Personal Injury Primer

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned about a car crash he was in. He said the crash wasn’t his fault. He said all he did was send a letter to the other driver’s insurance company putting them on notice that he intended to hire an attorney. The other driver’s insurance company sent him a copy of a letter sent to its insured driver notifying the driver of a coverage dispute. He wanted to know his legal options.

We asked the caller to bring in a copy of the letter so that we could analyze what was going on.

The letter, addressed to the at-fault driver who hit the caller, had the words – reservation of rights – in capital letters at the top.

If you’ve never heard the term reservation of rights here’s what it means.

The insurance company for the at-fault driver told the at-fault driver, that it believes it has a valid reason to deny coverage, but while it further investigates the matter, it will undertake to defend the at-fault driver if a suit is filed.

Oftentimes insurance companies send out these reservation of rights letters.

Once an insurance carrier serves a reservation of rights letter and then hires an attorney to defend their insured on a claim, there is a potential for a determination that the coverage is invalid or void and the party who receives such a letter should protect themselves by hiring counsel to make sure they are being properly defended.

As for the caller, it will be important for any attorney representing the caller to investigate the basis for the reservation of rights letter.

Perhaps there are legitimate grounds to deny coverage.

Perhaps the driver of the vehicle was not a named insured on the policy.

Perhaps the policy excludes coverage if a vehicle is used in the commission of a crime and the car at the time of the crash was fleeing the police.

If there is no insurance coverage, the next analysis would be to determine if the at-fault driver has assets and is collectible.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

In our last two episodes, we discussed insurance policy ambiguities and an insurance carrier’s duty to deal fairly and in good faith with an insured.

These two episodes presumed that a policy was purchased and that there was a dispute between the insured and the carrier.

In this episode, we discuss the sale of insurance.

The insurance business is confusing because the law recognizes two categories of agents.

One category is called a broker.

The other category is simply referred to as an agent.

A broker is a person who may represent several insurance companies at the same time.

Typically a broker is under the law considered to be an agent for the person seeking out insurance.

So if a broker helps someone seeking insurance fill out an application the broker is typically considered to be doing so on behalf of the one looking to buy coverage.

For the most part, an insurance company will not be held liable for the negligence of a broker. That’s because a broker is most of the time considered to be an agent for the person seeking insurance.

Since a broker who procures insurance for someone is considered an agent of the proposed insured, a broker must exercise reasonable care, skill, and good faith in the purchase to obtain the requested insurance coverage.

Where things really gets confusing is that under the law a person may be both an agent and a broker, and act in different capacities at different times, sometimes representing the applicant for insurance and other times acting for the insurance company.

Set aside for a moment the concept of broker (one who markets for several insurance carriers) and look at what we’ll call a captive agent.

Where an insurance company has a sales agent working solely on its behalf to sell insurance to a prospective insured, the prospective insured needs to be on high alert.

A captive company agent only must refrain from affirmative fraud.

The captive agent can’t lie to you or commit fraud. But they otherwise owe no duty at all to the prospective insured. This is a traditional buyer-beware scenario.

This means that a captive insurance agent has no duty to provide advice to the proposed insured.

Where things get confusing is if there is some intimate long-standing relationship between the captive agent and the prospective insured. This might come into play if the captive agent used to be acting as a broker for multiple insurance companies and then switched to become an exclusive agent for one carrier.

Or, if the captive agent holds himself out to be highly skilled, or they receive a special fee to provide expert advice.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

In our last episode, we discussed the requirement that insurance policies in Indiana containing ambiguities are required to be read such that the ambiguity favors the insured and not the insurance company that drafted the insurance policy.

In this episode, we discuss how, consistent with the same reasoning, an insurance company must deal with its insured in good faith.

As you will recall the caller in the previous episode was concerned because his policy benefit of temporary housing while his house was being repaired would run out before the repairs would be completed. The reason his benefits were going to run out is because the insurance carrier wasted time in evaluating the loss he suffered in the fire.

