Personal Injury
Disability Lawyers in Kansas serving clients statewide including Topeka, Kansas City, Olathe, Overland Park Wichita, and Salina
Personal Injury Attorney and Disability Lawyers in Kansas
Injuries from accidents occur in many different settings. Sometimes the injuries arise from an automobile or motorcycle accident, other times they may occur as the result of a dangerous condition on another person's property or perhaps from the use of a product which malfunctions or is improperly designed.
In the worst of circumstances, injuries can result in the wrongful death of a person leaving behind surviving family members to deal with the emotional and financial losses caused by the wrongful death.
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FAQs About Personal Injury Cases
I have been in a car accident, now what?
Answer: Many personal injury cases arise from the operation and use of motor vehicles. Always call a local law enforcement officer to make sure that the proper accident report is made to document the facts of the accident.
I don't like the idea of calling the police on a minor accident, should I?
Answer: Although it may not seem important in instances where the accident seems to be relatively minor in nature, many times injuries from low speed impacts do result in significant permanent personal injury and if the local law enforcement agency has not had an opportunity to investigate and prepare a report regarding the accident, then there is no "official" report of the facts. Additionally, police officers frequently take the names of persons who may have observed the accident as witnesses and later, if the cause of the accident is in dispute, this information can be critical in resolving any disputes as to how the accident occurred. Finally, the law requires you report all accidents involving $1,000.00 or more in property damage.
Right after the accident I didn't think I was injured, but now I am very sore, what should I do?
Answer: Get in to see your doctor immediately and advise that at first you thought you weren't hurt, that you were wrong and need to be checked out. In any type of accident whether it is a car accident, a slip and fall, or injuries resulting from a defective product, a person rarely has the ability to assess their own injuries. Many times injuries received in an accident do not become apparent for several days or weeks.
If someone asks me if I am hurt and I am not sure, what should I say?
Answer: If you are asked how you were doing at the scene of an accident by anyone, it is truthful to simply indicate that you don't know. In time, you will be able to tell if you have injuries from the accident and can seek appropriate medical treatment at that time.
Should I contact my insurance company?
Yes, in most instances you should immediately contact your insurance company. Kansas, like many states, requires automobile liability insurance policies to provide Personal Injury Protection benefits in any auto liability policy issued in the state of Kansas. We will look at PIP benefits later in this booklet.
Should I give a statement to people that call on the phone or come by the house to ask about how I got hurt?
No. It is also better practice to consult with an attorney before giving any statements about how the accident occurred.
What happens if I'm hurt on somebody's property?
Just like with automobiles, property owners carry liability insurance to protect them in the event someone is injured while on their property. These types of accidents are commonly referred to as "slip and fall" cases. Injuries can happen from such things as slippery areas caused by bad weather, open trenching or holes on the property, or inadequate lighting resulting in an area being unsafe because dangerous conditions are hidden in darkness. The owner of the property is required by law to exercise reasonable care for the protection of persons invited upon the property.
Does that mean anytime I am hurt on someone's property they are responsible for my medical bills?
No. However, if it can be shown the owner of property failed to use reasonable care in maintaining the property in a reasonably safe condition you can usually recover your medical expenses, loss of earnings and other damages.
What damages can you recover if you are hurt on someone's property?
An injured person may recover damages for their injuries including medical expenses, loss of earnings from work, pain and suffering and for any permanent disfigurement of disability.
One of our experienced personal injury attorneys can assist you in analyzing the facts of your case, the law that applies to the facts and help you reach an educated decision about whether or not you have a valid claim against the owner of the property. As with car accident claims, it is wise not to give any statements to any insurance adjusters until you have had an opportunity to consult with an attorney of your choice.
What is a "wrongful death" claim?
A wrongful death claim is a claim arising out of the death of a family member caused by the negligence of a third party.
What are the damages in a wrongful death claim?
