Underinsured Defendant in Auto Accident Cannot Diminish Financial Responsibility Owed “Careful” Plaintiff – Your Auto, Motorcycle and Trucking Accident Indiana Attorney

At fault driver may not benefit from injured driver’s policyCall Charlie Ward at 317-639-9501

On September 20, 2012, The Indiana Court of Appeals held that the party at-fault to an auto accident cannot benefit from Plaintiff’s purchase of uninsured/underinsured coverage and acceptance of underinsured motorist benefit compensation.

When the trial court jury found the Defendant, Alan Steady, 100% at-fault for injuries sustained by Ronald Kern in an auto accident, a judgment in the amount of $98,000 was entered against the Defendant. Plaintiff Kern received policy limits of defendant’s minimal legal coverage of $25,000 by Steady’s insurance company. Kern also received $68,000 in underinsured motorist benefits from his own insurance company, State Farm, as well as $5,000 in medical payment coverage. Steady then asked the Court that the $98,000 judgment against him be deemed fully satisfied and the trial court granted his request.

State Farm then appealed to the higher court for the right to recover from Defendant the amount of $68,000 in funds they paid their client in underinsured motorist benefits and $5,000 in medical payment benefits. Defendant claimed State Farm was not a party to the lawsuit when judgment was entered against him. But the Court of Appeals citing Indiana Code section 27-7-5-6(a) confirmed that State Farm had standing to appeal as follows:

“The insurer shall be subrogated, to the extent of such payment, to the proceeds of any settlement or judgment that may later result from the exercise of any rights of recovery of such person against any person or organization legally responsible for said bodily injury or death, or property damage, for which payment is made by the insurer. Such insurer may enforce such rights in its own name or in the name of the person to whom payment has been made, as in their interest may appear, by proper action in any court of competent jurisdiction.”

On the merits of the case, the appellate court cited once again Indiana Code section 27-7-5-6(a) which provides a right of recovery by the insurer against a third-party tortfeasor and that the insurer “…shall then be subrogated to the proceeds of any settlement or judgment that results.”

The Court concluded that the trial court erred:

“Steady is not entitled to benefit from Kern’s carefulness and assiduousness in obtaining underinsured motorist coverage.”

 The case was reversed and remanded back to the trial court for further proceedings.

Lawyers with Experience Helping their Injured Clients

The law firm of Ward & Ward has over 85 years of combined experience in complex personal injury claims. If you’ve been injured in an auto, motorcycle or trucking accident, call an experienced personal injury attorney. Call Charlie Ward at 317-639-9501 for a free analysis of your claim.

By Charlie Ward

[email protected]

Ward & Ward Law Firm
728 S Meridian St
Indianapolis, IN 46225
317-639-9501

 

Why you Need an Experienced Indiana Motorcycle Injury Accident Lawyer

Attorneys Use Contributory Negligence as Affirmative Defense in Motorcycle Accident ClaimsCall Charlie Ward at 317-639-9501

A person injured in a motorcycle accident that is a direct result of another driver’s negligence, requires legal representation by a knowledgeable and experienced personal injury attorney that understands and can counter the defenses employed by defendant’s counsel. Defendant will likely attempt to portray the cyclist as a “risk-taker” who is in whole or part to blame for his or her own injuries. Why? Because Indiana’s comparative fault law proclaims that a Plaintiff who is more than 50% at fault for his or her own injuries cannot recover for damages.

Contributory negligence in motorcycle accidents claims

Indiana Code 34-51-2-6 states:

“…the claimant is barred from recovery if the claimant’s contributory fault is greater than the fault of all persons whose fault proximately contributed to the claimant’s damages.”

From a defense perspective, proving plaintiff’s contributory negligence would reduce or even eliminate the defendant’s financial exposure in the claim.

In an affirmative defense strategy, defendant’s counsel may attempt to plant the seed of negligence and portray cycling as an inherently risky behavior. Asking the jury to consider that the cyclist failed to mitigate their damages by opting not to wear a helmet is a very common defense. However, an experienced lawyer representing motorcycle claimants will petition the Court early on to disallow any speculation about Plaintiff’s failure to wear protective headgear. In State v. Eaton, 659N.E.2d232 (Ind. Ct. App. 1996) establishes that Indiana motorcyclists have no common law duty to wear a helmet or protective eyewear. Therefore absent any protective head gear or eyewear, defendant may not hold cyclist accountable for failing to do so and a jury may not speculate how the injured party’s damages might have been lessened if a helmet had been worn.

Motorcycle claims are very different from auto accident claims and require help from an experienced lawyer

Motorcycle lawsuits require counsel experienced in litigating cyclist’s claims. Call Charlie Ward today at 317-639-9501 for a free evaluation of your claim.