Episode 12 – How Motorcycle Accident Lawsuits Work
“Ask The Hammer” – Exploring the Legal Matters That Matter Most
Welcome to the podcast radio show with Motorcycle Accident Attorney Darryl Isaacs, “The Hammer” and featuring experienced Isaacs & Isaacs personal injury lawyers. Do you have a legal question for The Hammer? Send your questions via Facebook or Twitter using #askthehammer or use the contact form on this page. You can also give the offices of Isaacs & Isaacs a call at 800-333-9999. We’d love to use your questions on the show!
Questions Answered in this Episode:
- Two Things Needed in Every Motorcycle Accident Case
- At the Scene of The Accident
- How Compensation and “Damages” work
- What Happens During a Free Case Review?
- Understanding Wrongful Death Lawsuits
- How to Prove Negligence in Motorcycle Accidents
- Insurance Coverage Recommendations
- Single Rider Motorcycle Accidents
- The Deadline / Statute of Limitations to File a Claim
- Helmet Laws and How They Can Affect Lawsuits
- Ride a scooter? The 2021 Comprehensive Guide to Electric Scooter Laws from Unagi.
Motorcycle Accident Lawyer Page
You can also listen to this episode via Spotify or SoundCloud.
Meet The Motorcycle Accident Attorneys in this Episode
- Darryl Isaacs – “The Hammer”
- Stephanie Rivas
- Rick Bension
- John Jones
Be sure to visit our Motorcycle Accident Lawyer page for more essential details on Motorcycle Lawsuits and to begin your free case evaluation.
Episode 12 Transcription
[music]
Host:
Welcome to Ask The Hammer, the podcast exploring the legal matters that matter most. I’m your host, Jeremy Kocal and as always, we are here with attorney Darryl Isaacs — The Hammer — ready to take on the most popular questions about law. Today’s episode: Motorcycle Accident Lawsuits. You’ll hear from The Hammer and three of our personal injury attorneys, all bikers, who will share their essential perspectives on motorcycle cases.
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The Hammer:
There’s nothing like the freedom of the open road and the bond bikers share here in Kentucky. But Motorcycle wrecks can result in very serious injuries like a TBI and broken neck.
Rick Bension:
At Isaacs & Isaacs, we are the attorneys for bikers. We know bikers because many of us are bikers.
John Jones:
So we take motorcycle wrecks personally.
Host:
Let’s check-in now with the hammer and motorcycle accident cases at Isaacs & Isaacs.
The Hammer:
We want to be there for the victim and make sure everything happens for them. I mean, [00:01:00] we want to make sure their bills get taken care of, they get their lost wages. You know, we’ll handle everything for them. They’ll have to go do the treatment and get better. And we just want them to focus on the recovery.
Host:
In order to open a motorcycle accident injury lawsuit. You’ve often said it’s critical for two main things to exist: liability and damages. Can you quickly explain those to us?
The Hammer:
The reason liability and damages are important — It’s like a two-step process. First there’s got to be liability, meaning someone has got to be negligent or responsible to the injured party. And then once you meet that requirement, then you can hold them liable for the damages. And so, you know, then you look at the damages, how are they damaged? You know, do they have any impairments? Are they going to be able to go back to work? Are they going to need future medical care, future surgeries? Damages can be so many areas. [00:02:00] You know, how much pain and suffering are they going through? How much pain and suffering did they already go through? So it’s just every case, while it’s unique, it all has the same two: Liability – someone’s at fault, and Damages – What are your damages? How can we make you what they call “whole again,” if possible? How can we compensate you for your loss?
Host:
What specific challenges exist in motorcycle accident cases?
The Hammer:
You know, in motorcycle accidents, you need to get an expert that might be able to, like, reconstruct the scene where the accident happened. Sometimes people are, you know, written up early that says they’re at fault. Then we’ll go and get an expert and come and find that they weren’t at fault. There’s certain things that the other driver should have done with one of their duties. So, all our motorcycle attorneys that ride, obviously, they’re very experienced and they understand all of the mechanics of both the bike, the accident, precautionary measures.
