Medical payments coverage through your automobile insurance is often an overlooked and sometimes misunderstood coverage. Reasonably, consumers are more interested how much coverage they have for liability (if they are at fault), underinsured/uninsured (if someone else is at fault but not sufficiently insured), or collision/comprehensive (how much it will cost to get their vehicle repaired). In terms of premium dollars allocated, medical payments coverage ranks low.

It is important to understand your medical payments coverage because if you are in an accident, regardless of fault, it is often the first “pot of money” that pays for medical treatment. Medical payments coverage is what is known as “no fault” coverage, it pays for medical expenses incurred because of an accident regardless of whether you or someone else is at fault.

1. What dollar amount you are covered for; the most common medical payments limit is $10,000 per person. However, coverages can range from as low as $1,000 (not recommended) all the way up to $100,000.
2. You should check your policy to see whether your medical payments coverage is primary or secondary/excess. Most medical payments coverage is primary; that is, medical payments would pay and be used up before normal health insurance starts paying. However, there are some insurers that have their medical payments coverage as excess or secondary. In this scenario, the accident-related treatment would have to be first submitted to normal health insurance, and medical payments coverage would pay what remains, such as any deductible, co-pay, coinsurance, and/or if the treatment was denied by health insurance.
3. You will want to know by when the coverage must be used. Some policies are written that the coverage must be used within one year of the accident; some policies say use within three years of the accident; and, even some are written that if treatment is started within one year of the accident, then they will cover it for three years from the accident date.
4. if you receive a settlement or judgment from the at-fault party or their insurer, your insurer, that paid medical expenses on your behalf, may have the right to subrogation/reimbursement for the payments made. Fortunately, all medical payments coverage insurance in Wisconsin is subject to the Made Whole and Common Fund doctrines, which can be used to reduce the amount that has to be paid back to your insurance company out of any settlement/judgment.

As you can see, medical payments coverage is not a simple issue of have it vs. don’t have it. Depending on how much coverage you purchased and how the policy is written will determine how the coverage is utilized after an accident. Of course, contacting and retaining a skilled attorney can help you strategize how to effectively use medical payments coverage to minimize your out-of-pocket expenses after an accident. If you are in a vehicle accident, don’t be a vitcim twice, make an appointment for a free consultation with one of our skilled personal injury attorneys.

As a landowner, you might wonder whether you need to be concerned about injuries that occur when someone trespasses on your property. Generally, trespassers enter your land at their own risk. Both common sense and the law acknowledge that you have “no duty to anticipate a trespasser’s entry or to provide for a trespasser’s safety.” Your only duty is to “refrain from acts which willfully, wantonly, or recklessly cause injury or death to trespassers.” To be clear, posting a sign warning that “trespassers will be shot” does not make it legal to harm someone.

However, there is an important exception known as the “attractive nuisance” doctrine. Despite the flashy name, attractive nuisance is better understood as “liability for artificial conditions that are highly dangerous to the safety of trespassing children.” Under this doctrine, a landowner may be liable to an injured trespassing child if:

1. The possessor of real property maintained, or allowed to exist, an artificial condition on the property that was inherently dangerous to children.
2. The possessor of real property knew or should have known that children trespassed on the property.
3. The possessor of real property knew or should have known that the artificial condition he or she maintained or allowed to exist was inherently dangerous to children and involved an unreasonable risk of serious bodily harm or death to children.
4. The injured or killed child, because of their youth or tender age, did not discover the condition or realize the risk involved in entering onto the property or in playing in close proximity to the inherently dangerous artificial condition.
5. The possessor of real property could have reasonably provided safeguards that would have removed the inherent danger without interfering with the purpose for which the artificial condition was maintained or allowed to exist.

Examples of attractive nuisance include an “insufficiently guarded swimming pool,” poorly guarded or defective trampolines, and a dangerous accumulation of junked cars. While not exhaustive, this list provides examples of artificial conditions that, if not properly safeguarded, could lead to liability.

As a property owner, it is crucial to implement protective measures such as installing locks or fences to prevent children from accessing dangerous conditions. If you have questions or concerns about your property or need advice on how to manage potential liabilities, please contact one of our experienced attorneys. They will be happy to assist you in ensuring your property is safe and legally compliant.

