There is nothing worse then being injured in a Kentucky car accident. You are in pain. You look for a lawyer to guide you and help you deal with the insurance company. You want to get a fair settlement and the best legal advice. Your lawyer sends you to a doctor for treatment. They even arrange for you to fly to another state for surgery. You settle your case and get your settlement money, after your attorney and doctors are paid. This is the way it suppose to go, isn’t it? I would say yes unless you are Sharon Langford.         

We have all seen the billboards and the television commercials about the “aggressive attorneys” formally “Winters, Yonkers and Rousselle” now “Winters and Yonkers”.  Whether you are a fan of this type of legal advertising or not, you have to admit that it works because everyone in Louisville, Kentucky knows the name of this Florida based law firm.  The firm has recently been sued in Jefferson Circuit Court by a former client, Sharon Langford.

            Ms. Langford was injured in a car accident in June of 2008.  She alleges that she was not told that her personal health insurance would potentially pay for her medical bills after her PIP benefits were exhausted. PIP benefits are also known as No-Fault Benefits or Personal Injury Protection. She was referred to a medical care clinic called First Physicians Rehabilitation Inc. by the law firm according to the lawsuit. She was told they would take care of injuries suffered in a car accident.  It is reported that the medical facility did not accept health insurance only PIP car insurance. 

Later when Langford needed surgery the firm flew her to another clinic in Florida.  In the lawsuit Langford states that she discovered later that both clinics were owned by Gary Kompothecras, a chiropractor, who also owns the Hepley advertisement referral service 1?800?ASK?GARY.  Langford also alleges in her lawsuit that the relationship between the law firm and the clinic cost her money.  Her attorney, Sam Carl, states that medical bills paid after PIP totaled over $64,000.00.  Health insurance would have paid a portion of this leaving additional money to Langford after settlement of the lawsuit. You can read the courier journal article that I linked above with further details. 

The question that comes to mind is whether or not the referrals to and between the medical clinic and the law office should be disclosed to clients.  It is alleged that this is a requirement.  I would argue that a client should be referred to the best doctor available and not a doctor that is only referring business to the law firm.  I often refer clients to doctors. Those clients would otherwise have no idea where to go.  I give them the name of several doctors based on their needs.  Many family doctors do not want to handle lawsuits or auto accident suits nor do they understand how to bill car insurance for payment for their medical services. 

The question always comes down to what is best for the client.  Any relationship between a doctor and a lawyer should be disclosed to the client. I will watch with interest Sam Carl’s case to see what direction it does go.  It’s safe to say it should be educational for Kentucky auto accident victims and give them the knowledge they need to ask questions of their attorneys as to the relationship between the attorney and the doctor.

We all know that seat belts save lives. Wearing seat belts prevent serious auto accidents. I have hammered this home to my daughters since they were old enough to understand. I wouldn’t turn the car around in the drive way without making them buckle up. Maybe I was a bit over the top, but as a personal injury attorney and a former prosecutor I have seen fatal auto accidents and serious injuries that could have been prevented had these accident victims been wearing their seat belts.

I remember the first time I really came to understand this as if it was yesterday. I was working as an Assistant Commonwealth’s Attorney in Jefferson County. I was a member of the Fatal Accident Support Team. I was called out to the scene of fatal accidents in the middle of the night. I drug myself out of bed to an accident scene that involved drunk driving. This was in the late 80’s not long after the horrific Carrolton, Kentucky Bus Accident.

I arrived at the accident scene in the south end of Louisville. When I arrived I was advised as to what had happened. I was asked to review a search warrant to obtain a blood sample to be use to prove the intoxication level of the drunk driver. After I had done my job the investigating officer took me over to the car of the accident victim. He said the driver, an elderly man, was not wearing a seat belt. I am sure I was being tested since I was only three years out of law school. At that time the police officer took my right hand and placed it on the chest of the deceased. It felt like jello. Every bone had been crushed. I realized at that moment that seat belts save lives. My perspective of seat belts had been changed forever.

Why do so many Kentuckians refuse to wear seat belts if they save lives? We have all seen the “Click It or Ticket” campaign. Over 23,000 people are cited for not wearing a seat belt annually on Kentucky roadways. We know that it is against the law and it prevents injuries and deaths.