Host:
That’s attorney [00:03:00] Darryl Isaacs — The Hammer — leading us right into our conversation with three of those attorneys, all with experience riding motorcycles. We’ll begin with attorney Stephanie Rivas.
Stephanie Rivas:
I am an attorney at Isaacs & Isaacs and handle personal injury claims, auto, big truck, motorcycle, wrongful death.
Rick Bension:
Hi, my name’s Rick Benson. I’ve been working for Darryl for about 25 years now, and we concentrate our practice in injury claims, which include anything from motorcycle claims, car accidents, big truck accidents and so forth.
John Jones:
Hi, my name is John Jones, I’m an attorney here at Isaacs & Isaacs. I’ve been practicing for about seven years now. My primary focus of the practice is in Indiana and Kentucky, handling personal injury claims, anything ranging from car accidents, motorcycle accidents, slip and falls, dog bites or big truck wrecks.
Host:
Something we regularly try to cover are the most important [00:04:00] steps after an accident to protect yourself physically and legally. And one of those steps is to remain at the scene of the accident until authorities arrive. Can you tell us a little bit more about that?
Stephanie Rivas:
If you’re physically able, obviously stay there, see if there are any witnesses who might have seen what happened that you can speak with, get names, phone numbers — because they’re going to be important to helping figure out the actual cause of the accident. And specifically, hopefully the motorcycle driver wasn’t the cause of the accident. But you’ll need that later. And then obviously take pictures of the damage, the scene, anything that’s going to show, you know, the severity of the impact itself. But again, I preface that with also saying, if you’re severely injured, seek medical attention first and foremost, get the help you need there and then work on all this other stuff.
Host:
And what else happens from your team on the scene of an accident?
Rick Bension:
It’s very important, in order to prove fault on a claim, different jurisdictions have different ideas on fault. [00:05:00] In Kentucky, we have a comparative fault statute, which they can assign fault to anyone in any amount and you can still recover. JJ can talk about Indiana, which is a little bit different. But we’re going to want to have typically an accident reconstructionist go out to the scene and reconstruct the accident. A lot of little things can pop up. Witnesses typically will say the motorcycle is going fast and they’re not. You know, people just perceive them as going faster. They’re smaller and they look like they’re moving faster, and we have to combat that a lot. A lot of times too, depending on the motorcycle, you can’t download information about the speed of the motorcycle, the braking or the distance like you can on a car. So we want to get a reconstructionist out there that can tell us, you know, within a reasonable probability, how fast the bike was going, you know, what parameters they’re utilizing to get speed. And also, if they were conspicuous, if [00:06:00] they would be able to see. You know, the defendant driver should have seen them. So we get a reconstructionist typically on every single motorcycle claim just to make sure that,you know, we can prove exactly what would need to be proved, irrespective of how the recollection of witnesses and the defendant might be in those accidents.
John Jones:
Indiana does have a modified comparative negligence system. Essentially, what that means, is that each different party’s contribution to an accident will factor into the amount of damages that that person can recover. So it’s kind of to break it down — If you are 51 percent or more at fault for an accident, under Indiana law, you cannot recover anything for any of your damages. So it’s very important, you know, that we secure the evidence as soon as possible so we can get to work as far as trying to figure out who is at fault and make sure that our client does not pass that threshold to where they can’t bring a claim,
Host:
Another step after an accident [00:07:00] that we’ve talked about before is Not Making a Statement at the scene of the accident. John, can you tell us a little bit more about that?
John Jones:
I mean, certainly what you want to give your statement to the police officer at the scene. Typically, the police report is not admissible evidence in a court of law anyway. If you’re able to make the statement to the police, they’re going to request that you make a statement either way. Whether you can make a statement at the scene or they have to track you down at the hospital, they eventually will do so in order to fill out their report and complete that. Certainly do not talk to any insurance companies without contacting an attorney first. And the reason being is you never know what you’re going to say that could affect your claim in a negative way without you even knowing it. And if it’s already on a recording, we can’t take it back. So we’d rather, if the insurance company is pressing for a recorded statement in order to figure out who’s at fault for an accident, we certainly want to be on the phone [00:08:00] with the client, be able to prepare the client for the kinds of questions that are going to be posed to them and kind of guide them through the process so that they don’t unnecessarily hinder their own ability to collect on any form of judgment.
