Go Buy An Umbrella

Go Buy An Umbrella

The above title is not encouraging you to buy something to protect you from the rain! It refers to purchasing an umbrella insurance policy to protect you and your family from liability claims, and to provide you with ample coverage for your losses due to injuries sustained in an auto accident. The typical cost for a $1,000,000 umbrella policy can be as little as $200 or $300 per year. This is a bargain for an additional $1,000,000 in protection.

As attorneys, not only do we represent clients, we also counsel them. One of my favorite topics to discuss with clients is having adequate insurance, including the purchase of “umbrella” coverage. This coverage refers to an extra layer of protection on top of your existing insurance coverage, of at least $1,000,000 or more, to protect you in case you have personal liability in an auto accident or under your homeowner’s policy. The umbrella policy you purchase should also include an endorsement to apply to your underinsured and uninsured motorist coverage on your automobile insurance policy. Some insurance companies may offer an umbrella policy you can purchase, and some may not. Some insurance companies may sell you an umbrella policy that applies to liability coverage only, for example, if you are at fault under your homeowner or auto policy. However, you need to consider being insured by a company that offers an umbrella policy that covers liability and has an endorsement to cover underinsured and uninsured motorist coverage in case you sustain serious injuries in an auto accident. You need to specifically ask for all three of these protections to have the best protection possible.

The reason for having an umbrella policy is to simply provide a significant increase in insurance coverage for a very low cost. In our practice, we see all types of auto accidents, and homeowner’s liability issues, and the first thing we ask our clients when they come to us is what type of insurance is available from the other party, and from our client. All too often we must tell our clients that the person who ran into them with their vehicle either had no insurance, or minimum insurance limits. We then look to our client’s insurance policy for potential additional coverage, and if they have low underinsured or low uninsured coverage there may be very little we can do to obtain compensation for our clients for their significant losses. Given the high cost of medical care, injured parties can easily sustain tens of thousands or hundreds of thousands of dollars in medical bills, in addition to significant wage loss and potential permanent disability preventing future earnings. If you have an umbrella policy of at least $1,000,000 that applies to liability and uninsured motorist coverage and underinsured motorist coverage, you will have a better chance of protecting yourself and obtaining full compensation for your injuries.

In summary, go buy an umbrella policy to protect yourself and your family. In order to give yourself full protection, you need to tell your insurance agent that you need the umbrella policy to cover (1) liability for home and auto, and (2) an endorsement so that the umbrella applies to your underinsured and uninsured automobile coverage. If you have any questions about an umbrella policy, please feel free to contact me and I will be happy to discuss it further with you.

 

Returning to Work After a Work Comp Injury

Returning to Work After a Work Comp Injury

Absent the lucky few, most Wisconsin workers are considered “at-will” employees. This means absent exceptions for unlawful discrimination (e.g. race, gender, age, religion, etc.), a worker can be fired for any reason, or no reason at all.  However, worker’s compensation injuries are another exception to this “at-will” presumption that makes a work injury a protected category.

Under Wisconsin’s workers’ compensation law, Wis. Stat. § 102.35(3), an employer (at time of injury) who terminates, or unreasonably refuses to rehire, an employee after a work injury is subject to a penalty of up to one year’s lost wages. The purpose behind this law is to dissuade discrimination against employees who have been injured on the job and, assuming there is work available within the worker’s restrictions, make sure the injured worker gets back to work with his former employer. This is yet another outgrowth of the bargain struck between workers and employers under Wisconsin’s worker’s compensation regime:  workers do not get to sue their employers or co-workers for injuries, but they are entitled to a system of no-fault benefits and job protections.

When returning to work, there is a distinction between returning while still healing with temporary physical restrictions versus returning to work with permanent physical restrictions. An employee must provide notice to their employer of any temporary (as well as permanent) restrictions. If the employer can provide work within the temporary restrictions at the same rate of pay, no temporary disability is owed; if the employer can only provide work at lower wages or less hours, the worker is owed temporary partial disability; and, if the employer cannot provide any work, the employee is owed temporary total disability. If an employer terminates a worker while they are still healing, the worker has an unreasonable refusal to rehire claim.

When an injured worker reaches an end of healing or “healing plateau,” the treating physician may assign permanent physical restrictions along with any permanent disability percentage. If the worker is provided permanent work restrictions, they must provide the same to their employer. Under Wis. Stat. § 102.35(3), the employer must offer “suitable employment…within the employee’s physical and mental limitations.” If the worker’s permanent restrictions allow return to their same job at the time of injury, they should be offered it. However, the employer must offer any suitable position available even if different than the position the worker had at the time of the injury. Only when there is truly no work available within the worker’s restrictions can the employer refuse to rehire the injured worker. The employer, not the employee, bears the burden of proving the lack of suitable employment.

