By: Roger D. Horgan
Our firm has a varied, injury based practice. We handle workers compensation claims, automobile accidents, trip and fall accidents, social security claims, veteran’s claims, and other injury related matters, often all for one client, for one injury. An individual is struck and permanently disabled by an automobile on the job may well have several claims to bring: a Worker’s Compensation claim, a claim against the negligent driver, a claim against his own automobile insurance Company, a claim against a disability plan, and, finally, a claim for Social Security disability benefits. Our experience and expertise across these various types of cases can be very important when a particular accident leads to two or more claims.
Proceeding with any one of these claims without accounting for its impact upon other potential claims can lead to unexpected, and potentially disastrous, results. One potential disaster would be failing to meet the prerequisites for bringing an underinsured motorist claim, also known as UIM, against one’s own insurance company. A UIM claim arises when the defendant driver’s automobile insurance policy limits are not adequate to meet the value of the claim against him. If the victim has purchased UIM coverage it would step in where the defendant’s liability limits leave off. So, if the defendant has the state minimum liability limits of $15,000, and the case is worth $30,000 a victim who has purchased UIM coverage will have a claim for the difference. However, if the victim has taken the $15,000 offered by the defendants insurance company without notifying and obtaining approval from his own insurance carrier, he will have lost his right to bring the claim for UIM benefits. That is because his insurance company has the right to pursue a claim against the driver for anything it is required to pay its policyholder. This is commonly known as a waiver of subrogation. While insurance companies very rarely refuse to waive subrogation, they routinely rely upon the failure to obtain waiver of subrogation before the settlement with the defendant driver to defeat claims for UIM benefits.
As another example of one case affecting another was seen in the recent case of McConnell v. DelPrincipe from Lawrence County. The victim in that case was hit by a car during the course of his work day. Because it was a work related accident his first step was to bring a Worker’s Compensation claim. In that case, the Worker’s Compensation Judge determined that the victim was not disabled, did not sustain a loss of earnings and that he had fully recovered from his cervical strain/sprain caused by the accident. The victim did not file an appeal from the Worker’s Compensation judge’s decision.
Thereafter, he brought a lawsuit against the driver claiming that he had suffered injuries including a herniated disc in his cervical spine, headaches, cervical sprain/strain, aggravation of degenerative disc disease, and other injuries that limited his work activities. However, because the issue of his injuries had been previously litigated in the Worker’s Compensation claim he was prohibited under the doctrine of collateral estoppel from claiming anything more than a cervical sprain/strain in the lawsuit against the driver. The failure to coordinate the handling of these cases, and in particular the failure to file an appeal from the Worker’s Compensation decision, made the claim against the defendant driver nearly worthless.
At Abes Baumann, we are vigilant and experienced in coordinating the various claims that may arise from one accident so as to maximize recovery and prevent unexpected and negative results.