Rick Bension:
The insurance company’s duty is to mitigate their damages, which is reduce their damages. And when they ask you for a statement or they might ask you for an authorization or things like that, they’re not entitled to them. They won’t tell you they’re not entitled to them. And they’ll say, you know, we need this information. We need this, you know, these authorizations to gather medical records. But that really doesn’t help you, it helps them build a case against you. So you’ve got to be very careful with those types of requests.
Host:
In motorcycle accident lawsuits, your team of attorneys is demanding payments from those that are responsible for the injuries. This is also known as damages. What different categories are these payments, are these damages, covering for these crash victims?
Stephanie Rivas:
Right. [00:09:00] I mean, you’ve got your medical bills, obviously, for the treatment that you’ve sought. You’ve got lost wages potentially, I suppose, Kentucky, Indiana, if you were unable to work, obviously, due to your injuries and you do have a doctor stating that is the cause, that you’re unable to work. And then you also have your pain and suffering as part of your overall damages. How severe were the injuries themselves? And how much pain and suffering have you inflicted from the date of the accident until you’ve been released? Or is it something that you’re going to have to deal with for the rest of your life? Certainly are all components you’d want to take a look at and have an attorney help you evaluate.
Rick Bension:
There’s also, depending on the severity of the accident, you know, unfortunately, most of the time when we get a motorcycle claim in, they’re severely hurt or they’re dead. It’s very rare that we have a claim where it’s, you know, a bump and bruise on a motorcycle. You just don’t have any protection. So, you [00:10:00] know, depending on the size of the claim, you know, your family can make a claim for their loss of consortium and affection and wage loss. Also, depending on the injuries that you have, you can make a claim for what’s called the Life Care Plan. If you’re going to need things in the future with respect to help with medical bills or economic loss or just medical care for the rest of your life. So depending on the severity of those things, the damages can fluctuate. And, you know, we make sure we take a look at all the aspects of a particular claim and bring forth all the damage claims and elements we can for each claim to maximize those.
Host:
When someone gets injured in a motorcycle crash and calls the law firm, the first thing that normally happens is a free case review. Can you explain a little bit about what happens during that free case evaluation?
John Jones:
A few things we obviously need to know right off the bat are the severity of the injuries, the date [00:11:00] of the accident. Most of the time, whenever we get one of these calls in, it’s not actually the client that’s calling. It’s going to be their family. And depending on the severity of that accident, we’re going to need to know different types of information, depending on the case type. If it’s someone who is still living, you know, we need to know where they’re at, what injuries there are, where the wreck happened, so that we can try to get as much information as possible as soon as possible in order to preserve that evidence. If someone is deceased, there are certain things that we would need to know to go through the probate process to initially get things set up for that deceased person so that we can move forward in a timely fashion. Typically, that’s basic questions like, you know, family members and contact information for family members that we can put on notice in order to move the case along through the probate process as quickly as possible. Because a lot of times in a death [00:12:00] case, we can’t do a whole lot until the probate paperwork is initialized and signed off by the judge. Once that happens, we are able to move forward at a pretty fast pace to obtain the information that we need. But we do need that type of information in that situation.
Host:
We’re obviously dealing with tragedy for a lot of these motorcycle accidents. Rick, can you explain the basics of wrongful death cases for motorcycle accidents?