I saw a video on CNN that might change your opinion of seat belt usage. It is an original approach to road safety advertising from the Sussex Safer Roads Partnership. The title of the piece is “Embrace Life. Always Wear A Seat Belt.” Check it out. It is powerful! It drives home the point that not wearing a seat belt will affect you and your family. Take care of you and your loved ones. Wear a seat belt and prevent car accidents that can change your life. Drive safe Kentucky.

            Groups, such as FocusDriven, who are pushing for texting while driving bans, are at odds with the automakers in many aspects.  We all know that any time we take our eyes away attracting high interest from Intel and Google as a source of business in the future.  The dollar from the road it increases the chance of an automobile accident. Despite this auto manufacturers have unveiled new technology, which although it is really cool, will add to this problem. In the near future cars will have Internet connected computers right in the front seat, smack dab in the middle of the dashboard. These new dashboard computers are signs are definitely there. This is technology that people must have.  It is viewed as an item people will not be able to live without. The screens are approximately 10?inches and located above the gear shift. They show high definition videos, 3?D maps, and web pages.   

Safety advocate groups are up in arms claiming that these devices will just create more deaths.  Nicholas A. Ashford, a professor of technology and policy at the Massachusetts Institute of Technology, stated “unfortunately and sadly, it is a continuation of the pursuit of profit over safety, for both drivers and pedestrians”.   

Audi has a system on its way that will be available this fall.  It is a pop down with a touch pad.  Apparently a notice that pops up when the system is on reads “Please only use the online service when traffic conditions allow you to do so safely”.  Does Audi really believe this is going to work?  If somebody has this toy and it is available any warning will be ignored or a distraction in and of itself.   

There are voice commands systems that are available from some manufacturers but the video is still going to be available and located front and center.  Other companies, such as Ford and their new My Ford system, will allow the driver to adjust the temperature for a friend while the car is in motion but it will only allow you to use the web browser when the car is in park.  These systems are going to have WiFi capability and USB ports. They are a computer in the car.  As predicted by Michael Rayfield, a general manager at NVIDIA, a chip company, that cars are going to become the most immersive consumer electronic device we have.  

We have come a long ways since the horse and buggy days and in some ways maybe we should go back. When we are driving we should be only driving!

I was driving my 16 year old daughter to school this morning.  She has her driver’s permit and is learning to drive and is very excited about it.  She told me that there was a program on Channel 1 at her high school here in Louisville that was preempted by the school.  For those of you that are not familiar with Channel 1, it is a national news program that is shown in high schools. My daughter’s school felt that the content was too graphic.  So what does a sixteen year old do if her school tells her she can’t watch a video because it is too graphic? She gets on the computer and performs a search on YouTube and was and finds the program. 

The preempted program is a community awareness ad from the United Kingdom depicting the dangers of text messaging and driving by teenagers.  I have to admit that it was very graphic.  It showed three teenage girls driving down the road while using a phone to send a text message to a friend.  They were driving and paying more attention to the phone then to the road. Their car went across the center line and struck another car head-on. The airbags deployed.  Heads hit the windshield. There was blood everywhere. As the car came to a stop it was T-boned by another car. One girl died in the lap of the driver. 

It went on to show the families in the other cars.  There was a toddler who kept asking; “Why won’t mommy and daddy wake up?” A child in a car seat was also shown motionless with eyes wide open, obviously dead.

Although it was quite graphic I disagree with the school’s decision to pull this informational video. Teenagers who are new drivers generally have no idea as to what the real dangers that driving a car entails and how text messaging behind the wheel can affect not only their life, but the lives of others.  I don’t believe that most teenagers have a true understanding of the real dangers of driving a car. My old boss at the Commonwealth attorney’s office, Ernie Jasmine used to refer to an automobile with a drunk driver behind the wheel as a 2-ton projectile with a license to kill.  I believe he would have referred to a driver who is texting in the same way. Teen drivers need to be shown that a car is a very dangerous weapon that can kill people and change their lives forever. 