With the death of a husband, wife, parent or other family member, there are always losses beyond the loss of the person. The loss of earnings from a spouse, the loss of the financial support from a parent or other family member can have devastating financial effects on the surviving members of the family.
Is there a limit to damages for the economic harm that can be recovered?
There is no limit on the amount of money that can be recovered for economic loss caused to the family as long as the available evidence at trial supports the jury's decision.
What other damages may a jury award?
Juries are also permitted to award damages for the emotional losses suffered by the family following the death of a loved one.
I have heard of a "survival action," what is that?
Occasionally, the injured person initially survives the trauma of the accident, living for days, weeks or even months after the accident before dying. The remaining family members also have a right to bring a claim on behalf of the estate of the person to recover the damages the deceased's family member suffered before death.
What damages would this include?
This type of claim is referred to as a "survival" action and provides payment to the estate of the deceased for the lost earnings, medical expenses, pain, suffering and emotional distress that was experienced from the date of the accident to the date of death.
How do I know if I need an attorney?
In truth, you almost always need a lawyer on these matters anymore. The more severe the injury the more certain it is that the advice of an experienced personal injury trial attorney is necessary. Successful personal injury trial lawyers routinely analyze complex fact patterns, assess the financial losses suffered by the injured party following an accident and understand the process of preparing the file to successfully negotiate a settlement or successfully try a case to a jury.
What does it cost to get initial advice from an attorney?
Nothing. We will gladly meet with you and discuss your case at no cost initially.
If I hire an attorney what does that cost?
Personal injury cases are usually taken on a contingent fee, meaning if there is no recovery for you, no fee is owed to us.
What are expenses?
Expenses are things like charges for medical, official, and other records; photocopying costs; postage; long distance telephone charges; legal, medical, and other research charges; travel expenses; charges for physicians' reports; consultation and expert witness fees; messenger and special delivery charges; court costs; service of process fees; witness fees; subpoena expenses; deposition charges; exhibit preparation expenses; and mediator fees.
Who pays expenses while the case is progressing toward settlement or trial?
If we take your case, we will cover these expenses as part of our contract of employment with you on the claim. At the conclusion of the matter you reimburse the firm out of your settlement or jury verdict.
I have heard the term comparative fault, what does it mean?
The concept of comparative fault is that anytime there is an accident, the causes of the accident can be determined and expressed as a percentage of fault. In Kansas, the concept of comparative fault means that when you look at how an accident happened, you determine how much fault the parties to the accident contributed to its occurrence. The combined total fault of the parties should add up to 100%.
Can you give me an example?
Sure, for example, if two cars run into each other head on straddling the centerline on the highway both drivers might claim the other driver is at fault. A jury looking at those facts may determine that the drivers are equally at fault and assign the fault at 50% to each driver, the combined fault of both drivers equaling 100%.
Why is this important?
In Kansas, the assignment of comparative fault becomes important because you can only collect that percentage of fault assessed to someone other than yourself in the occurrence of an accident.
Can you give me an example of how that works?
Certainly, let's say a jury determines you were 20% at fault in an automobile accident and the other driver was 80% at fault. You cannot recover damages from yourself. Since you were 20% at fault, you are only allowed to recover up to 80% of your provable damages.
Are there other comparative issues I should be aware of?
Yes, in Kansas your fault must be less than 50% or you recover nothing. Kansas uses a "modified comparative fault" rule which says that if you are 50% or greater at fault your claim is barred by law. Basically stated if the accident is mostly your fault, you lose.
Who decides the fault of the parties?
A jury or judge is required to consider the facts and determine what percentage of fault the injured party should be assigned, measured against the fault of the person(s) causing the accident.
How is all this important in personal injury cases?
Because the judge or jury decides fault, proper development of the case is important to place as much of the fault in the accident on the other parties. An experienced personal injury attorney can be very valuable in proper case development thereby maximizing the fault placed on other parties and increasing the recovery for the injured person and his or her family.
Does comparative fault apply to all personal injury cases?
