Whose Insurance Should Pay for Vehicle Repairs?

Whose Insurance Should Pay for Vehicle Repairs?

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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.


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.


Do Pedestrians Have the Right-of-Way?

Do Pedestrians Have the Right-of-Way?

I recently heard someone say as they confidently stepped off a curb into the street, “In Wisconsin, cars have to stop for us. Pedestrians always have the right-of-way.” Having grown up in Michigan, where our rules of the road have their own oddities (look up a “Michigan Left” for an example), I was not sure if this stranger was correct or not. As I am an attorney and looking into and analyzing laws is part of my job, I thought I would do some investigation into this matter. So, before you confidently step out into the street, please read below to learn more about the Wisconsin Statutes for pedestrians crossing the street.

The statutes are broken into three categories based on if there are traffic lights and if there is a crosswalk.

  1. When the crosswalk is in combination with traffic lights, the rules are transparent. Pedestrians have the right-of-way when a green light or walk signal indicate that it is appropriate for a pedestrian to cross, especially if the pedestrian is already in the crosswalk. Pedestrians also have the right of way when walking on a sidewalk where an alley or driveway crosses the sidewalk. Vehicles must wait for pedestrians to cross the alley or driveway before entering or exiting. While this does not specifically disprove the stranger I overheard, it is already not looking good for their legal proclamation.
  1. If there is a crosswalk, but no traffic light, the pedestrian still has the right-of-way, but with a significant caveat; pedestrians cannot suddenly leave the curb or sidewalk and cross the street if it would be difficult for the approaching vehicle to yield. What stands out to me about this caveat, is that the pedestrian must do a mental calculation as to how quickly a vehicle can brake in order to determine who has the right-of-way. This is no longer as transparent as before, because it is impossible to tell how well a particular vehicle’s brakes are working. At this point the stranger’s proclamation about pedestrian’s always having the right of way has another serious strike against it.
  1. Lastly, to further disprove the stranger’s theory, when crossing a road in a location other than a crosswalk, pedestrians MUST yield to all vehicles. Meaning unless traveling on a crosswalk or a sidewalk, vehicles have the right-of-way.

While my story ended with everyone making it across the street safely, that is not always the case. Many drivers are becoming more and more distracted and unfortunately the expectation of paying attention falls on the pedestrian. Remember to look both ways, obey all crossing signals and cross at a crosswalk if possible.

Hospital Liens: A Threat to Your Personal Injury Case

Hospital Liens: A Threat to Your Personal Injury Case

If you have health insurance, Medicaid or Medicare and you go to a hospital in your insurer’s network for treatment, the hospital is required to submit the treatment bills to your health insurer, Medicaid or Medicare.  You may have to pay a deductible, co-pay or co-insurance percentage, but the hospital does not send you a bill for the entire charged amount.  This holds true, unless that hospital’s treatment is for personal injuries caused by another person’s negligence, such as a car crash.

It is often surprising and dismaying to injury victims – who have paid premiums to auto insurance for medical payments coverage and for health insurance – that shortly after discharge from the hospital they get notice of a lien for a huge dollar amount.  Welcome to the little-known Hospital Lien statute, Wis. Stat. § 779.80:

(1)  Every corporation, association or other organization operating as a charitable institution and maintaining a hospital in this state shall have a lien for services rendered, by way of treatment, care or maintenance, to any person who has sustained personal injuries as a result of the negligence, wrongful act or any tort of any other person.

(2) Such lien shall attach to any and all rights of action, suits, claims, demands and upon any judgment, award or determination, and upon the proceeds of any settlement which such injured person, or legal representatives might have against any such other person for damages on account of such injuries, for the amount of the reasonable and necessary charges of such hospital.

Hospital liens create significant complications for an injury victim’s case.  First, the lien is for 100% of the total charged amount of the treatment; there are no contracted discounts that you often see with health insurance, Medicaid and Medicare.  Second, since the hospital is not an insurance company, the lien is not subject to Wisconsin’s Made Whole or Common Fund doctrines, both of which serve to reduce the amount paid back to health insurers out of an injury settlement or judgment.  Third, it does not matter if you have health insurance, Medicaid, or Medicare that would pay for the treatment; the hospital can bypass them and still put a lien on your personal injury settlement or judgment.

