Personal Injury through Another Driver’s Negligence

Q: I was involved in a serious motor vehicle accident in which I broke my leg due to another driver’s negligence. I have been in touch with the other driver’s insurance company who has indicated that he has the minimum 20/40 coverage available to cover my injuries and medical bills. They offered me the policy limit, but I’m not happy. I have had two surgeries and incurred almost $60,000 in medical bills. What can I do? A: First, do not settle with the other driver’s insurance company until we get more information. The other driver is carrying a 20/40 policy, meaning they have $20,000 per person / $40,000 per accident (no matter how many people were injured) to cover your personal injuries and medical bills above the $8,000 in Personal Injury Protection (PIP) available through your car insurance.  $20,000 is not going to cover the damage that this person has caused. However, you may have additional coverage under your own car insurance called “underinsured” motorist coverage. Let’s say you carry a 100/300 optional bodily injury provision on your car insurance policy. You then would have an additional $80,000 of coverage available to you above the other person’s $20,000 policy limit ($100,000 – $20,000 from the other car = $80,000 underinsured coverage). Additionally, you may have Medical Payments coverage under your car insurance to cover your medical bills. These are benefits that you pay for through your premiums in the event of this type of accident, and recovery under these provisions will not increase your rates because the accident is not your fault. I have advised you not to settle with the other car’s insurance company, even though they are offering you the most money they can, because you must first get permission from your car insurance company to settle with them if you are pursuing “underinsured” benefits. If you do not get this required authorization in writing before settling, you are precluded from collecting under the underinsured provision of your policy. As always, an experienced attorney should be consulted to navigate these issues so you do not lose benefits.

Personal Injury Protection (PIP)

Q: I was in a car accident in which I was injured. I thought that in Massachusetts insurance companies are required to offer Personal Injury Protection (PIP) coverage up to $8,000 for lost wages, medical bills and out-of-pocket expenses, but my insurance company is saying that they aren’t paying because I have a deductable. Is this legal? A: You are correct that in Massachusetts automobile insurance companies must offer Personal Injury Protection (PIP) on your insurance policy, but you as the insured can opt out of that coverage, often without even realizing it. Unfortunately automobile insurance companies are beginning to entice customers with lower rates, but at the expense of valuable benefits that they write out of the policy. One way they do this is to give you a deductable on the PIP coverage, and you may not even be aware of it unless you review the policy in detail. This means that you will be personally responsible for the medical bills from your accident if you have a full $8,000.00 deductable, even if you were not at fault. Ideally, either your private health insurance must cover the payments, or you will need to pay the outstanding medical bills out of any bodily injury settlement you receive. Always be sure to review the terms of your insurance policy. If the rate seems too good to be true, it probably is!

Social Security Disability (SSDI) benefits

Q: I recently tried to apply for Social Security Disability (SSDI) benefits.  My local Social Security office told me that I am not insured for SSDI benefits and denied my application, but I worked all of my life and paid taxes until 7 years ago when I suffered a head injury on a construction site.  I don’t understand why I wouldn’t be eligible if I paid into Social Security for all those years. Is there something I can do? A: Yes.  Social Security Disability (SSDI) works like any other type of insurance you can buy. As long as you have paid enough into the system through taxes from working, you are “insured” for SSDI benefits if you become unable to work due to a disability. However, just like if you stopped paying premiums for health insurance, that eligibility will run out eventually if you stop paying into the system. The general rule is that your eligibility or “insured status” runs out after five years once you stop paying Social Security taxes. What often happens in cases like yours is that the worker at your local Social Security office looks you up in the computer and sees that you are not currently insured for benefits and sends you on your way without asking the important follow up questions. It is more important for them to ask when you became disabled for the following reasons. In your situation, I can assume that you went out of work in 2006, and that you were last insured for benefits at some point in 2011 (5 years later), leaving you currently uninsured for SSDI. However, you are still eligible for SSDI benefits if you can prove that you became disabled while you were still insured for benefits. So, if we can prove that you were totally disabled before your insured status ran out in 2011, then you absolutely have a claim for SSDI. This shouldn’t be an issue since a traumatic injury put you out of work in 2006. We would gather all of the medical evidence from that accident to support your claim.  It is because of these obscure legal issues and misinformation given by Social Security that it is always important to consult an attorney in the filing of these claims.