Rick Bension:
On an injury claim or on a wrongful death claim, you can file suit on either one of those claims. On an injury claim, we bring the suit in the name of the person who was injured. On a wrongful death claim, we have to have an administrator appointed by a court and then that administrator has the legal capacity to bring the claim forward. But the suits are similar. The damages of those suits may differ with respect to a wrongful death claim and an [00:13:00] injury claim. For instance, in a wrongful death claim, if you have minor children, they can make a claim. If you are married, they can also make a claim. You might have an economic loss claim that you can make. There may be circumstances in the accident that lead to something called punitive damages, you know, with reckless conduct on behalf of the defendant. So there’s a lot of different elements that come into it. But a lawsuit under both of them is filed similarly. We just look at the individual cases to see what we can claim under those particular injuries and set of circumstances.
John Jones:
I just will jump in real quick and say that wrongful death cases between Indiana and Kentucky vary differently between the states, because each state obviously has its own set of laws. In Indiana, just to give an example, if you’re a single individual over the age of 18 and you don’t have any minor children and you’re not married, if [00:14:00] it’s a wrongful death claim, the state of Indiana puts a maximum cap on the damages for that. So certain injuries are going to have a maximum cap. And then Indiana is kind of funky as well in that if someone has lived for a certain period of time after an accident and they suffer for a week or two weeks and then they pass away as a result of those injuries from that accident, you can’t bring a claim for that pain and suffering in Indiana. Whereas in Kentucky, you can still make a claim for that pain and suffering. But Indiana kind of wipes that away on the date of death.
Host:
And which family members or relatives can bring a wrongful death motorcycle accident lawsuit on behalf of the loved one that they’ve lost?
Rick Bension:
There’s individuals who are called Takers. Those are individuals who can be compensated for the loss of a loved one. They typically have to be over 18. [00:15:00] They typically cannot have committed a felony. We would typically want to deal with a family member, you know a father, mother, sister, brother, cousin. If there’s nothing like that, then you can look for the court to appoint a guardian sometimes in order to open the probate. But typically, yes, it’ll be family members calling us and, you know, one or two or more can qualify. You can have joint estates open so they can make, you know, critical decisions on how they want to move forward. We can bring those to their attention. They can decide what’s best for the family under the circumstances.
Host:
The NHTSA’s motorcycle accident study noted that one-third of accidents were the result of other motorists turning into the path of the motorcycle. The Hammer often mentions how common negligence is as a cause of accidents and injuries. So how is negligence proven [00:16:00] in a motorcycle accident case?
Stephanie Rivas:
Again, like Rick had mentioned earlier, on a lot of these cases we do hire accident reconstructionists, and they help us determine a lot of these issues that most, I hate to say, investigating officers don’t pick up on because they are overworked and they aren’t trained or specialized in accident reconstruction, the field itself. And so a lot of things are missed. And that’s why we do have to hire an expert to help us gather the evidence and help us to determine who was really traveling at what speed… Do we have a good probability of what that was? And what are we basing that on? And, you know, if the other party did turn in front of the motorcycle, I mean, did they see the motorcycle? Was there anything on the motorcycle operator himself that caused them to not be seen? Or were they driving fast themselves? Did they just take any evasive action to avoid the accident? But again, it really helps us when we do hire accident reconstructions. It helps [00:17:00] us sort through all of that stuff and helps us to point out who made what error.
John Jones:
Another thing that we can do, aside from hiring reconstructionists right off the bat — I know whenever I get a case, I typically will pull up, if it’s an intersection, I’m looking right away to make sure, are there traffic lights? Are they working? Are there cameras at the intersection? Were there any witnesses listed on the police report? So those are all other ways that we can investigate and send out feelers to local businesses. If there was a gas station on the corner that could have had a camera pointing at the intersection and happened to catch the accident, we send out letters to pretty much everyone that we can in order to try to preserve any evidence of who is at fault so that we can get the story straight. Even if our client is partially at fault, our job is to ultimately investigate that, make sure that we collect every bit of evidence that we can while still available. A lot of these traffic lights and things like that will reset [00:18:00] every 30 days or so, or they will not store their data for very long. So that window is very short for us to get that information. And that’s another reason why it’s important for people to contact an attorney soon after an accident so that we’re able to get that information because otherwise it might come down to a “he said she said” situation.