Click here if you want to watch this video.  The video is graphic, but no more graphic than what we watch on the crime shows on television.  I believe all drivers should view this.  This type of public awareness ad could help make our Kentucky roads safer and help eliminate serious automobile accidents that occur almost every day due to driver inattention.

Kentucky accident victims have a serious problem that I am seeing over and over again in my office. Unfortunately the frequency has increased. The problem is not with the accident victim but with the person that caused the accident. The at-fault party has been charged criminally with a variety of charges that include “Operating on a Suspended License” and “No Insurance”. I believe this has a lot to do with the economy and the “R” word. People are forced to make a choice between keeping their car insurance paid up, renewing the registration on their car and even paying speeding tickets as opposed to going to the grocery. The grocery is winning out.

How does all of this affect the Kentucky accident victim? There are a variety of reasons that Kentucky driving privileges are suspended for. It can be as a result of a Drunk Driving conviction or for habitual speeding. Those with suspended drivers licenses are dangerous drivers that keep driving. Unfortunately, they often cause serious automobile accidents. What is even worse, many car insurance policies will not cover the accident because the driver is in violation of the law, and thus the terms of the policy.

Other times the at-fault party doesn’t have car insurance to cover an accident. The coverage was not available because they have not paid their premium. As I said I am seeing this more and more frequently. What can be done?

There is new technology on the horizon, which may beat the low tech solution of simply impounding the offending party’s car (which is a short term fix at best). I read about a potential option on TheTennesseeAutoAccidentAttorney blog that is in the development stage called the Electronic Drivers License (EDLs). What is an EDL? It is similar to a bank card or a “smart card” that works together with an ignition interlock system (these are used to prevent habitual drunk drivers from getting behind the wheel). It is an on board computer that would verify the drivers identity in order to authorize the operation of the car. Along with verifying the identity of the driver the EDL system will have the ability of providing travel information such as time of day and speed prior to an impact. This is similar to a black box that we often hear about in airplanes. This is also standard equipment on many luxury automobiles and is referred to as an Event Data Recorder. I believe they will be required equipment on all cars in the near future.

This sounds great and will prevent some serious automobile accidents, but how will we know that the person behind the wheel is not using someone else’s card? There will need to be some sort of authorization system, such as voice recognition, finger print identification or maybe a Home Incarceration style of bracelet. Another option would be a system similar to the Owner Compliance Key that blocks cell phone usage within a three foot radius of the driver. I will be following the development of EDLs and keep you posted.

But what can you do to protect yourself from these uninsured drivers? You must make sure that you have uninsured and underinsured motorist coverage on your own car insurance policy. This is not an option anymore. Never ever waive uninsured and underinsured motorist coverage. If you are injured in an automobile accident in Kentucky and the person that hit you does not have insurance you will not be compensated unless YOU have this coverage on your policy. There will be no compensation for loss of power to labor and earn money. There will be no compensation for medical bills. There will be non compensation for pain and suffering. That is unless you have uninsured motorist coverage. Call your insurance agent today and ask if you have this coverage. If the answer is yes and you do have this coverage; raise the limits. If the answer is no; add it immediately!

Should you have any questions about insurance check out my book: “What You Don’t Know About Buying Car Insurance Can Hurt You”, Kentucky’s Ultimate Guide To Buying Car Insurance”. Go to my website and I will send you your book valued at $14.95 free of charge. Protect yourself and make sure you have the right coverage.

Don’t put yourself in a situation where you are injured in an accident and the at-fault party doesn’t have insurance. I don’t want to be the attorney that has to tell there is nothing I can do for you because you don’t have uninsured motorist coverage.

Are high performance sports cars more likely to cause car accidents? The reason I ask this question is my oldest daughter will be turning 21 in January. This is a major milestone birthday. She is a student at the University of Louisville School of Business and works at UPS. Since she has a good job and she earns her own money and has decided that it is time to get rid of her Volkswagen Jetta. She wants a sports car. A high performance car. I am not sure I am ready for this. Is this a bad and dangerous idea?

Now this doesn’t sound so bad until I think back to my first car. A 1968 Pontiac Firebird. It was orange with black racing stripes and referred to as “The Bird”. It was a fast car and it caused some problems on the road for me that I will not discuss here. Let me just say that the Ford Falcon I had for my second car was not as troublesome.