The duty of good faith and fair dealing on the part of an insurance company to fulfill its contractual obligations under the policy includes things like refraining from:

In the caller’s case, a couple of these obligations of good faith and fair dealing are called into question, most particularly causing an unfounded delay.

In the caller’s case, the insurance company sent out an adjuster the day after the fire but then took three months to evaluate the claim. So is that an unfounded delay? Is that bad faith on the part of the insurance carrier?

Well, one of the elements of proof in bad faith cases is to show a conscious wrongdoing by the insurance company.

If the delay was due to a dishonest purpose and ill will on the part of the insurance company it very well may be bad faith.

However, if the delay was due to unforeseen circumstances, like a pandemic, then the delay may escape rising to the level of bad faith.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned that a provision in his fire insurance policy is being interpreted against him and in favor of the insurance carrier in a way that severely limits his benefits under the policy. He wanted to know if his interpretation would prevail in court if he sued.

The provision he was questioning says that the insurance company is to pay for him to stay in a hotel for up to 120 days while the home is being repaired, but is ambiguous as to whether that time can be extended if the repairs are delayed due to the insurance carrier dragging its feet on evaluating the damage.

In Indiana, insurance contracts are treated the same as any other type of contract. However, if there is ambiguity in a particular provision of the policy, the ambiguity is usually interpreted against the insurance carrier that drafted the policy.

What makes a provision ambiguous you might ask?

An insurance contract provision is ambiguous if after reading it reasonably intelligent people would have honest differences as to the meaning of the language.

When there is a disagreement between an insured and an insurance carrier, where the insurance policy is found to be ambiguous, Indiana courts will normally construe the terms in favor of the insured and against the insurer responsible for drafting the language of the contract.

The reason Indiana courts construe a policy against the insurance carrier where there is ambiguity is to permit the insurance policy to be broadly interpreted to provide benefits to the insured where possible.

However, if the dispute is between an insurance carrier and a third-party beneficiary of the policy, then the courts treat the question of how to interpret ambiguous language in a more neutral view.

How does this work in a practical sense?

Let’s say Tom buys car insurance and is a named insured on the policy. Sally is a passenger who was in the car when a crash occurred. A dispute arises over an ambiguous provision in the policy as to whether coverage extends to someone hurt trying to get into the car.

If Tom sues, the ambiguity is to be construed in Tom’s favor. If Sally sues, the courts treat Sally and the insurance carrier more neutrally.

Additionally, courts generally interpret ambiguous language so has to harmonize the disputed provision with other provisions in the policy that are more clear.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Recently there was a report of two boys in their early teens who were injured while playing in a snowbank in a lot used by the town to store snow.

Reportedly, a town employee unknowingly dumped snow on top of the boys, trapping them for hours.

The families of both boys sued the town for negligence, claiming the town failed to properly secure the area and warn about the dangers.

The families’ attorney focused on a lack of warning signs in the complaint filed in court.

It is too soon to know if the suit will be successful.

Sadly these types of injury incidents occur often.

In the wintertime, children can get trapped in a snow bank just like was described in this news report, or they can fall through ice on a partially frozen pond that does not have “no trespassing” signs posted warning people to stay away.

In summer, we often hear reports of children digging in the sand on a beach and having the sand cave in and trap them.

In these situations, the search for a responsible party often will lead to a focus on a property owner or even a homeowners association.

There was a recent situation where a child fell through the ice and a homeowner’s association was held legally responsible for failing to place warning signs about the body of water in the subdivision and otherwise failing to take steps to keep children from venturing out onto the ice.

In the reported case where the town unintentionally dumped snow on playing children, the family may have a more difficult time proving their case against a governmental subdivision than if the target defendant were a private property owner. Government agencies often benefit from governmental immunity for the harm they might cause.

While it’s impossible to make certain that no one will ever get hurt, taking reasonable steps to fence off areas where children might be attracted to come onto the property is important.

