Personal Injury

Motorcycle Accident: Does a Helmet Help My Case?

April 15, 2016 No Comments

We hear the question a lot. “If I am injured in a motorcycle accident without wearing a helmet, can I still recover for my injuries, medical bills, and lost wages? The answer depends on where the motorcycle accident happened. In Kansas, the law does not require motorcyclists to wear a helmet. Therefore, no comparative fault can be assessed against the rider if the accident happened in Kansas. Still, it is wise to wear a helmet. Even though a Kansas jury cannot assess fault for failing to wear a helmet, it is not uncommon for members of the jury to carry some prejudice against a rider who chose not to wear a helmet. This may cause the jury to have a lesser opinion of your claimed injuries and the resulting damages. Missouri law does require motorcyclists to wear a helmet. Therefore, if the motorcycle accident occurs in Missouri and the rider suffers injuries related to head trauma, the defendant can argue that the plaintiff was partially at fault for causing his or her own injuries and damages by not wearing a helmet. A helmet-less rider that suffers traumatic brain injury, concussion, or other injury to his head as a result of the negligence or inattention of another driver may still be able to recover damages from that driver, including payment for medical expenses, but his/her total recovery could be reduced (sometimes significantly) by the percentage of fault assessed to the motorcyclist as a result of failing to wear their helmet. This is called “comparative fault.” On the other hand, if the injuries were unrelated to the head, such as a fractured leg or a herniated spinal disc, then it is unlikely that any comparative fault would be assessed for failure to wear a helmet.

After a car accident, should I give a statement to the other driver’s insurer?

December 11, 2015 No Comments

When you are injured in a car, truck, or motorcycle accident caused by someone else’s negligence you will likely be asked by the at-fault driver’s insurance company to make a statement about the wreck and your injuries. If you have hired an attorney to represent you, you should make your attorney aware that you have been asked to give a statement. If you do not have an attorney, the decision to give a recorded statement to any insurance representative should be made with careful consideration. You are not required to give your recorded statement, and there are many factors to consider, such as: who is taking the statement, what information is the person trying to discover, and what benefit will you receive from allowing your statement to be recorded. If you make the decision to give your recorded statement, it may be wise to schedule a specific appointment time so that you can avoid distractions, and be completely focused on what questions are being asked. Then, before this appointment, it is often a good idea to write out everything you remember about what happened in the accident. It is important to take plenty of time to make your best recollection, and then convey that recollection as clearly, briefly, and accurately as possible. If you are asked about injuries you suffered as a result of the accident, describe your symptoms in detail. Do not list your diagnoses. You are not your doctor and you likely have not reviewed all of your medical records. If you respond by trying to remember the different diagnoses your doctor may have discussed with you, you may end up leaving something out or misstating the injury or treatment. To give the most complete answer, state your physical symptoms. For example, instead of saying “I have a back strain” you might say “I have sharp stabbing pains, and a burning sensation, in my back and neck every day.” or “I have difficulty turning my head without pain.” If you decide to give a recorded statement, and you are unsure about any question you are asked, don’t hesitate to ask the insurance adjuster to rephrase their question so that you clearly understand what they are asking. Also, if you become uncomfortable with any questions, politely notify them that you are going to respectfully decline to answer that question. Finally, if you decide to give a recorded statement, be sure to first get their agreement on the recording to send you a full and complete copy of your statement after it’s completed.

Law for Non-Lawyers: Can I Recover Damages If I Was Partly At Fault?