Reminiscing got me to thinking ans then worrying. First, how much fun a sports car is to drive. The power is exhilarating to say the least.  Then I started thinking about my experiences with “The Bird”. This new car my daughter is buying is going to be a lot more dangerous do be on the road. There is a greater chance of her being in a car accident. Maybe I should put my foot down and say no (Like that would really do any good).

Are sports cars really more dangerous? Are they less safe? Is a sports car more likely to be in an auto accident? Like any parent I am concerned about safety. Teens are less experienced drivers and many studies show that they are involved in significantly more automobile accidents in Kentucky. Putting a teen behind the wheel of a high performance car is a bad idea, pure and simple. The statistic go down at the 20 year mark.  They have more experience at this point and are better drivers.

Most sports cars rank high on the most expensive cars to insure. Typically mini-vans are the least expensive. An exception to this is Porsche 911. Is it the car or the driver? More than likely it is a little of both.

The fact of the matter is that a sports car tempts you to go fast, because you can. I find no statistic that show that sports car are in more accidents then a 4-cylinder vehicle. It comes down to the driver. As long as the driver exercises good judgement and obeys the rule of our Kentucky highways they will be fine. Talking to your children candidly and continuing to emphasize good driving habits is extremely important. Keep talking about safe driving so that these habits and your words are in their mind. This helps to reduce the risk of your child being involved in a catastrophic automobile accident. I hope and pray my daughter continues to exercise good judgement behind the wheel with her new sports car.

Whose fault is this accident? Tony is driving down a busy road. He is going at exactly the speed limit. All of the sudden the car you are following slams on the brakes to avoid hitting a ball that bounces into the road and the four year old boy that is darting into the street after it. Tony immediately slammed on his brakes but could not stop in time. He crashed into the back of the car he was following.

You are probably thinking that Tony didn’t have a chance. He did everything he could to avoid the accident. If the car hadn’t stopped in front of Tony the accident would never have happened. This was a sudden emergency. This car accident could not have been Tony’s fault. Wrong!

In Kentucky you are required to have your car under control at all times. You should be able to avoid the car in front of you. There are very few fact scenarios where you would be involved in a rear end accident and it would be the fault of the car that was rear ended. One situation I can think of would be if a car suddenly cut in front of you from another lane without giving you ample distance and then stopped abruptly.

Kentucky does have a “Sudden Emergency” doctrine. This is considered a defense or a justification for a negligent act, such as slamming into the back of another car. The Kentucky Courts have defined a “sudden emergency” as a situation where a person is suddenly confronted by an emergency situation that allows no time for deliberation. There must be a choice made between alternative courses of action. You must voluntarily choose one over the other. 

This sounds like what happened to Tony, but the Kentucky Courts have recently addressed this issue in Robinson v. Lansford, Ky. App., 222 S.W.3d 242 (2006). Here a car, the plaintiff, stopped suddenly in front of the defendant. The defendant had stopped because he crashed into a car in front. This is called a chain reaction collision. The Court said this was a “sudden occurrence” and not a “sudden emergency”.  The Court reasoned that the defendant took no action as a result of the sudden encounter, such as swerving into the other lane of traffic. He was simply unable to avoid the collision.

The moral of the story: Under Kentucky law if you take no action as a result of a sudden encounter there is no “sudden emergency” and the accident is your fault. The bottom line is you should give yourself enough space between you and the car in front of you to stop no matter what. Expect the unexpected or you might end up being a defendant in a Kentucky accident case.    

What does Tim Tebow have in common with victims of rear end automobile accidents? After last Saturday the answer is concussion and whiplash. If you are a football fan you have seen the tragic and scary footage of the tackle and injury to Florida Gator quarterback, Tim Tebow.  For those of you living in a cave Tebow was sacked by Kentucky Wildcat defensive end, Taylor Wyndham during Saturday’s game at Commonwealth Stadium in Lexington, Kentucky.