Courts have long held that if you maintain what’s called “an attractive nuisance” that encourages children to come onto the property you may be held legally responsible for the harm that befalls the child coming onto the property.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who was pregnant when she was injured in a car crash. Shortly after the crash, she had a miscarriage.

She wanted to know if the driver who was negligent and caused the crash could be made to pay for the loss of the unborn child she was carrying at the time of the crash.

The short answer is that in Indiana if the unborn child was viable before the crash, the caller might be able to successfully recover for the loss of the child if a medical doctor were able to say that the crash was “more likely than not a contributing cause” of the miscarriage.

To make that judgment call a physician will want to take into account such factors as the age, height, and weight of the woman at the time of the miscarriage. The physician will also want to know if the woman had a pre-crash history of successfully delivering a child, other miscarriages, or other health challenges during pregnancy.

In the caller’s case, she had successfully delivered a child 2 years before the accident. But, 10 months before the crash she had a miscarriage.

The caller saw her Obgyn about two weeks before the crash, and all was well at this time.

Following the crash, she was taken to the hospital by an ambulance where she was noted to have complaints of abdominal pain (mostly where the seatbelt was fastened) as well as head pain, left flank pain, and back pain.

An ultrasound was performed to check the fetus and it confirmed a normal fetal heartbeat, and the woman was discharged. Her blood pressure was very high however during her check at the emergency room. Though, by the time she left the hospital her blood pressure had returned to normal.

Nevertheless, despite the strong impact between the two vehicles involved in the crash and lots of bruising and aches and pains, the hospital saw no reason to keep the woman overnight once her blood pressure normalized.

However, two days following the crash, the woman again went to the hospital, this time with complaints of intense lower pelvic cramping, vaginal bleeding, nausea, and vomiting. Her blood pressure was again quite elevated. An ultrasound showed no fetal heartbeat.

Given the woman’s circumstances and medical history before and after the crash, we advised the woman that her chances of recovering damages for the loss of the child would be good, depending on whether her doctor was willing to say that the crash contributed to causing her miscarriage.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today we discuss the issue of how heavy electric vehicles might lead to higher rates of injury if the drivers of such vehicles hit a guardrail.

Electric vehicles weigh more than gasoline-powered cars. Are highway guardrails designed to withstand the extra force that will be applied against them when struck by heavy EVs?

A recent study by the University of Nebraska raises concerns suggesting that most highway guardrail systems in the USA are not built to withstand an impact with a heavy EV.

Gas-powered vehicles typically weigh as much as 50% less than electric-powered vehicles. The batteries in a typical EV can weigh almost as much as a small gas-powered car. The weight distribution is often lower in an EV as well.

Because of these differences, guardrails in most areas are not designed to withstand an impact and will not be able to stop electric vehicles from pushing through such barriers.

The University ran an electric-powered pickup truck into a test guardrail installed on the University’s testing grounds. The guardrail did not do well in the test. The EV pickup weighed nearly 4 tons.  The metal guardrail did little to slow the EV. Only when it hit a concrete barrier beyond the guardrail, did the EV slow down.

Most guardrail systems are not constructed to handle vehicles weighing greater than 5,000 pounds. So an 8,000-pound EV will tear through a steel guardrail like it is not even present.

Interestingly, in a test reportedly sponsored by the U.S. Army Corps of Engineers, an EV sedan was impacted against a guardrail and it lifted the guardrail posts out of the ground and passed under the guardrail itself.

For now, if you drive a heavy battery-powered vehicle your best bet is to slow down.

A question not yet investigated is how might a lighter gas-powered car fare in a collision with a 4-ton electric-powered vehicle.

We know generally that in impacts between heavy and light vehicles, the light vehicles take the brunt of the damage. The same impact force bending the metal on the lighter vehicle will likely be passed to the occupants of the lighter vehicle and lead to more severe injuries.