September 12, 2015 No Comments

In negligence cases, one of the first issues a personal injury lawyer considers is who was at fault. In non-legal terms, negligence cases are those in which the injured person (the plaintiff) claims that someone else (the defendant) was not careful enough and this lack of care resulted in an injury to the plaintiff. In most Kansas and Missouri negligence cases, the judge or the jury will compare the fault of the plaintiff and the defendant (the party who was sued). Lawyers and judges use the term “comparative fault” to describe this process. At the end of a case that goes to trial, the judge or the jury will determine what portion of the fault belongs to each party. For example, consider a typical intersection collision. Let’s assume that John Smith was driving north on State Line Road through the intersection with 103rd Street. Assume that Sally Jones was driving east on 103rd Street where it intersects with State Line Road. The two drivers collide somewhere in the middle. If John Smith ran a red light, the wreck is probably 100% his responsibility. On the other hand, if Sally Jones was driving 95 miles per hour towards State Line Road, and John had a green light, the wreck is probably 100% her responsibility. But, what if Sally was driving too fast and John was making a left turn, but started his turn after the light had turned red? In that case, the jury or judge will have to determine what percentage of the fault belongs to John and what percentage belongs to Sally. How the judge or jury divides the fault will have a big impact on how much the defendant has to pay. Let’s assume that everyone agrees John suffered $100,000.00 in harms and losses from the wreck and that Sally has no losses. If John is 100% responsible, he recovers nothing. Sally only has to pay for her percentage of fault. If Sally is 100% responsible, Sally must pay the full $100,000.00. If Sally is only 60% at fault, she only has to pay $60,000.00 (60% of the $100,000.00 in losses to John). Can John recover money from Sally if John and Sally are equally at fault? The answer depends on whether the collision happened on the Missouri side or the Kansas side of the state line. In our example, the accident takes place close to the Missouri and Kansas border. If the collision happened in Missouri, John would still recover 50% or $50,000.00. Missouri uses a system called pure comparative fault. Everyone is responsible for their own negligence no matter how significant or insignificant their fault is. In fact, if John was 90% at fault and Sally was only 10% at fault, Sally would have to pay John $10,000.00 (10% of the $100,000.00 in losses to John). If the collision happened in Kansas, the outcome could be very different. Kansas uses a system called modified comparative fault. Under the Kansas system, an injured person can only recover from the other party if the injured person is less than 50% at fault. If John is 50% or more at fault in our example, he loses his lawsuit. Although many of the laws in Missouri and Kansas are very similar, there are many differences that can significantly affect the value of a case. If you have been involved in an accident and talk with an attorney, he or she will need to know where the accident happened and how it happened. If John and Sally were each 50% at fault and the accident happened in Jackson County, Missouri, John’s case would be worth $50,000.00. If the accident happened in Johnson County, Kansas, just to the west of the Missouri-Kansas border, the case would be worth nothing. If you are thinking about hiring an attorney, you need to know whether the attorney is licensed in Kansas, Missouri or both states and you need to be sure the attorney regularly handles cases in the state where your injury occurred.

Do I have Enough Auto Insurance?