Rick Bension:
Those are great points. The only thing that I would add to that is in Kentucky, they do a statistical analysis of individuals who represent themselves and individuals who hire an attorney. And typically in our state, an individual who hires an attorney in an accident claim ends up with three times more than they would had they done it by themselves. So that’s an important consideration too, you know where typically, since we know what to look for, how to handle them, we’re going to do better than you would by yourself on the claim.
Host:
Law firms deal nonstop with insurance companies. What [00:19:00] are the insurance policy coverages you might recommend for motorcyclists so they can best protect themselves financially, legally, should an accident with injuries occur?
John Jones:
I certainly always tell my clients to buy as much insurance as you can afford. And that’s just to protect yourself and anyone that, especially if you’re on a motorcycle, that you might have riding as a passenger. So my recommendation would be, you know, as much underinsured motorist coverage as you can possibly afford. And that is the coverage that would apply if someone is at fault and hits you while you’re on your motorcycle. And let’s say that Indiana and Kentucky both have a minimum liability policy of $25,000. If you’re severely injured, that twenty-five thousand does not last very long and doesn’t go very far towards paying, towards your damages. So if you have your own underinsured motorist coverage on your policy — [00:20:00] let’s say you have $250,000 in coverage, that’s a big pool of money that you can dip into to help protect yourself. But because sometimes, unfortunately, a lot of these people that are carrying minimum limits policies just don’t have the assets to be able to go after in order to make our clients fully compensated for their injuries. And then to kind of piggyback off that, if you’re riding in Kentucky, I would certainly suggest getting the optional PIP coverage available. Because in Kentucky, whereas PIP is automatically written into an auto policy, it is not written into a motorcycle policy. That is an optional coverage. And what that does is it pays for your medical expenses up to the dollar amount of whatever you choose as your limit. Most of the time that’s ten thousand for most people. But that will pay up to that $10,000 in your medical bills in the state of Kentucky. Indiana has kind of the same thing, [00:21:00] but it’s called Medical Payments Coverage. And you can choose whatever amount you want. You can choose up to one hundred thousand. It could be five thousand. But my recommendation, again, is just always purchase as much as you can afford.
Stephanie Rivas:
Like John had stressed, it is important. Actually I tell people all the time, buy as much coverage as you can, because at the end of the day, you’re the one that’s got to look out for yourself. The person who hit you isn’t. And more than likely, you know, if you do get involved in an accident that is severe, and they have minimum limits, I mean, you’re still left in the hole. So you certainly want to carry as much in that situation where the at-fault party has no coverage at all, as much uninsured coverage as you possibly can afford. I would stress that with underinsured as well. Because at the end of the day, you’re the one that has to look out for yourself.
Rick Bension:
The problem with insurance coverages, too, is a lot of these insurance carriers do not write motorcycle policies. Or they limit the motorcycle policy, so it can get difficult. My carrier, I’ve got a different career from my car [00:22:00] policies and then they won’t write motorcycles. I’ve got a different carrier for my motorcycle policy, and they limit the amount of coverage you can have on those motorcycles because they as we know, you know, when you have an accident, it’s typically severe. So they want to limit their exposures.
Host:
A large number of motorcycle injuries are single rider accidents, meaning it was only the motorcycle involved and no other vehicles. What is the legal course of action when a motorcyclist crashes and gets injured or dies but there is no other driver involved?
Stephanie Rivas:
I mean, that’s a tough one. If it’s just the motorcyclists themselves that was involved, it sounds like the motorcyclist was at fault. You know, as I’m saying that I’m thinking, well, is there some product liability issue? Mechanical defects with the bike? Tire issues? Again, it goes back to the coverage that they had on the bike. Was the motorcyclist’s… have sufficient coverage? And if not, do they have health insurance to help at least pay for the bills?
