Another "need legal advice" thread (1 Viewer)

[mylan]

Last friday, my father was hit by a car as he walked out of a Wal-Mart. He said he looked both ways and the only car was stopped at the top of an isle, as he was walking across, she accelerates into him claiming that he was in a blind spot caused by her roof pillar (!). The result of this is a deep gash on his left elbow, road rash on his right elbow and a broken bone in his knee. He had surgery to repair the knee and now faces a month long stay at rehab to hopefully be able to walk as he once did.

This is going to be a costly medical bill and so far her insurance company, Progressive, seems willing to pay but I am feeling like maybe we should involve an attorney to make sure we don't get taken somehow. A rep from her insurance called to inquire about my dad and a question he asked seemed strange, How much do I think his hospital bill was going to cost? How the hell should I know?? Don't they usually get this information from billing?

I did speak with a lawyer who says we can go about it in three ways:
He can counsel me on what to do.
He can work on an hourly basis and take over the case.
he can work on contingency but only if there is enough potential money involved to make it worth his time.
My dad is retired and at 76 is still very active in gardening. There is a chance he may never have full range of movement in that leg. There are no lost wages to consider, we just want his medical bills paid. I have never been in this situation and I could use some guidance.

 

[Dave Nibeck]

I am very sorry to hear about your father's accident. The fact that the lawyer you spoke with gave you three options is telling. If the case were clear cut - from a legal standpoint - the lawyer would have been all over it for contingency. What State did the accident happen?

It can take an insurance company several weeks to conclude a liability investigation. Was there a police report? Wer there any witnesses? Each will probably be interviewed by Progressive. As for Progressive's inquiring about medical bills, they are trying to estimate the potential cost of the claim. If their client had minimal limits of insurance, that could be an issue.

Does you Dad have an auto policy? There may be coverage available under that policy.

As a former claims adjuster, this is my take on attorneys (and of course there are always exceptions). I preferred my claimants being represented. It makes the job of the claim's rep. so much easier. Attorneys generally get higher settlements. However, the higher settlement was usually not enough to offset the cost of representation. In other words, the claimant received less than if they were without representation.

My recommendation, since you asked:

Call the Progressive Rep. Ask were they are on their liability investigation. Also ask them if they think they have a limits issue. They are bound by privacy to not discuss their clients policy. However, they are also charged with protecting their client which means that they will want you to sign a release of liability and waiver of subrogation so your Dad could not go against their client personally. Contact your Dad's insurance company for PIP/Med Pay benefits and possible underinsured liability.

If you can't get anywhere with Progressive, you can always look for another attorney for an opinion.

 

[mylan]

It happened in Georgia.
The police report did not cite her, I took it to be because it was on private property but I have a number to call the police officer on scene but haven't heard back.
He does have a car insurance policy.
I took the attorney's response to mean that if he cannot be certain of a big fee for himself than he would rather bill by the hour and since there is no loss of wages or pain and suffering claims (which he is in pain and is suffering)than it is a small fish case for him.
Wow, so we might need a lawyer but might get less money, such a paradox!
Edit: I don't see how this case could be anything other than clear cut the drivers fault.

 

[hodedofome]

One of my best friends used to work for Progressive, they have a cap as to how much they will pay. I believe it was $25k or $50k, can't remember.

 

[mylan]

I can imagine this will exceed 50K so they better be prepared for a lawsuit, cap or no. What if someone hit a Ferrari?

 

[hodedofome]

Just spoke with my friend, yeah get a lawyer involved. Progressive will only pay a certain amount if you think it's going over even 20k in medical bills.

 

[Dave Nibeck]

Georgia is a comparative negligence State. For simplicity sake, lets say your claim is worth $1000. But you contributed 10% to the negligence of the accident. You would only be able to receive 90% of the $1000. That is a good thing. There are States that use contributory negligence. Under this law if you contribute 1% to the loss, you are totally barred from recovery.

As to your father's claim. It should not matter that the loss happened on private property, the police should have filed a police report as the accident resulted in bodily injury. See what the cop has to say. You also might want to check with the fire department and get any report they did, including the EMS (medical) report. Statements made by the driver at the scene of an accident are admissible in a court of law. (That's why you insurance company tells you to never admit to fault at the scene of an accident).

Based on your Dad's description, liability appears to rest with the other driver.

In Georgia, the minimum level of insurance required to be carried is $25,000. This is why it is important for YOU to carry high limits as well as high uninsured/underinsured (UM/UI) limits.

