Guide To Automobile Injury Compensation And Rights In Kansas
Your Guide to Automobile Injury Compensation and Rights is provided to clients of the Ankerholz and Smith law firm for informational purposes. The rules that govern injury claims due to automobile collisions are stated in the Kansas Statutes, in the Kansas Administrative Regulations, in rulings of the State Insurance Commissioner and in the cases decided by the Appellate Courts of Kansas.
Although putting all of the pieces of these many laws and regulations together is a complex task, we want you to understand how they affect you and your case. Because each person is different, we handle each automobile injury case individually. Our goal in representing you in your injury claim is to help you obtain the best medical recovery possible, and then to maximize your financial recovery when concluding your claim by settlement or, if necessary, by lawsuit and trial.
The following are questions that our clients have commonly had during our prosecution and handling of their automobile injury claims. The questions are not a complete statement of the law. Instead, we hope that these following questions and answers will help you understand what will be happening in general terms in your case.
We invite you to discuss with us your questions and concerns pertaining to your case. We honor and value the trust that you have placed in us by allowing us to represent you in your accident claim. We will strive at all times to merit your continued trust as your case progresses. We look forward to working with you at all stages of this procedure.
How will my case be handled?
We will obtain and collect the records and billings for the treatment of your injuries. We conduct the necessary investigation of the collision to establish who is responsible for your injuries. We will confer with you periodically to keep abreast of your recovery from your injuries and the course of your medical treatment. We will work with you to collect and present the necessary documentation to insurance carriers for the payment of any lost wages or other income loss.
After your medical recovery has been completed, we will obtain additional medical evidence in the form of narrative reports and medical opinions as to your condition. As required for the proper presentation and documentation of your case, we will also obtain expert opinions from such experts as accident reconstruction engineers, economists and vocational rehabilitation experts.
We will evaluate your case and present a settlement demand to the adverse insurance carrier based upon the particular facts of your case. We will confer with you during the course of the settlement negotiations and obtain your prior approval before accepting any settlement offer.
If necessary to maximize your recovery and after discussing it with you, we will file a lawsuit in your case and try it to a jury.
The accident was someone else’s fault. Why do I have to turn my medical bills in on my own car insurance? What is “No Fault Insurance”?
Kansas has had the No-Fault Automobile Insurance Law since 1974. The purpose of the law is to assure that your medical bills and lost wages are paid to you promptly after your insurance company receives proof of your loss. The law requires that each vehicle have insurance providing for the payment of “personal injury protection” benefits to the person injured in that particular vehicle.
Personal injury protection (PIP) benefits include your medical expenses and lost wages. The law requires that your insurance company make these payments to you regardless of who is ultimately found to have caused your injury. Because of these legal requirements, your medical bills and wage loss claims are first submitted for payment to the insurance company insuring your vehicle.
If I turn in my bills on my insurance, will I be canceled or face higher insurance premiums?
Making a claim under your insurance for PIP benefits including medical expenses is not a permissible basis for your insurer to either cancel your policy or increase your auto insurance rates. PIP benefits are separate from the liability portion of your auto insurance. You pay a separate premium for PIP benefits.
A claim for PIP benefits is considered a non-chargeable loss. You should not be penalized by your auto insurance carrier for making a PIP claim. If you believe that your auto insurer has canceled you or raised your rates because of making a PIP claim, please let us know immediately so that we can assist you in obtaining appropriate relief through the Kansas Insurance Commissioner’s Office and through other means.
Can I use my health insurance instead of submitting my medical bills to my auto insurance company?
Maybe. Generally, most health insurance policies require that you first submit your bills to your automobile insurance company. The auto insurance is considered the primary policy. Because of the variety of health policies that exist your policy may not require that you first submit to your carrier.
In any event, you should have coverage under your health insurance if your auto insurance has paid the limits for medical expenses under your auto insurance policy. Commonly the limit for medical expenses in an auto policy is $4,500.