August 25, 2015 No Comments

If you’re like many people, there are probably three things you think about when it comes to auto insurance: 1) Do I have the state required minimum coverage? 2) Will I be able to recover the cost of my car? 3) How much is it going to cost me per month? Unfortunately, if you carry only the required minimum coverage you may not have enough insurance to cover your medical treatment, lost wages, and other damages that could result if you’re in a car, truck, or motorcycle crash. What most people don’t realize is that you can better protect yourself, your passengers, and other drivers on the road often at a cost of only a few more dollars a month. This leads to the question, “How much insurance do I really need?” To answer that question, we need to look at the purpose of auto insurance. Obviously, auto insurance protects other people from mistakes you make behind the wheel of your vehicle. But, auto insurance also protects you and your family. Auto insurance protects your assets in the event you are sued. If you have enough insurance to cover any damages you cause, the injured party will have no reason to go after your personal assets or garnish your wages or bank accounts. Auto insurance can also protect you in the event that you are injured by someone who either doesn’t have insurance or doesn’t have enough insurance. The following a brief description of some of the different types of auto insurance coverage available: Liability Coverage – Both Kansas and Missouri require drivers to carry $25,000/$50,000 bodily injury liability coverage. That coverage breaks down to $25,000 per person maximum, with a total recovery per accident (in the case of multiple injured parties) of $50,000.00. This helps pays the costs of injury damages suffered by another individual if you cause a car accident. If you have ever had the misfortune of spending time in a hospital, you know that $25,000.00 doesn’t go very far. This is why we generally recommend that people carry more than the minimum limits. Uninsured Motorist Coverage – Both Kansas and Missouri require drivers and vehicle owners to carry $25,000/$50,000 uninsured motorist coverage. As the name implies, this provides you with insurance coverage in the event you suffer injuries in an accident caused by the negligence of an uninsured driver. As mentioned above, $25,000.00 doesn’t go very far when there are serious injuries. We recommend people carry more than the minimum limits here as well. Under-insured Motorist Coverage – Kansas requires drivers and vehicle owners to carry under-insured vehicle coverage at the same level as the Uninsured Motorist Coverage. This coverage is optional in Missouri. This coverage is similar to uninsured motorist coverage, but it kicks in if you are injured by someone who has insurance, but their insurance is not sufficient to cover your losses. We recommend people carry under-insured motorist coverage to protect against other drivers who carry only low liability limits on their personal policy. PIP (Personal Injury Protection) – PIP insurance is required in Kansas, and provides minimal coverage for injuries, lost wages, and other damages you suffer in an automobile collision regardless of who is at fault for the accident. The minimum required for medical costs is $4,500, and $900 per month for 1 year for disability and loss of income. Missouri drivers and vehicle owners have a similar coverage available called Medical Payments Coverage, often referred to as MedPay. Unlike Kansas, this coverage is optional in Missouri. How can having or not having all of these coverage types affect you? Here are a few examples that will help illustrate the importance of adequate insurance coverage. Example #1 – John Doe is riding his motorcycle in Independence, MO when he is rear-ended by a car driven by Jane Smith. John suffers a broken arm, concussion, and a neck injury. As a result of the crash, John incurs economic damages (medical expenses including ambulance transport, emergency room treatment, inpatient hospital care, surgery, and physical therapy, and lost wages) in excess of $75,000.00. Jane Smith is a Missouri resident and carries liability insurance at the state minimum of $25,000.00. This amount does not begin to cover John’s economic damages and also does not provide any recovery for the pain and suffering John has, and will continue to endure. IF John carried under-insured motorist coverage in the amount of $100,000, his insurance would pick up where Jane Doe’s left off, meaning John could potentially recover $25,000 from Jane Doe’s liability policy, and $75,000 from his under-insured policy for a total recovery of $100,000. $100,000 may seem like a lot of money, but in John’s case this wouldn’t cover all of past and future damages. In this example, John probably needed $200,000.00 or more of underinsured motorist coverage to cover all of his losses. Unfortunately, John did not elect the optional under-insured motorist coverage and he either needs to hope that Jane Doe has a large bank account or he needs to count on the assistance of friends, family or the government to recover from his loss. Example #2 – John Doe lives in Overland Park, Kansas and runs a red light in Kansas City, Kansas causing a three car intersection collision that destroys all three cars and sends both of the other drivers to the hospital. If John has minimum limits, he will have two individuals trying to recover his insurance limits and then looking to John, his bank account and his other assets to pay the rest of the damages. If John has $500,000 in insurance coverage, his insurance company may be able to take care of all of the damages without John’s personal assets being exposed to attachment. When purchasing insurance, you should ask yourself the following questions: How much liability coverage do I need to protect others and to protect my assets in case I make a mistake and hurt someone while I am driving? How much uninsured/under-insured motorist coverage do