Pedestrian Intentionally Struck by a Car in Massachusetts

Q: I was a pedestrian intentionally struck by a car in Massachusetts.  Can I still collect money for injuries sustained in the automobile accident from the driver’s insurance company if the collision was intentional? A: Yes. According to Massachusetts law, you will at least be covered up to the compulsory auto insurance limit of 20/40. Wheeler v. O’Connell, 297 Mass. 549 (1937); Cannon v. Commerce Insurance Company, 18 Mass. App. Ct. 984 (1984).  If your injuries are severe enough to be worth more than the $20k compulsory limit, and additional coverage is available under the optional bodily injury portion of the insurance policy, you may also be able to collect additional money under specific circumstances.  Insurance policies have an “intenional acts” exclusion beyond the 20/40 compulsory limits, but the Massachusetts Supereme Judicial Court has consistently held that that exclusion only applies where the insured specifically intends to cause the resulting or is substantially certain that the resulting harm will occur. Quincy Mutual Fire Ins. Co. v. Abernathy, 393 Mass. 81 (1984). “The focus of these cases is whether the insured intended the injury, not whether the insured intended the act.” Hanover Insurance Co. v. Talhouni, 413 Mass. 781, 784 (1992).  It is the insurance company’s burden to prove that the injuries you sustained were what the driver intended to cause.  This is very difficult for them to prove as you can imagine, because once the accident and injuries occur, people often try to minimize their role in the criminal act. “I only meant to scare him” or “I didn’t mean for him to get that hurt” are often the driver’s statements taken by the police. These statements can then be used to pursue additional money towards your injuries under the policy.

Collecting Social Security Disability and Unemployment Benefits at the Same Time

Q: Can I collect Social Security disability and unemployment benefits at the same time? A: If you are collecting Social Security benefits, either SSI or SSDI, then you should not be collecting state unemployment benefits at the same time. The reason is that you are swearing under oath to contradictory levels of impairment on the applications.  If you are collecting SSI/SSDI then you are considered “totally disabled from substantial gainful employment” by the federal government. If you apply for unemployment benefits you are swearing that you are “ready, willing and able to work.” Collecting both benefits may get you into a situation where either Social Security or the state would be seeking an overpayment, or for you to pay back the money received during the months you collected both. Either way, you do not want to get stuck with a large bill you cannot pay back. However, many of my clients do collect unemployment while their SSI/SSDI applications are pending. This isn’t an ideal situation for the reasons described above, and this has become more of a point of contention with Social Security judges recently, but as long as you are not actually receiving both types of monetary benefits during the application process the receipt of unemployment benefits can be adequately explained so as not to cause an issue.  If you are in the process of applying for SSI/SSDI and are collecting unemployment benefits, it is always best to consult an attorney to avoid an issue.

Permissive Use

Q: My husband and I co-signed for a car loan, but I am the only person listed on the registration as an owner. We separated a few months ago. Last week he took my car without asking and was responsible for causing an accident in which someone was injured. Am I going to be held personally responsible as the owner of the vehicle? A: As your husband is not registered as an owner of the vehicle with the state registry or listed on the title to the car, he is not technically an owner of the vehicle even though he has financial responsibility for payments on the car if you default on the loan. Your personal liability (or liability for a surcharge on your insurance premium) may be avoided in some cases where a driver of a car did not have permission to take the vehicle from the owner. In general, as a legal concept “permissive use” is assumed when someone operates a vehicle not owned by them, but it is a rebuttable presumption by the owner of the vehicle. This is fact specific. Some relevant questions you may be asked to answer include: Does he still have his own set of keys to the vehicle? If not, how did he gain access to the keys? When was the last time before the accident that he drove the vehicle? You should also consider possible verified pieces of evidence documenting that he does not have permission to use your vehicle such as separation agreements. These are all questions I would consider before advising you of your potential liability in this matter.