Can I recover all of the wages I lose as a result of my inability to work after my auto accident?
Yes. PIP benefits under your auto policy will pay lost wages of up to $900 per month for one year following the accident. The amount of lost wages paid by PIP is equal to 85% of your gross earnings loss. The PIP lost wages benefits are payable to you immediately as you incur them.
Any loss of earnings in excess of the one year or in excess of $900 per month can be recovered from the person who is found to be responsible or at fault for your injuries.
Generally speaking, the insurance company for the other driver causing the accident will pay 100% of your documented wage and income losses as a part of the settlement of your claim.
Do I have to have a certain amount of medical expenses to make a claim for my injuries?
Generally, yes, you do. The No Fault Insurance Law provides that you may not make a claim against the driver causing your injuries unless you have at least $2,000 of medical expenses. This rule has several special exceptions including such things as permanent impairment and the value of medical services provided to you at no cost. You should discuss the particular circumstances of your case with your attorneys in order to see how this rule applies to you.
I don’t own a car. Whose insurance pays for my auto accident bills?
If you are not the titled owner of a vehicle, PIP benefits for your bills and income loss are payable by the insurance company covering the automobile in which you were riding at the time of the collision.
An additional rule provides that you have PIP benefits under the policy of any auto insurance issued to any member of your household. If you were a pedestrian instead of a passenger, the company insuring the vehicle which hit you would provide PIP benefits.
In order to compel every one to have insurance on each vehicle, the law penalizes persons who are titled owners of an uninsured vehicle. Persons who are injured and are the titled owner of an uninsured automobile are prevented from obtaining PIP benefits under any other policy.
Is everyone supposed to have auto insurance? What happens if a driver does not have auto insurance?
The laws of the state of Kansas require that the owner of each vehicle must have minimum auto insurance coverage in effect before the vehicle may be registered or driven in Kansas. The minimum insurance coverage includes liability coverage of at least $25,000 per person per accident and PIP benefits coverage.
If you are not the titled owner of a vehicle and you are injured by an uninsured automobile while you are a passenger in an uninsured automobile, you may receive PIP benefits from a special state-operated plan.
If you are injured by a driver who is driving an uninsured automobile, you will probably have special insurance on your vehicle which will pay you for your bodily injuries damages which you are entitled to recover from the uninsured driver. This special insurance only applies to your injuries and not the property damage done to your automobile.
I was injured by a hit-and-run driver. Am I out of luck?
No. If you are the owner of an insured vehicle or were a passenger in an insured vehicle in the hit-and-run collision you will be able to recover all or part of your bodily injury damages under special insurance provided to the insured vehicle. The benefits of this special insurance is also available to you if another member of your household owns an insured vehicle. Special rules apply for cases in which the hit-and-run vehicle did not hit you or your vehicle.
The person who caused my accident only has $10,000 in auto insurance coverage. Can I sue them and take their property to pay my losses?
Maybe. Instead of attempting to collect the damages from the person, you can recover all or at least part of your damages in excess of the $10,000 coverage from special insurance provided in your own auto insurance policy. If you have higher limits on your auto insurance, you have larger coverage for these excess damages. It is not likely to be worthwhile to sue the person responsible for your injuries in order to recover your damages in excess of $10,000.
As a practical matter, if the person who caused your injuries has inadequate insurance coverage, you will be unable to collect those damages in excess of the insurance policy from that person. This is because such person’s home, automobile and certain other property cannot be taken to satisfy the debt to you.
If faced with losing property to pay you, the other person will probably obtain a discharge of the debt in bankruptcy. Finally, such a person who has low limits is unlikely to have any property from which to pay the debt to you. After your insurance company has paid you the additional amounts for your damages then it has the right to try to collect this money from the property of the other person. Because of the difficulty involved, insurance companies are not generally very active in pursuing recovery of the payments from the person’s property.