Motorcycle Safety: Stay Shiny Side Up

June 11, 2015 No Comments

I don’t know about you, but I’m itching for all this Kansas City rain to stop so I can start riding regularly again. The wind in my face. The open road. The sense of freedom and release. For those of us who ride motorcycles, there is little else that compares to the experience. Unfortunately, there are also many risks associated with cruising the open roads on our favorite 2-wheeler, that don’t exist within the confines of the standard automobile. If you have never suffered an injury while riding, here are some tips to keep you safe and shiny-side up. If you have recently been in a motorcycle accident, jump down and read about some specific information you need to be aware of when pursuing a recovery for your injuries and damages. Tips to stay safe and shiny-side up Always wear a helmet. The statistics overwhelmingly show that wearing a helmet not only can save your life, but can protect you from suffering other serious and crippling consequences like a traumatic brain injury. If you don’t like the feeling of “missing out on the wind and elements,” then buy a half-helmet or even a shorty. But whatever you choose, please just choose to protect your dome with a properly fitted and DOT-approved helmet. Keep close tabs on your tires’ air pressure. Motorcycles tires, unlike car tires, are specifically designed and engineered to flex and roll, especially on the edges and up into the side walls. This is what allows the bike to “lean” into turns while still maintaining the proper center of gravity to stay upright. While car tires can operate more or less OK when slightly over or under inflated because they maintain constant and full contact with the road surface, over or under inflated tires on your bike can cause the bike to either not flex enough to allow a bike to lean and turn sharply, or flex too much and thus lose all traction. So, check your air pressure at least weekly and keep it at the manufacturer recommended levels. Keep your gas tank full and your chain or belt properly lubed and maintained. A broken chain or belt can lead to catastrophic consequences. As for an empty gas tank, well, let’s just say we’ve all been the “I felt so cool riding and now feel like a loser walking” person at least once in our life. Let’s try to never go there again. Drive as though you’re invisible to others because, to most cars and trucks on the road, you are. If you always assume the worst can happen, you’ll be ready to have the best ride. Enough said. Issues you’ll face in an insurance claim or lawsuit for injuries from a motorcycle accident If you’ve been involved in a motorcycle accident, you’ve likely already faced one of our greatest fears as riders: an unpleasant encounter with a car or truck. The National Highway Traffic Safety Administration reports that motorcyclists are far more likely to be killed or injured in a traffic accident than passenger car occupants. If you wonder why, see safety tip number 4 above. Unfortunately, in a large majority of cases the injured rider will have insult added to their injuries when they are blamed, at least in part if not in full, for the accident and for causing their own injuries, even when they weren’t at fault at all. As wrong as this may be, many people still cling to old stereotypes about motorcyclists living and riding recklessly. In addition, many defense attorneys representing the at-fault auto driver know about the bias against bikers, and will do all they can to exploit the stereotypes in front of jurors to try and sway the jurors to not be as sympathetic or generous to a motorcyclist as they would be to any other victim of an auto accident. Similarly, and equally deplorable, is the tendency of a jury to not value the loss of quality of life for a biker as high as they would for an auto driver. These are just a few of many reasons why obtaining a fair settlement or jury verdict for motorcycle accident victims can be more difficult, and why it is all the more important to hire a high quality personal injury attorney that has experience with motorcycles, not only as a rider but in representing riders in personal injury insurance claims and lawsuits. An experienced motorcycle injury attorney knows how to fight fire with facts. It’s imperative to gather as much documentation and information as possible, including photographs and diagrams of the accident scene, credible witness statements, thorough medical records, testimony from the victim’s friends and family members, and evidence of fact-based claims for non-medical damages such as lost wages, out of pocket expenses, and other economic damages for care, support and maintenance. The defendant’s attorney will challenge and try to downplay these facts, while subtly introducing lifestyle issues in order to minimize your compensation. But your attorney can overcome these draconian efforts if they are familiar with these tactics and understand how to effectively counter them throughout settlement discussions and even on to trial.

Living With Traumatic Brain Injury

December 19, 2014 No Comments

Injury victims who suffer a broken bone, a burn, or a serious wound deal with significant and obvious pain and limitations. Their friends and loved ones can see visible evidence of the injury, disability and pain. Serious concussions or mild traumatic brain injuries (TBI) are equally significant injuries, but with an important difference – traumatic brain injuries are not always immediately visible or obvious to anyone other than the person living with traumatic brain injury. Traumatic brain injury victims often suffer from the skepticism, doubt or lack of understanding of their friends, family members, co-workers, and even physicians. TBI victims can appear outwardly healthy while inwardly they suffer from pain, neurological disorders, light or sound sensitivity, balance issues, memory issues, cognitive difficulties and changes in emotions. When doctors use the term “minor traumatic brain injury”, they are referring to an injury that is not “minor” in the way that term is normally used. Victims of a minor traumatic brain injury often have significant disturbances in how their brain works. Early symptoms include headache, dizziness or vertigo, lack of awareness of surroundings, nausea, memory dysfunction, and/or vomiting. Later symptoms may include irritability and a low tolerance for frustration, persistent low-grade headaches, poor attention, inability to concentrate, lightheadedness, anxiety or depressed mood, ringing in the years or tinnitus, light sensitivity, sound sensitivity, difficulty focusing vision, short term memory loss, and excessive fatigue. Victims often have learning difficulties and communication difficulties. Recovery from a mild traumatic brain injury is a slow process. Often, even the doctors cannot determine how completely a patient will recover until 18 to 24 months after the injury. Moreover, recovery from a mild traumatic brain injury is not a steady, consistent process. Victims will have good days and bad days. This is a normal part of the recovery process. Victims of a mild traumatic brain injury will almost always require more rest. Over-stimulating the brain, getting back to work too quickly, or too much motion or activity may delay the healing process. Certain medications and drugs can negatively affect a traumatic brain injury victim or may delay the healing process. Even drugs such as alcohol, caffeine or nicotine can affect the patient differently after a traumatic brain injury. If you or a family member is living with traumatic brain injury suffered as a result of the wrongdoing or carelessness of another, you should consider whether you need the assistance of a lawyer. If you need legal assistance, we are glad to help. Our firm has worked with many brain injury victims and understands the unique difficulties of these cases. We understand the difficulties our clients face and hope to help guide them through the process while focusing on making sure they get the medical care and treatment they need.