Let's assume that the person that hit your father only has a $25,000 policy (which is probable with Progressive). If your Dad has higher UM/UI on his own policy, his policy will cover the difference. Let's say your Dad has $100,000 UM/UI coverage. He has access to $75,000 from his carrier to cover this loss on top of Progressive's $25,000.

Now let's go worse case scenario - your Dad only has a basics limit policy also. So there is no money there. If you are seeking more than then $25,000 from Progressive, you will have to bring a suit against the driver. At this point, her auto policy ($25,000) will be considered an asset. You get an award for $x. If she does not pay that award, you then have to file additional actions to enforce the verdict. I am not sure about Georgia law, but in Maryland, many assets are protected from lawsuits. For a married couple, all jointly owned assets cannot be attached. Only those assets solely belonging to the liable person. In Maryland, any asset obtained after marriage is joint asset. See were I am going with this? Unless a person has substantial wealth and assets, it is very hard to actually get money from them.

If she had assets, she probably would not have a minimum limits policy. You can't take what she ain't got. We have succesfully sued people like this (when your company pays under UM/UI, they have a right of subrogation and sometimes work out payment plans, but the money is usually a long time coming).

Let me stress this for anyone reading this thread, if you have assets, you need to have both personal and auto liability limits to protect those assets. Even if you don't have assets, you still need high auto liability limits including UM/UI should you get hit by an uninsured or underinsured driver.

Again, speak with Progressive and file a claim with your Dad's carrier.

As to the lawyer thing...IMO...you can get a lawyer in any part of this process. Lawyers take 30% PLUS expenses (costs of police reports, medical records, etc). If it goes to court, they get 40%. Just because your Dad has a lawyer does that make is claim worth 30 - 40% more? What do you get for your 30%? A legal advocate. Someone who can navigate the claims process and litigation if needed. Someone who has a basic understanding of medical issues. A skilled negotiator. I have suggested to some people in the past that they retain counsel (mostly because they were a pain in the a$$ and I did not want to have to deal with them. The first lawyer you spoke to did not even want to take the case on contigent. This tells me that either 1) he does not want the case or 2) that there is a problem with the case and he does not see any money in it.

I have no idea what a claim like this is worth. It will depend largely on how well he recovers (and this takes years) and the local venue of were the claim took place. The venue is important because it makes a huge difference. In my area, given the right people involved, a $50,000 injury in Baltimore County might be worth $150,000 in Baltimore City.

These claims take a long time to conclude and you don't get paid until they do. You don't want to settle until you understand the full extent of injuries/recovery. And that can take years.

 

[mylan]

Thanks for the information. I can't see how she has any assets, she lives in an apartment and is a single mother, I will ask my dad about his policy because I don't know.
There was a police report filed but it shows that she was not fined, I would have at least thought failure to yield right of way.
I will put in a call to the officer now, i'll have to wait on EMS till I'm off again. I wonder if Wal-Mart has tape of the incident?

 

[Dave Nibeck]

Good call on Walmart camera. Also check with Walmart management. I am sure there were some witnesses. Best to capture their information now instead of trying to track them down in the future.

 

[mylan]

I didn't think about the camera till this morning on the way to work, I hope they don't erase on a regular basis, according to my dad, the manager was super nice and many associates came out to check. I need to strike while it is still fresh on their memory.

 

[Steve_Tk]

The officer did not cite the person because it was private property. Unless it's DUI or reckless driving an officer in Georgia can not cite a citizen for "traffic violations" on private property. Meaning the stop sign in the Publix shopping center means nothing and can not be enforced. It's like putting a stop sign at the end of your driveway. Laws for public roadways do not apply except for the previously mentioned two (there are a couple more, but would not apply in this case).

 

[mylan]

My family has had a bad 2008 so far, my brother-in-law was hit on his motorcycle by an SUV that came out of an apartment complex, clearly her fault but there was no citation. He has been in the hospital since May 21st and risked losing his leg below the knee there for a while, needless to say but we are getting pretty tired of all this!

 

[Marianne]

Wow, so you could plow into a bunch of people on a crossing outside a WalMart and not get cited? If the stop sign can't be enforced then the walkway or speed limit can't be enforced.

 

[cafink]

I imagine that "plowing into a bunch of people" would be considered "reckless driving," which Steve already said one could be cited for on private property.

 

[Eric_L]

how much of your fathers expenses are covered by his medical insurance / medicare? Even though you are covered under medical insurance, you still are likely also due 'reimbursement' from Progressive for those expenses as well. You may also want to check into chiropractic also.

A rule of thumb is that the amount he is due will be his medical costs x 3. If there is a loss of life or limb it goes higher. I don't think a broken bone counts.. If you dad has any potential for knee or joint replacement in his future now is the time to check...