Tebow’s head and neck suffered two hits on this play that ended his day.  The first when Wyndham’s helmet impacted the face mask of Tebow’s helmet. This collision moved Tebow’s head suddenly to the right as he fell to the ground.  During the fall Tebow incurred a second impact when the back of his helmet hit the knee of a team mate, Gator Right Tackle Marcus Gilurt. This second impact sent Tebow’s head forward in a whiplash type motion. Tebow fell to the ground motionless. He was taken from the field after what seemed like an eternity.

Tebow has been reported to have suffered a concussion. I have not seen mentioned a whiplash diagnosis, but I am convinced that he has a muscle strain or whiplash injury to the neck.

Why am I talking about football? After all I am an accident attorney and think a little differently than a lot of people. When I was watching the Florida v. Kentucky game and then the many replays of the injury I thought that the motion of Tebow’s head and neck was very similar to those I have seen in Kentucky car accidents. I have watched videos and talked to hundreds of clients who have been involved in rear end auto accidents. These collisions have thrown their head back against the head rest at impact and then whip it violently forward.  This is similar to the two motions Tebow’s head and neck went through.

Auto accident victims commonly suffer from concussions and whiplash similar to what Tim Tebow is recovering from as we speak. You might think that an auto accident victim’s head usually doesn’t hit anything in the collision.  Well, unfortunately their brain does. The brain bounces off of the inside of the skull. It can also have a more obvious impact, such as a window or a steering wheel.

What is a concussion? It is a brain injury that is commonly caused by a sudden blow to the head. The blow causes the shaken brain not to work properly for a period of time. We saw this sudden blow to the head watching Tebow’s injury. This also occurs to different degrees in auto accidents. The severity of the concussion often depends on the severity of the impact. This is the force or the speed that the neck and head are propelled, not necessarily the amount of property damage.

Often you can tell if someone has suffered a concussion by observation of that person. Symptoms related to concussions include:

·         Passing Out

·         Memory Problems

·         Confusion

·         Slurred Speech

·         Ringing In The Ears

·         Light Headed

·         Seeing Stars

·         Blurry Vision

·         Not Able To Stand Or Walk

·         Balance Problems

·         Nauseous Or Throwing Up

You often see these symptoms from concussions suffered in automobile accident and sporting events. Treatment for a concussion generally begins with watching and observing the person who suffered a blow very closely. You are watching for behavioral changes and any manifestation of the above symptoms. For most victims of concussions to recover merely takes time.  It is usually suggested to take it easy and get plenty of sleep.

The amount of time it takes to recover depends on the severity of the concussion. There are three grades of concussions:

·         Grade I – This consists of transient confusion and headaches with no loss of consciousness. Symptoms usually clear in less than fifteen minutes. Grade I concussions commonly occur in automobile accidents.

·         Grade II – This grade has the same symptoms as Grade I but the symptoms last longer than fifteen minutes.

·         Grade III – This grade involves any loss of consciousness, whether it is a few seconds or several minutes. The recovery period for a Grade III concussion is at least one week.

Tebow exhibited symptoms of a Grade III concussion since he was out cold and not moving for several minutes. We could also observe the confusion, loss of balance and vomiting. I wish him a speedy recovery.

I also believe Tebow suffered a whiplash injury. This is a very common injury in rear end auto collisions. Whiplash is ligament damage in the neck or cervical area caused by a sudden whipping or movement of the head. These injuries can take days or months to heal. Sometimes the affects of a whiplash injury are felt and suffered for a lifetime.

Although neither a concussion nor a whiplash injury (soft tissue) is a visible injury, they are dangerous and painful. Anyone who has been in an auto accident and has any of the above symptoms should be checked out by a doctor. Don’t take a chance. Tim Tebow has the best chance of a full recovery because of the immediate medical attention he received. When you are in automobile accident and have any symptoms of a concussion or neck pain get checked out immediately.

Utah has recently upped the ante. They have passed by far the toughest law in the United States against the growing epidemic of texting and driving. Get caught texting and driving in Utah and you are looking at prison time of up to 15 years if you cause a death and a fine of up to $10,000.00. If they are merely caught texting and driving the punishment is up to 3 months jail and up to a $750.00 fine. A far cry from the absolutely nothing that is on the books in Kentucky.