Making a claim for this special insurance coverage under your auto policy is not a permissible reason for your auto insurer to cancel your policy or to raise your rates. This special insurance coverage is separate from the liability portion of your auto insurance. You pay a separate premium for this special coverage. A claim for this special insurance is considered a non-chargeable loss.
I don’t know any doctors. How do I know who to see? Do I need to see a specialist?
Your attorney will discuss with you the options that you have for treatment. Under your auto insurance, you have the opportunity to select that physician and treatment which you believe will provide you with the best medical result and greatest improvement.
Your attorney will be able to supply you with the names of many doctors who you might choose to see. Your attorney’s experience in handling hundreds of these cases will permit you to discuss the appropriateness of a particular doctor to treat your injuries.
As your medical treatment progresses, your attorney will discuss with you any other medical treatment options which should be considered. Generally, it is not necessary to immediately be seen by specialist. If you fail to improve satisfactorily after a period of time, then your seeking a referral to a specialist should be strongly considered.
Can I get a rental car while my own vehicle is being repaired?
Your own policy may provide for a substitute vehicle while yours is being repaired. The insurer of the person causing the accident may offer to provide a rental car. We will review your auto policy and request your insurer or the other person’s insurer to provide a rental car for you. Please ask us to assist you in making these arrangements.
Who pays for the damages to my car?
Generally we will be looking to the other person’s insurance to take care of the damages to your car or truck. The property damage claim is ordinarily settled early on while your claim for bodily injuries remains open. A properly prepared release for the property damage claim will not release your claims for injuries which you have sustained. You should discuss such a release with your attorney. If your auto insurance provides “collision coverage,” you will have an option as to how to immediately pay for the repairs to your car. You can submit the claim under your policy and pay the deductible.
This approach is used if there is a question as to who is responsible for the collision. Also you would possibly choose to submit the repairs under your own policy if you are having difficulty with the other person’s insurance company and are unable to reach an appropriate determination of the damages to your car.
What should I do if an adjuster from an insurance company calls?
If an adjuster for the insurance company for the person who caused your injuries should telephone you or come to your home, please tell the adjuster to contact your attorney and give the adjuster our telephone number. We have found that even a casual conversation with an adjuster can have serious consequences to the success of your injury claim. In no event should you ever sign any paper or give a statement to the adjuster without first discussing this with your attorneys. The same warning applies to any contact with adjusters for your own auto insurance company.
Courteously tell the adjuster of your insurance company to contact your attorneys. You need not and should not say anything else. Because of the benefits to which you are entitled under your own auto insurance, the relationship between yourself and your company is adversary.
Your company is entitled to proper loss information but your attorneys working with you will provide it to your company. We have experienced our client’s own insurance company requiring an examination by a strange doctor in an attempt to manufacture evidence that our client was not injured.
Will insurance companies hire people to follow and watch me?
Perhaps. We are aware of cases in which injury victims have been followed and videotaped with surveillance equipment. By heeding your doctor’s restrictions on your physical activities and conducting yourself accordingly, this should not be a problem.
How much is my claim worth?
The value of your claim is based on a complex mix of factors. No one particular factor is determinative of the value of your claim. All of these factors must be considered to accurately determine the value of your claim.
Your injury claim is comprised of three basic elements: 1) medical expenses, 2) loss of time and income and 3)pain, suffering and disability. The same injury to different persons will not result in the same value.
For example, the value of the loss of a foot will be much greater for a professional football place kicker than for an office worker. Generally speaking, the greater the amount of monetary damages for items such as loss of earnings and income, and medical expenses, the greater the value of the claim. These items are less subjective and can be more accurately demonstrated than the intangible losses of pain and suffering and disability.
Your attorneys will give you their best judgment as to the range of values for injuries similar to yours. This is merely a guesstimate at the outset of your claim. Until the medical treatment has been provided, and the long-term effects of your injuries can be more accurately assessed, we are unable to form an informed judgment as to the value of your particular claim.