On the other hand, perhaps the electric vehicles themselves will offer superior protection to their occupants due to their heavier weight and the lower center of gravity in electric vehicles due to the lower placement of the heavy batteries.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who said he lost control of his pickup truck on a wet road surface and hit a guardrail. He says the guardrail gave way and he went right through it and down an embankment. He says he suffered injuries far greater than he would have had the guardrail been properly designed. He wanted to know if he could successfully sue.

The target defendants in a guardrail defect case will likely be the company that designed and engineered the guardrail, as well as the construction company that built the guardrail system.

A quick investigation suggested that the Department of Transportation, the construction firm, and an independent engineering firm, as part of a road project completed shortly before the crash, might have failed to use reasonable care in designing and constructing the guardrail.

Not surprisingly there are standards recognized across the nation that specify the size and type of guardrail system needed as well as the quality of materials which must be used.

The standards call for a guardrail to withstand specified impact forces, and to be able to redirect vehicles away from the area being guarded by the guardrail system.

While every guardrail is not required to be strong enough to withstand every crash, no matter the size, weight, and speed of the vehicle that may impact the guardrail, if the guardrail is not correctly designed or constructed, and if the failure of the guardrail contributed to causing enhanced injuries, the chance of prevailing in a lawsuit will be enhanced.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who said he was at an airport and got hurt on a moving walkway when his foot got caught. He wanted to know if he could sue the company that maintained the walkway.

In asking a bit more about what happened, the caller revealed there was a missing plate that normally would cover a maintenance access area.

He said his shoe got caught in the access hole.

He used his phone to take a photo and a video clip of the missing plate at the end of the walkway at the time he was injured.

Under the law, he certainly may have a valid claim against the company responsible for the maintenance and repair of the walkway.

A moving walkway that is not in proper repair can pose an unreasonable risk of injury to users.

The improper maintenance of a moving walkway can result in a dangerous condition.

In many states there are statutes or case decisions that require elevator and escalator maintenance businesses, as well as property owners, to exercise reasonable care to keep the equipment in their care in safe condition for the public using the equipment. And the duty to care for and maintain a moving walkway is no different.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned about his son who was hurt at a soccer game at the local high school. The caller said the boy hit his head hard on the asphalt track surrounding the playing field when he was pushed out of bounds. The school had a contract with a local doctor to evaluate students for concussion, but this doctor failed to screen for a concussion, and instead authorized the injured student, to continue to play. After the game, the caller took the boy to a local hospital where he was diagnosed as suffering a serious concussion injury. The caller wanted to discuss whether he and his son could sue the doctor who failed to diagnose the concussion.

In Indiana, the caller and the boy would have the right to pursue a claim against the doctor, as well as a separate right to sue the school.

But, the claim against the doctor would need to be pursued as a medical malpractice claim and would have to be submitted to a medical review panel, even though the doctor was technically an employee of the high school and even though the son was not technically a paying patient of the doctor.

In Indiana an individual who fails to make a diagnosis while on the payroll of a school, as an athletic trainer, is still considered to be providing medical care, and a suit against them would have to comply with the Indiana Malpractice Act.

In the caller’s case, the doctor was hired to serve as an athletic trainer and was specifically hired to conduct tests to screen students for concussions and other brain injuries. Thus, any allegations against the doctor/athletic trainer that focused on the failure to provide medical care in the form of failing to provide a diagnosis would be treated as a malpractice claim.

To sue the doctor/trainer, the caller would need to file a proposed complaint with the Indiana Department of Insurance. Thereafter, a medical review panel would need to evaluate the doctor/trainer’s conduct, before any suit could be filed in court.

Keep in mind any lawsuit against the school would have to comply with the government liability notice requirements which require several types of notice to be submitted within 180 days of the incident, and the suit would then have to be filed within two years of the incident.

The malpractice action against the doctor would have a two-year statute of limitations but unlike the claim against the school, there would not be any requirement to provide pre-suit notice. Still filing such a notice if time permitted doing so, would prevent a defendant from raising the issue.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”