Because hospital liens can potentially eat up a significant amount, if not all, of a personal injury settlement, it is crucial that injury victims get an attorney as soon as possible.  For a hospital lien to be effective, there are several statutory and notice requirements that the hospital must comply with within certain time limits; an attorney can evaluate whether all these requirements have been properly complied with.  Also, an attorney can communicate with the hospital about the possible limitations for settlement or judgment and reach agreement with the hospital for a dollar amount less than the lien amount, or convince them that, based on the limited funds available, the hospital is better off submitting the bills to health insurance, Medicaid or Medicare.

Hospital liens serve as another reminder of why it is so important to obtain a competent attorney after an injury.  If you or someone you know has been injured and are facing a hospital lien, feel free to contact one of our personal injury attorneys at Anderson O’Brien, LLP.


Can Amazon be Held Responsible for Defective Products Sold by Third Party Vendors?

Can Amazon be Held Responsible for Defective Products Sold by Third Party Vendors?

Amazon, the e-commerce giant, sells over 350 million products online, which includes millions of products from third-party vendors. More than 95 million Americans now have Amazon Prime memberships. What happens if someone gets seriously injured by using a defective product manufactured by a third-party vendor which Amazon sells on its website? Can Amazon be held liable? The short answer is YES.

There is very little regulation when third-party vendors place their products on Amazon. Amazon has argued that it is just the intermediary between buyers and its third-party sellers on Amazon’s marketplace, and therefore it should not be held liable for these defective products. Until recently, Amazon has won several lawsuits escaping liability for selling defective products. However, the tide is now shifting against Amazon. In 2020 a landmark case was decided in California, where a woman purchased a replacement battery for her laptop computer from Amazon. This battery was manufactured by a third-party vendor. After several months, the battery exploded, and the woman suffered third degree burns. The California Court of Appeals ruled that Amazon could be held liable for selling this defective product. In finding that Amazon may be held liable, the Court held that regardless of what role Amazon had – whether it was a retailer, distributor, or mere facilitator – it was pivotal in bringing the product to the consumer.

A similar result was decided in a Wisconsin federal court case in 2019 in the Western District of Wisconsin. (State Farm v. Amazon.com, Inc.)  In this case, a Chinese manufacturer functioning as a third-party and having no presence in the United States, sold a bathtub faucet adapter on Amazon. A month after a homeowner purchased the item, the adapter failed due to a defect and caused flooding to their home. The Court found that the Chinese manufacturer could be held liable but that it was not subject to a lawsuit because it had no presence in the United States. The Court then went on to analyze the potential liability of Amazon for selling the defective product. The Court held that Amazon could be strictly liable because it found that Amazon took on more than a peripheral role in putting the product into the stream of commerce. The Court focused on key facts about the manufacturer’s relationship with Amazon, such that Amazon provided payment processing for the manufacturer and guaranteed the purchases. It also highlighted that the manufacturer participated in Amazon’s Fulfillment By Amazon (FBA) Program pursuant to which Amazon stored the manufacturer’s products and fulfilled its orders. Amazon also required the manufacturer to register its products for sale and reserved the right to refuse registration. Finally, Amazon required the manufacturer to indemnify Amazon for any injury or property damage caused by the manufacturer’s products.

As shopping online becomes more and more prevalent compared to shopping at brick and mortar stores, the courts appear to be finding remedies for online buyers who purchase defective and dangerous products from third-party vendors. In response to these lawsuits and court holdings, Amazon has developed a new policy in 2021 where it will pay customers up to $1,000 for defective products sold on its marketplace by third-party merchants that cause property damage or personal injury. Amazon claims that 80% of its defective product claims are worth less than $1,000. Amazon states that it may pay higher than this amount if the manufacturer is nonresponsive or rejects a valid claim. This damage amount is clearly insufficient for serious injuries and damages can require litigation to obtain the full value from Amazon. Amazon still maintains its position that it is not legally liable for selling defective products. It does appear that the company is taking a proactive approach on this issue in order to potentially avoid further legislation and regulations that may make it more difficult for Amazon to sell third-party products online.

If you experience a defective product that causes serious damages and injuries, it is important to speak to an attorney in a timely manner in order to preserve any potential claims that you may have. If you have questions, please do not hesitate to reach out to one of our personal injury attorneys.