluable in establishing your claims.

5. Contact an Attorney.
It is important to contact an attorney right away if you intend to pursue a potential premises liability claim. There are important time limits and notice provisions under the law that must be satisfied in order to pursue a claim against property owners or insurance companies. The legal requirements of notice will differ based upon where you fell (i.e., for a government entity, you must give notice of the injury within 120 days). Evidence must be preserved, investigations and contact with witnesses must be made. Anderson O’Brien has the experience and expertise to handle these types of cases. We take the burden off of you to develop your case from the very beginning. We offer free initial consultations to evaluate potential premises liability claims.

Following the above steps in a premises liability claim, or any personal injury claim, will greatly assist your attorney in representing you to obtain the best results possible.

 

Governmental Immunity and the Known Danger Exception

Governmental Immunity and the Known Danger Exception

The governmental immunity statute grants immunity to governments and their officers from certain lawsuits related to intentional wrongful and discretionary acts. Governmental immunity laws trace their origins back to British common law and the idea that the King could do no wrong. Section 893.80 of the Wisconsin Statutes sets forth the general principles of governmental immunity in Wisconsin, including notice requirements, immunity for intentional and discretionary acts, and limits on damages. This article briefly describes governmental immunity and discusses a recent Wisconsin Supreme Court case that applies one of the exceptions to governmental immunity.

Wisconsin courts have described the purpose of the governmental immunity statute in the following terms: “the purpose of immunity provisions is to ensure that courts are not called upon to pass judgment on policy decisions made by members of coordinate branches of government in the context of tort actions, because such actions furnish an inadequate crucible for testing the merits of social, political, or economic decisions.”[1] More simply put, governmental immunity is embodied in the doctrine of separation of powers which divides government responsibilities into distinct branches to limit any one branch from exercising the core functions of another.

There are four narrow exceptions to governmental immunity that have been established in Wisconsin case law. These exceptions allow units of government, or their officers or employees, to be held liable for an action or inaction undertaken in the scope of employment. The exceptions are intended to balance “the need of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress.”

One these exemptions is referred to as the “known danger” exception. It applies in situations in which dangerous circumstances give rise to a ministerial duty to act. Meaning there is no governmental immunity for negligently responding to known dangers that create absolute, certain, and imperative duties.

In January 2019, the Wisconsin Supreme Court reviewed a tragic case where a young girl drowned at a summer camp while under the supervision of the City of New Berlin. The young girl’s parents filed the lawsuit claiming that New Berlin’s camp staff were negligent because the girl did not receive a swim test and was allowed to enter the pool anyway. Specifically, the girl’s parents alerted camp staff to the fact that the girl could not swim, and the camp staff told them that all campers would be provided with a swim test and limited to appropriate areas of the aquatic area accordingly. The camp staff did not provide a swim test and allowed the girl to enter the pool rather than restricting the girl to the splash pad area. New Berlin argued that governmental immunity barred the lawsuit. The Wisconsin Supreme Court determined that New Berlin was not entitled to immunity because the “known danger” exception applied. Writing for the Court, Justice Shirley Abrahamson explained that “the danger to which [the young girl] was exposed at the Aquatic Center as an eight-year-old non-swimmer was compelling and self-evident.”

Despite their best efforts to serve and protect the public, at times, some governmental entities have been proven to be negligent in their duties. If you believe you have a claim against a governmental entity, you must act quickly. Wisconsin requires that the governmental entity being sued be provided with notice of the claim or injury within 120 days after the happening of the event giving rise to the claim.[2] The purpose of this notice is to afford governmental authorities an opportunity to investigate a claim promptly.[3] If you are considering making a claim against a governmental entity or one of its officers, you should contact an attorney right away.

[1] Kara B. v. Dane Cnty., 198 Wis. 2d 24, 55 , 542 N.W.2d 777 (Ct. App. 1995) , aff’d, 205 Wis. 2d 140 , 555 N.W.2d 630 (1996) (quoting Gordon v. Milwaukee Cnty., 125 Wis. 2d 62, 66 , 370 N.W.2d 803 (Ct. App. 1985)

[2] Wis. Stat. § 893.80(1d)(a).

[3] Elkhorn Area Sch. Dist. v. East Troy Cmty. Sch. Dist., 110 Wis. 2d 1, 327 N.W.2d 206 (Ct. App. 1982).

 

Arbitration? What am I Gaining? What am I Losing?

Arbitration? What am I Gaining? What am I Losing?

You have probably heard the word “arbitration” before. Maybe you have purchased a consumer product and looked at the fine print to discover a reference to arbitration. Perhaps you have seen a reference to it in some other context. In some situations, such as a consumer product purchase, you may not have much of a choice when it comes to submitting any disputes to arbitration. In other cases, however, you may have some negotiating power over the terms of a contract you are a party to. For example, perhaps you are negotiating a contract with a homebuilder for the construction of your new dream home and you have come across an arbitration clause. In these and similar instances, it is to your benefit to have a basic understanding of the concept of arbitration and know what you are losing and what you are gaining by agreeing to submit your disputes, should they arise, to arbitration.

Arbitration is a form of alternative dispute resolution. In other words, it is a means of resolving disputes privately as an alternative to a formal lawsuit in court with a judge and jury. In arbitration, the judge is replaced by a private individual, usually chosen and paid for by the parties. Arbitrator rates vary widely and can range anywhere from a couple hundred in total to several hundred dollars per hour.

The benefit of an arbitrator, as opposed to a judge, is typically faster action on disputes that arise during the process. The arbitrator, unlike a judge with many other cases, will usually have more time to turn to your particular matter sooner. However, unlike a judge, who is funded by the taxpayers, an arbitrator’s bill can grow fast.

Another difference between arbitration and a formal lawsuit is the time between start and finish of the case. Lawsuits in court can drag on for months and oftentimes years. Arbitration, on the other hand, can be over in under six months or even sooner.

Arbitration moves faster than a formal lawsuit for a number of reasons. First, in arbitration, the parties are not competing for the court’s priority with hundreds, and oftentimes, thousands of other cases. Second, the arbitration process typically does not provide for beneficial tools known as “discovery” that help parties prove their claims and defenses. These discovery tools, including depositions, written questions, document requests, and more, while very useful in finding and fleshing out evidence, add time to the process. Because the tools are usually not available in arbitration, the process tends to move faster but it can also make it more difficult to prove claims and defenses if there is information you want from the other side.

Before agreeing to any contract with an arbitration clause included, you should consider consulting an attorney who can advise you further on these and many other advantages and disadvantages of choosing this method for resolving disputes with the other party or parties to your contract, should they arise.

 

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.

 

Pin It on Pinterest