Rick Bension:
In order to make a claim [00:23:00] for any type of accident, including a motorcycle accident, there has to be fault assigned to someone or something else. So Stephanie is exactly right. You know we can look for things like road design issues or if there’s something that caused the accident, a lighting issue where the lights weren’t working properly or, you know, like she said, A products liability claim. But those are far and few between. But if you can prove those, you can still bring a claim on those. But you’ve got to find some problem and negligence on a third party in order to make a claim. Otherwise, it just covers your motorcycle. So it would just cover your medical bills. And like Stephanie said, depending on the severity, you’d have to jump to your health insurance. And there’s nothing legally we could do with a situation where you’re actually at fault in the accident.
Host:
Something that comes up a lot in these cases is the statute of limitations or the deadline to file a motorcycle accident lawsuit. What is that deadline? What is the statute of [00:24:00] limitations for a motorcycle accident?
John Jones:
For Indiana, it’s two years from the date of the accident, basically, no matter what. Indiana is kind of a flat two-year statute of limitations. For Kentucky, it works a little bit differently — The injured party, if you’re the driver or the passenger of a motorcycle, you would potentially have two years to make a claim against the at-fault driver. However, in Kentucky, if you have a family member, whether that be a child, a spouse, someone who’s trying to make that loss of consortium claim, that claim in Kentucky is limited to one year. So in Kentucky the timeline for filing those larger claims for loss of companionship and things like that, it’s a little tighter since it is one year. So we want to make sure that we get on that and we file that suit within a timely period so that we don’t miss that statute of limitations.
Host:
And what should motorcyclists know about helmet [00:25:00] laws and how they might affect these lawsuits?
Rick Bension:
Well, in the state of Kentucky, it’s not mandatory to have a helmet, but you have to go through the Department of Motor Vehicles and get a certain decal placed for that. So they don’t require it. Some people, as we discussed, like wearing helmets, some don’t. Some think it blocks their vision, it dappers their hearing and it’s an inconvenience. They’re hot. But statistics show that, you know, you are going to have a much better chance — it’s like wearing a seatbelt in a car — of surviving an impact to your head if you’ve got a helmet on. I read something the other day that said thirty-seven percent of the time, if you’re in an accident on a motorcycle, your face hits the pavement or another object. So some people like wearing full-face helmets, you know it will protect you from that. [00:26:00] Some people like wearing just the crop helmet, that’s not going to protect you from that. But all in all, in Kentucky, it’s the driver’s choice. But it’s certainly more — there’s much more safety involved in wearing something. They will also — the Defendant’s attorneys and what not — will bring that up, too. If you have a head injury, or you have facial fracture or something like that and you weren’t wearing your helmet and you don’t have that sticker, then they can diminish the value of your claim, arguing that had you had it on, it wouldn’t have been as severe, it wouldn’t have happened. So from our perspective, at least, mine, always wear your helmet and protective gear.
John Jones:
Indiana is a little bit looser. For Indiana, anybody that is over the age of 18 does not have to wear a helmet or any protective gear. If you are under [00:27:00] the age of 18, you do have to wear a helmet and eye protection. Again, that only qualifies if you’re under 18. So there’s a very small window of your motorcycle riding life that you are required to wear a helmet in Indiana.
Host:
If you have a legal question you’d like to Ask The Hammer, reach out to us on Twitter, on Facebook or the website, wewin.com. We’d love to tackle your question on our next show.
And here’s our legal disclaimer
This podcast should not be used in any legal capacity whatsoever. If you have specific legal questions, contact an attorney to discuss specific legal matters about your case. The attorneys of Isaacs & Isaacs operate nationally with their primary office in Louisville, Kentucky. Listeners should note that legal services may be performed by others.
Join us next time with Darryl Isaacs on Ask The Hammer. Thanks for listening.
Motorcycle Accident Lawyer Page
Get Your Question Answered By Darryl Isaacs
Got a legal question for The Hammer? Reach out using the contact form on this page or give the team at Isaacs & Isaacs a call at 800-333-9999. Be sure to check out the The Hammer’s blog and more podcast episodes from attorney Darryl Isaacs!