The above is not meant to suggest that there is an absolute unassailable right to return to work for the same employer following a work injury. When determining whether there is “suitable employment,” the statute allows for consideration of “the continuance in business of the employer.” This gives rise to the employer’s argument that the nature of business or economic situation dictated its refusal to rehire the injured worker, not the work injury.

Unsurprisingly, these are highly fact-dependent issues and claims. Moreover, unreasonable refusal to rehire penalties are paid by the employer, not the work comp insurance company, which means they are hotly contested and litigated. The above is only a brief snapshot and is not meant to cover all the variations that accompany return-to-work decisions after a work injury; if you have questions, do not hesitate to reach out to one of our worker’s compensation or employment law attorneys.

 

The “Right to Be Heard” in Wisconsin Criminal Proceedings and the Impact on Your Car Crash Case

The “Right to Be Heard” in Wisconsin Criminal Proceedings and the Impact on Your Car Crash Case

Those who have the terrible misfortune of being injured in a car wreck involving a drunk driver or a hit and run driver, often find themselves having to navigate the criminal justice system as well as the civil justice system. Since the former almost always takes place before the latter, accident victims face potential pitfalls by giving an early statement to the at-fault insurance company.

Any attorney will tell an accident victim not to speak with the at-fault insurance company after an accident for a myriad of reasons. These reasons include:
1. The conversation will be recorded.
2. It is always very soon after the crash before any investigation is complete or the victim has seen the crash report.
3. The victim does not yet know the full extent of their injuries or prognosis.
4. The victim does not have a lawyer present to assist them.
All these reasons also apply to a criminal court proceeding that may follow an accident.

Last spring, Wisconsin voters passed an amendment to Wisconsin’s constitution expanding crime victims’ rights, commonly referred to as “Marsy’s Law.” While the amendment included numerous provisions, one provision included the right “to be heard in any proceeding during which a right of the victim is implicated, including release, plea, sentencing, disposition, parole, revocation, expungement, or pardon.”

This amendment expanded victim involvement and statements to earlier phases of the criminal proceeding. Judges are specifically asking at early stage hearings, such as bond hearings or initial appearances, if there are any victims present who want to provide statements. These hearings take place soon after the accident and often before the victim has retained counsel for the case. The accident victim, justifiably, is angered that they have been injured and want the judge to know. However, the circumstances of these early statements give rise to many of the same concerns that attorneys have with accident victims talking to the at-fault insurance company soon after the accident.

First, the statements are being recorded by the court reporter, and while not under oath, there is an implied solemnity to statements made to the Court. Second, the victim has likely not seen the crash report or does not know the results of the investigation of the crash. Just like a statement to the insurance company a few days after the crash, no one wants to be locked into what happened with incomplete facts. Third, at this early juncture, the victim will have just started to treat for their injuries and will not know the full extent or diagnosis. What is a neck strain at the ER following an x-ray may turn out to be a disc protrusion needing surgery once an MRI is performed a month later.

In a civil accident case, the insurance company will likely learn about any statements the victim has made to the Court, obtain the transcripts, and use them to impeach and discredit. None of this will be because anyone was dishonest; instead, they simply did not yet have the full picture of the crash and injuries. Just as a recorded statement taken mere days after the crash can be a goldmine for the insurance company, a court transcript recorded mere days after the crash can provide the same.

Importantly, this is not a suggestion that accident and crime victims avoid invoking their right to be heard at criminal proceedings. Rather, this is another illustration of why it is important to get counsel involved soon after a crash so they can help navigate both the civil and criminal justice system and make sure justice is obtained in both. 

 

Injured in an Auto Accident? Who Will Pay Your Medical Bills?

Injured in an Auto Accident? Who Will Pay Your Medical Bills?

If you are injured in an automobile accident, you may be wondering who will pay for accident-related care and treatment. Prior to a settlement or jury verdict, it is unlikely that the responsible party will pay for care and treatment. Therefore, you will likely turn to your health insurer for payment.

If you do not have health insurance through an employer plan, private plan or government plan, the prospect of unpaid medical bills may be daunting. Therefore, it is important to consult your own automobile policy declarations to determine if you have coverage for accident-related medical expenses.

Although not every policy has medical expense coverage, many policies have a small amount of coverage ranging from $1,000 to $10,000. Some auto insurers offer higher amounts, even up to $100,000. While this may seem like a lot of coverage, the cost of significantly increasing the amount of medical expense coverage on your automobile policy may be minimal. Therefore, it is highly recommended that you consult with your automobile insurance agent to discuss options for increasing your medical expense coverage.

This is true even if you have health insurance through your employer. Employer-sponsored health plans may have high deductibles that could leave you with significant responsibility for medical expenses until met. Having medical expense coverage under your automobile policy may assist in covering these expenses. Moreover, under federal law, some employer-sponsored health plans may claim a first right of recovery from any settlement.