If you are traveling out of state and are injured in an automobile accident due to the fault of another, you may have many questions, including where a claim should be brought, whether you will need a local attorney, and what your rights to recovery are. Your first step should be to alert your automobile insurer so the insurer is on notice of coverages under your policy that are or may be implicated.

For example, the at-fault driver may have insufficient automobile liability limits given the nature and extent of your injuries. If you carry uninsured and underinsured motorist coverage on your automobile policy, your insurer should be on notice of the potential for such a claim. In addition, you likely carry some amount of coverage for medical bills related to the collision under your automobile policy. You will want to establish a claim with your insurer and, provide your insurer’s information to health care providers for billing purposes.

When it comes to legal representation, consulting with an attorney back home may be useful in several respects. First, they may be in a better position to research and recommend local counsel in the state where the collision occurred. Second, you may find yourself in a dispute with your insurer at some point, particularly if an underinsured motorist claim arises. These claims are contractual, meaning that the venue is Wisconsin rather than the state of the collision. Third, given the nature of your injuries, you may require extensive and ongoing treatment following your return home. An out-of-state attorney may desire some involvement from Wisconsin counsel to assist in gathering medical bills and records and coordinating the testimony of treating providers should the case proceed through litigation.

Finally, should your personal injury claim turn into a formal lawsuit, you will undoubtedly find yourself in the legal system of the state of injury. However, your lawyers may have the option of bringing your case in Federal as well as State Court due to the citizenship of the parties. An attorney from the state of injury can discuss the pros and cons of Federal Court versus State Court given their knowledge of the local bench, potential jury pool, and other factors.

If you have an out-of-state automobile accident and require an attorney, please contact our experienced personal injury attorneys to assist you.

Don’t be a victim twice!

After an accident, a new or potential client will often ask me: “Who should handle my wrecked vehicle – my insurance company or the at-fault driver’s insurance company?”  True-to-attorney form, I often respond, “it depends.”

Assuming both insurance companies have property damage coverage, there are pros and cons to each approach. Sometimes it comes down to what is most important at that time: speed and convenience or trying to maximize every possible dollar recovered.

Even though someone else was at fault for the accident, many people will go through their own insurance company for their damaged or totaled vehicle (assuming they have purchased Collision Coverage). Collison Coverage is no-fault coverage, i.e. coverage doesn’t depend on whether you or someone else caused the accident. For this reason your insurance company (ideally) will start processing the claim right away: paying for repairs, or if your car is a total loss, paying for the actual cash value of the vehicle (minus the deductible).  If you have rental coverage, often limited to 30 days, your insurance company will handle that as well.

On the other hand, if you go through the at-fault insurance company for your damaged or wrecked car, there can be a delay in payment as the insurer will want to complete its liability investigation to make sure its insured was indeed responsible for the accident. You may have to wait for the liability insurer to speak with its insured, get police reports and maybe even require a statement from you, which can be fraught with risk. Also, there is the consideration that the at-fault insurance company is an adverse party that has no contractual relationship with you – it doesn’t have the obligation of good faith and fair dealing that you have with your own insurance company.

Given all these potential downsides, why go through the at-fault insurance company?  In addition to not having to make a claim against your own insurance company and theoretically staving off any premium increase, you can potentially recover additional types of damages against the at-fault insurance company.

Even if properly repaired, people intrinsically know that a car that has been in an accident is not worth as much as the equivalent vehicle that has not been an accident. Against the at-fault insurance company, you can pursue a diminished value, or loss of value, claim that takes into consideration that even properly repaired vehicles have diminished value in the eyes of potential buyers. Next, rental coverage with your own insurance company is limited to the coverage in the policy (often 30 days), there is a claim for “loss of use,” against the at-fault insurance company that is for the reasonable period necessary to repair the vehicle or obtain a comparable permanent replacement if your vehicle is totaled. Wis. J.I. CIVIL 1800; Kim v. Am. Fam. Mut. Ins. Co., 176 Wis. 2d 890 (1993). So, if repairs take months, the at-fault insurance company is responsible for paying for a rental or providing you the equivalent value, and you are not limited to the day or dollar limit of your own insurance policy limits

Therefore, the decision of which insurance company to go through for vehicle damage when you are not at fault for the accident, is personal and situational dependent. It is one of many things that an experienced accident attorney can help you navigate following a crash.

If you have questions, or need help following an accident, please reach out to one of our experienced accident and personal injury attorneys.