I believe it is time for the Kentucky legislature to take this issue under serious consideration and pass a tough law. I have way too many clients that have been injured due to a distracted driver. Whether they are texting, dialing a number on a cell phone or picking something up off of the floor it is dangerous. The consequences are severe and can change the direction of the accident victim’s life.

Utah’s new law became affective in May of this year. The penalties for texting are comparable to those of drunk driving if someone is killed in the accident. If you are texting while driving in Utah your actions are considered reckless. Choosing to text and drive is considered to be the same thing as choosing to get behind the wheel drunk.

This law is the harshest response to multi-tasking behind the wheel and is sure to be a topic of discussion at the National Summit for Distracted Driving this fall. Some studies show that talking on a cell phone while driving is as dangerous as driving with a blood alcohol level of .08, which is the legal limit in Kentucky.

There could be some problems with proving the conduct of texting and obtaining a criminal conviction under the Utah law. How do you prove someone was texting and driving? There is no test to prove that you were texting like there is for drunk driving. A breathalyzer makes the prosecutions’ job fairly easy.  A witness could be easily discredited. They only see the action. It could be texting or it could be dialing a phone number. Maybe the best evidence will be statements of the offender. Any statements can be used if they are made spontaneously. This coupled with the phone would be sufficient proof, but how do the police get access to the phone before the text messages are erased? Maybe a warrant, but this takes time.

I wonder whether the texting activity is the same as dialing a phone. It is the same action. It takes the same level of concentration. Should the Utah law be expanded? Should a distinction be made?

The Utah law also presumes the driver knows the risk of texting and driving. This is important because it goes a step further than many other such laws where it must be proven that the driver is aware of the risks associated with the activity before engaging in that activity.

What will Kentucky do? I really don’t have a clue. I believe penalties need to be put in place to deter this very dangerous activity. It is at an epidemic level. You will see people looking to their cell phones as you drive to and from work. This inattention causes accidents. Personally I believe that criminal penalties that include prison time for causing a death are appropriate. This will save lives, prevent auotomobile accidents and make our Kentucky roads much safer.

I received a phone call yesterday from a potential client that I just shook my head after I hung up the phone. I was asked this question:

How do I get my $10,000.00? I was in a car wreck yesterday
and I need my money.

This question disturbed me so I inquired further and asked how the accident happened and what the injuries were. The reply was that there was no injury they just wanted their car wreck money.    I get a similar question from someone just about every week. The motive is usually not as clearly for money. It is usually just a lack of understanding of the Kentucky PIP statute and how it actually applies to a Kentucky car accident.

There are bus ads and television commercials you see everyday telling you that if you have been in a car accident you are entitled to $10,000.00. These ads are not lies but they do not tell you the whole truth. They make you believe that there is this magical pot of money waiting for you if you have been involved in a Kentucky car accident.

There is $10,000.00 of benefits available but it is not just because you have been in a car accident. They are there if you have been hurt! Not just because you were in a wreck. A car accident is not hitting the lottery. It is not a way to pay off your bills and put your kids through college. There is not a client I represent who wouldn’t give the money back if they could only be the way they were before the accident.

There are several names for this $10,000.00. It is called:

• PIP Benefits

• No-Fault Benefits

• Basic Reparation Benefits

• Added Reparation Benefits (If you are lucky and have a good insurance agent that has advised you of the availability of these in Kentucky)

The Kentucky No-Fault Statute was enacted by our legislature to make sure that motor vehicle accident victims would receive the medical care they need without being hassled by the insurance company of the car that hit them. I will not go into all of the different benefits here, as I  have written many blogs and a book that thoroughly covers this subject. Basically you are entitled to have your first $10,000.00 of medical bills and or loss wages paid(at a maximum of $200.00 per week). This is money to ensure you get the treatment and care that you need paid by your own insurance company. It doesn’t matter whether the accident was your fault or not. You can still go to the doctor. It is not a windfall, it is a method to ensure accident victims get the treatment and medical care they need.

The next time you see one of the commercials offering $10,000.00 for your car accident you can say I know what that money is really for. There is no give away or lottery. This is money to make sure the injured accident victim gets the medical treatment they need.