 

[mylan]

how much of your fathers expenses are covered by his medical insurance / medicare? Even though you are covered under medical insurance, you still are likely also due 'reimbursement' from Progressive for those expenses as well. You may also want to check into chiropractic also.


Yes, he should be covered under Medicare. My wife is a nurse at the hospital and has advised me to check into how his billing is going to be worked out with his case manager.

A rule of thumb is that the amount he is due will be his medical costs x 3. If there is a loss of life or limb it goes higher. I don't think a broken bone counts.. If you dad has any potential for knee or joint replacement in his future now is the time to check...[/quote]

Hmm, knee replacement hadn't crossed my mind. Thats something to consider if his does not heal properly or if there is pain. Thanks everyone for your suggestions, keep em coming, much appreciated!

 

[Chris Lockwood]

So you guys are saying my car insurance covers me if I'm hit while walking? I always thought it only applied if I was i the car.

 

[Marianne]

But plowing into one person isn't reckless driving?

What is the definition of reckless driving? Not obeying the speed limit if the speed limit has no legal enforcement because it is on private property?

 

[Steve_Tk]

If walmart choses to put a walkway from the exit in front of the store to the parking lot, and has stop signs posted, an officer can not enforce that stop sign. Walmart has done that to attempt to make their parking lots safer, but stop signs on private property are not enforced on GA traffic laws. Obviously, if someone just plows into a group of people, they were not acting with due regard for life or property, which is what reckless driving is. That scenario may result in a death, which falls under the different code sections for vehicular homicide (1st degree and 2nd degree etc)

Don't read that to think people are not liable for their actions. An officer should respond to all private property accidents, attempt to determine fault, but the person is not cited. Just because there is no citation does not mean there is no fault.

In this situation, a lady made a mistake and hit a pedestrian in a parking lot because she did not see him. Unfortunately accidents happen because people are not paying attention thousands of times a day. Usually it's vehicle vs vehicle resulting in minor damage. Even at slow speeds vehicle vs man, or motorcyle, causes serious problems. Did she break a law by hitting him? No. Is she liable, Probably. I would say yes, but I wasn't there so can't come to a conclusion. I've seen a lot of people walk in front of vehicles because the PERSON was not paying attention. Not saying that happened here though.

 

[Steve_Tk]

Reckless driving in simple forms is driving without due regard for life or property. It can be interpreted a lot of ways. Driving 90 MPH on the interstate is not considered "reckless", at least where I worked. Driving 120 MPH was however. You say "plowing" into someone, you were not at the scene so you can't exactly say he was "plowed" into. In fact, I’d say he wasn't even close to "plowed" into, because that usually always results in serious head injuries. Being plowed into means you can't catch your fall with your elbows and get road rash. It means you are thrown over the car, or from the car off the windshield, or the worst, underneath the car. But being "Plowed" into means you have no control of your 200 pound body as it flies through the air. It means that even if you saw the ground coming, putting your arms out to catch your fall would do nothing.

Extremely MINOR collisions involving vehicles and people's bodies usually result in bad injuries because a vehicle traveling even 10 mph can knock a person a good distance.

She could have been driving 10 MPH, or even idling, and still given this man his injuries. There is a lot of force behind a vehicle. Driving that slow would obviously not be considered reckless. If a car hit you in a parking lot at idle speed, would this person be considered reckless, or inattentive? should they go to jail for reckless driving because they were not paying attention in a parking lot? How many people here have an at fault accident because they were not paying attention? Do they deserve jail time for it?

And how do you define reckless in a parking lot? If a driver were on the road, idling, and rear ended a car because the driver was not paying attention, we would consider this a "fender bender", a "big deal who cares accident". But put the same vehicle in a parking lot, only idling, and the driver once again is not paying attention, well even at idle speed you can seriously injure a pedestrian. Does this mean that all vehicles must travel and less than idle speed because anything over that is reckless? Of course not. The person should not be cited for the accident for reckless conduct, but is liable for the person's injuries. If they were in fact driving "reckless", then the pedestrian would be dead or much worse off. Just have to take my word for it. I pulled a dead woman out from under a car because a family car with three screaming children distracted their mother and she backed down her driveway into her neighbor who was going for an afternoon walk. Was she driving recklessly? Not really, everyone does that. Was she negligent and liable for her actions, absolutely. I saw a man die from a head injury on a residential street after being struck by a child on a bike. He was thrown backwards, attempted to catch his fall, and struck his head on the pavement. Even slow speeds with cars, or bikes, can kill very easily.