Medical expenses paid under an automobile policy, however, are likely subject to a doctrine known as made-whole. The made-whole doctrine provides that the auto insurer making medical payments is not entitled to be reimbursed for medical expenses paid until you are made whole for injuries and damages sustained.

After you receive a settlement from the responsible party’s insurer, it is often possible to negotiate a reduction in the amount of medical expenses to be reimbursed to the insurer paying under the medical expense coverage of an automobile policy to avoid a dispute as to whether the settlement has made you whole.

If you are involved in an automobile accident, you should always remember to check your own automobile policy to access any benefits you may have for medical expense coverage. It is equally important to be proactive by considering increasing your medical expense coverage now before you are the unfortunate victim of a serious automobile accident.

 

When $100,000 is not $100,000 – Understanding Underinsured Motorist Limits in Wisconsin

When $100,000 is not $100,000 – Understanding Underinsured Motorist Limits in Wisconsin

Any regular reader of our newsletter, or attendee of our seminars, has heard the repeated importance about having enough underinsured motorist coverage (UIM) to protect yourself if you’re injured in an auto collision.  UIM coverage provides a pot of money to compensate you for injuries sustained in a crash if the at-fault driver does not have enough insurance to fully compensate you for your injuries.  In other words, once the at‑fault liability insurer pays its policy limit, your own insurance company steps into their shoes with its underinsured motorist coverage to pay you for any remaining uncompensated damages.

Unlike liability coverage or uninsured motorist coverage, a Wisconsin driver is not required by law to have underinsured motorist coverage.  However, if accepted (and you should), the lowest limit that can be provided is $50,000 per person / $100,000 per accident.  Considering the extremely low cost of UIM coverage, we strongly encourage that drivers get as high of limits as possible.  For example, my personal auto policy has $500,000 per person UIM coverage and it costs $26 per year.  Having sufficient UIM coverage is especially important in light of the fact that whatever your UIM policy limit, whether it is $50,000 or $500,000, is a dollar amount that you will never be able to recover the amount from your insurance company.

Current Wisconsin law allows insurers to define underinsured motorist by a “limits to limits” comparison.  The result is you will only be eligible for UIM coverage if your UIM policy limit is greater than the at-fault liability policy limit.  Similarly, current Wisconsin law allows insurers to reduce what it has to pay under its UIM coverage by whatever is recovered from the at-fault driver and his or her insurance company, often called a “reducing clause.”  This combination means no Wisconsin driver can actually recover the dollar amount of the UIM he or she purchased.

Hopefully, an example will help.  Joe is severely injured in a car wreck.  The at-fault driver has a $100,000 liability policy limit that the insurance company pays out to Joe.  This payment from the liability insurer does not fully compensate Joe for his injuries, and he turns to his own insurance company, with whom he has a $100,000 UIM policy.  Unfortunately, because both the liability insurance and UIM insurance have the same limit, $100,000, it means that there isn’t actually any underinsured motorist coverage available to Joe.  Because of the limits to limits comparison, only when the UIM policy limit is higher than the liability policy limit would Joe’s UIM coverage kick in.

To illustrate the reducing clause, lets change the above example to say that Joe has $250,000 in UIM coverage.  The at-fault insurance company still pays its $100,000 to Joe.  Now, because the $250,000 UIM limit is higher than the $100,000 liability limit, Joe is entitled to UIM coverage under his policy.  However, he is not entitled to $250,000 in UIM; instead he is only entitled to $150,000 because of the reducing clause ($250,000 – $100,000 = $150,000).

Regardless of what your policy says the UIM limit is, by virtue of the limits to limits comparison definition of underinsured motorist and reducing clauses, no Wisconsin driver actually knows how much UIM he or she will have available until after the accident and after he or she knows how much liability insurance the at-fault driver has.  As such, when you hear me or my colleagues harping about having plenty of UIM coverage, it is because if you have low limits of UIM, there is a good chance you will never get to use it, and if you do end up using it, it will always be less than the dollar amount you purchased.

 

What Exactly is Involved in the Litigation Process?

What Exactly is Involved in the Litigation Process?

Over the course of my career, many people have asked me what area of law I practice in, and I usually respond by stating “civil litigation.”  Then I am typically asked, “What do you mean by civil litigation?”  The civil in “civil litigation” refers to the form of law, and generally speaking, litigation is the process that occurs after a lawsuit is filed and the parties are attempting to resolve a dispute, with the potential for having a trial to decide the issues for the parties.  Many attorneys, including myself, emphasize handling litigation matters as part of their practice.  While every case has different facts and many contain different legal issues, there are some similarities among all litigation matters that you should be aware of. This awareness will make the process easier to understand and can make it less stressful for you should you ever find yourself in a lawsuit.