Using their experience in successfully handling hundreds such cases in the past and having a sense of what a jury would think of your claim, your attorney can tell you the value of your claim once your medical condition has stabilized and the probable long term effects of your injury are known.
How long will it take to conclude my injury claim?
The time needed to process your claim depends primarily on the length of time required for your medical treatment. After you have reached a point of maximum medical improvement, we will evaluate your claim and attempt to conclude it by negotiation. We strive to complete cases within four months after our clients reach maximum medical improvement.
Do most case settle out of court or do they go to trial?
The vast majority of all claims are settled out of court. Only a very small percentage of all claims actually result in a complete jury trial. The probability is very great that your claim can be successfully concluded without the necessity of even bringing a lawsuit against the persons who caused your injuries. Even after a lawsuit is filed for a claim, the probability is very great that the case will be settled and concluded successfully without going to trial.
How long does it take for a case to go to trial?
Depending upon the Court in which the case is filed, a case will generally be tried between six to twelve months after the lawsuit is filed.
What is the amount of my attorney fees?
The attorney’s fee for concluding your claim is a percentage of your total recovery after the expenses for preparing your claim have first been deducted. The percentage of the fee varies with the difficulty of proving a case. The percentage ranges from 50% to 33%. Our usual fee in an automobile collision injury claim is 40%.
In cases in which the liability for a person’s damages is clear cut and easily proven, we may set our attorney fees at the reduced rate of 33 1/3%. Our attorney’s fee percentage remains constant regardless of the point at which your claim is finally settled. Although some law firms charge a greater percentage fee if the claim is settled after a lawsuit is filed, our firm does not use such a sliding scale.
We will do our best to maximize your recovery regardless of whether it is necessary to file a lawsuit or not. We believe that the sliding scale utilized by some attorneys can be subject to abuse and encourage the filing of unnecessary lawsuits in order to justify a greater fee.
The attorney’s fee does not include the expenses which we advance and pay to other persons in the preparation and presentation of your claim. These expenses include the costs of medical records, doctor’s reports and testimony, and payments to other experts for reports and testimony. These expenses are subtracted from the recovery before the percentage for the attorney’s fee is calculated.
You and we pay a proportionate share of these expenses for presentation of your claim. Because we share with you in the payment of these expenses, we strive to keep such expenses at a minimum consistent with the effective development and presentation of your injury claim.
Can I get help for an automobile collision that happened outside of Kansas?
Yes. We routinely handle automobile collision claims and other injury claims occurring in Missouri and other states. If necessary to commence a lawsuit in some jurisdiction outside of Kansas, we will associate with other attorneys who are members along with us of the American Trial Lawyers Association in that particular foreign jurisdiction. None of these arrangements will increase your attorneys fees.
I was on company business in my own car when I was hit. Does that make any difference?
Yes. Your medical expenses and lost wages will be payable by your company’s workers’ compensation carrier instead of your own auto insurance. In this circumstance, the workers’ compensation is considered the primary coverage for your injuries. You will still be able to recover for your injuries from the company insuring the person that caused your injuries. In addition you have a workers’ compensation claim. Even though a double recovery is not allowed, we can discuss with you whether pursuing a workers’ compensation claim would be beneficial for you.
I may be partially at fault for the accident. Does that mean I cannot recover anything?
Kansas laws provide that you may recover a percentage of your damages if your fault is less than 50% of all of the fault causing the accident. If your fault is 50% or more, you may not recover anything. If your claim is subject to the law of another state, different rules apply. The laws in Missouri permit you to recover a percentage of your damages even if your fault is greater than 50%.
Can Ankerholz and Smith help me or my family with legal matters other than automobile injuries?
Yes. In fact, we would like to be your family’s personal attorneys. We handle a wide variety of claims involving injuries to persons. These range from on-the-job injuries to more complex defective product claims. In addition to injury claims, our firm can provide legal counsel on a wide range of personal legal services, including divorce, estate planning and traffic matters. If you have questions about other legal matters, please do not hesitate to ask us. We are here to help.