Most types of litigated matters follow a similar process; however, I will use a personal injury matter as an example for how things typically proceed.  This process takes place before the lawsuit is filed, up through a trial and potential appeal and can take several years of time.  The following sequence of events is typical for a claim by someone who sustains personal injuries as a result of someone else’s negligence:

1.)  First, the client meets with the attorney to discuss injuries and who is at fault for causing the accident or incident.

2.)  Second, the attorney investigates the facts relating to liability and damages, gathers evidence and speaks with potential witnesses.

3.)  From that point, the client treats with doctors or other health care providers until they reach the end of their medical treatment, and the attorney gathers all relevant medical records, bills, and other evidence of damages which have been caused by the negligent party.  This process may take quite some time, as we do not want to try to settle cases before the client has reached the end of their medical treatment, because once a case is settled, no claim for that same incident can be pursued again.

4.)  After that, the attorney and client discuss the value of the claim, and the attorney sends out a demand to the insurance company, along with all supporting documentation, to attempt to settle the claim for a fair and reasonable value.

 5.)  Then, if the insurance company is unreasonable with its offer, the attorney will file a lawsuit against the negligent party and his or her insurance company, and the case will proceed in a circuit court in the county in which the lawsuit is filed.

6.)  Next Discovery takes place.  The process of discovery is when both parties learn about the relevant facts and strengths and weaknesses in each other’s cases.  The parties each serve written interrogatories (questions) to the opposing side; the parties also request documents from the opposing side, and it often involves the insurance company seeking authorizations to be signed by the injured party so that the insurance company can obtain all pertinent medical records and bills.  The parties in the lawsuit also take depositions of the parties, as well as other important witnesses, including doctors or health care professionals and of other experts who have been hired.  A deposition involves the attorneys asking the witness numerous questions, sometimes for several hours, where the witness must answer the questions under oath and a court reporter transcribes all the questions and answers.

7.)  Once most of the discovery is completed by both sides, each side evaluates their respective cases to determine whether they are in a position to try to settle the case.  The parties will then either pursue Mediation, or the Court will usually order mediation so that the parties have to attempt to settle the case without having to proceed with a trial.  Mediation is a process that is not binding, and no one can be forced to settle unless they agree to the settlement terms.  Mediation usually involves the parties jointly hiring a neutral attorney or a retired judge to assist the parties in taking a closer look at the strengths and weaknesses of their cases.  The mediator will go back and forth for several hours between separate rooms where the respective parties are sitting with their attorneys.  The mediator tries to persuade each party to be reasonable in light of the risk and expense of going forward and having a trial, and hopefully the parties will agree on a settlement.

8.)  If mediation fails and the parties do not settle, then the parties will have a trial.  The trial can be only to the judge, or either party can request a trial to a jury, which usually involves a 12-person jury.

9.)  During the trial, the parties’ attorneys, with the assistance of their clients, will pick the jury through a process called voir dire.  The attorneys will give opening statements, call witnesses, and present documents and other evidence to support or defend their positions.  A jury trial can last from a half day to several weeks, depending on the complexity of the case and the number of witnesses each side intends to call.  The parties will then give closing arguments to the jury and try to persuade the jury to find in their favor.

10.)  The jury then goes from the courtroom back into a separate jury room to deliberate privately and to complete a questionnaire which is called a special verdict.  The answers the jury gives on a special verdict will determine who is at fault for the incident and the amount of damages that should be awarded to the injured party.  The process of jury deliberations can take less than an hour to more than several days, depending on the complexity of the case, the number of exhibits that it must consider, and the number of questions it must answer on the special verdict questionnaire.  The judge will then read the answers on the verdict to the parties once the jury has completed the questionnaire.

11.)  Finally, after the verdict if the losing party is required to pay damages, they can either pay it, try to negotiate for a lower amount, or appeal the case to the Wisconsin Court of Appeals.  If the losing party does not appeal and does not pay the judgment, then the winning party must attempt to enforce a judgment through collection procedures.

While it is best for the parties to attempt to resolve issues without having to file a lawsuit, the litigation process may be the only way a party can actually enforce their legal rights if the other side is not willing to cooperate or be reasonable in reaching a resolution to the dispute.  While attorneys try to work with their clients to persuade the other party to reach a resolution so as to avoid the risk and expense of litigation, being able to effectively litigate is one of the critical skills an experienced attorney must have in order to increase their client’s chance of having a successful outcome.  At Anderson O’Brien, our experienced litigation attorneys assist clients from the very beginning of a dispute through the entire litigation process, including any trials or appeals that may be necessary.

If the parties have a full understanding of this entire process, including the amount of time, risks, and expense involved, that should assist them in making well-reasoned decisions in determining what efforts they wish to take in attempting to resolve their dispute, or to file a lawsuit and go through the litigation process to enforce their legal rights.

 

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