Yes, comparative fault principles apply to all accident cases whether they are an auto accident, a slip and fall case, a defective product case or a wrongful death case.
What are "No fault" or Personal Injury Protection benefits?
No Fault or Personal Injury Protection benefits, commonly known as PIP benefits, are insurance benefits which must be included in any policy of automobile insurance issued in the State of Kansas. By law, you are required to carry insurance on any car which is registered in the State of Kansas. PIP coverage provides immediate money to pay medical, lost wages, and other benefits without regard to who caused the accident.
Who is covered by PIP benefits?
Typically, the benefits cover you and your immediate family. This would cover relatives residing in the same household by any degree of blood, marriage, or adoption.
Do I have to be driving my car to receive PIP benefits?
No. You may be able to receive PIP benefits even if you are driving another vehicle. You are also entitled to receive PIP benefits if you are a passenger in your car or someone else's car.
What happens if I am driving a friend's car that is uninsured?
The insurance on your personal automobile will provide your Personal Injury Protection benefits.
No-fault insurance sounds good. How do I go about claiming my PIP benefits if I am in an accident?
Contact your insurance agent or the claims office of your insurance company and ask them to mail you an application for PIP benefits. Once you receive it, fill out your application and return it to the insurance company so they can process your claim. If you are unsure how to complete the application, call our office and we will help you get it filled out correctly so that you receive all the benefits you are entitled to receive.
I have a car and insurance in a state that does not have no-fault laws. I have checked and I do not have PIP benefits. I was involved in an accident in Kansas and received an injury. What should I do?
If you are an out-of-state resident and you were injured in an accident in the State of Kansas, you are still entitled to minimum PIP benefits as provided by Kansas law. You need to contact your insurance agency and tell them that you want to make an application for PIP benefits.
I just bought a new car, and with my luck, I had an accident two days after I purchased it. Unfortunately, it was before I could contact my insurance agent to get insurance on the car. Now what?
If you already have insurance in place on your old car, by law, you have up to 30 days to add your new car to your policy. You should check with your agent upon purchasing a new car; some policies do limit the time period to add a new vehicle. Once your insurance on the new car is effective, you will also have PIP benefits in effect.
Is "PIP" mandatory on motorcycles?
No. The statutes define an automobile very specifically. PIP coverage is mandatory on passenger cars and trucks. Policies on motorcycles and other specialty type vehicles are not required to provide PIP coverage. Many companies will write PIP benefits for motorcycles or other specialty vehicles; however, there is always an additional charge. To ensure that you have benefits, you must contact your agent at the time you purchase a motorcycle or other specialty vehicle and make sure that your company adds "PIP" coverage to the insurance policy which you take out on the motorcycle or specialty vehicle.
What kind of benefits are available under PIP if I am injured in an accident?
The benefits are set by contract between you and your insurance company. However, the laws in the State of Kansas provide minimum benefits which are as follows:
- Disability benefits;
- Funeral benefits;
- Medical benefits;
- Rehabilitation benefits;
- Substitution benefits; and
- Survivor benefits.
What are disability benefits?
Disability benefits represent part of your monthly earnings. Disability benefits may be available even if you were unemployed at the time of the accident. You must be unable to work due to the injuries received. If you were unemployed at the time of the accident, your benefits can be calculated on past income and present ability.
If you were employed at the time of the accident, the law allows you to collect up to 85% of your monthly income up to a maximum amount of $900.00 per month in disability benefits. These benefits normally do not run for more than one year. Of course, you may purchase increased or deluxe benefits as noted above, which can dramatically increase your monthly disability benefits figure.
What are funeral benefits?
This is an allowance for the funeral, burial, or cremation, not to exceed $2,000.00.
What are medical benefits?
By law, your insurance company must provide at least $4,500.00 in medical coverage. This covers reasonable medical expenses rendered by practitioners licensed by the Board of Healing Arts. These include surgical benefits, x-rays, dental, as well as prosthetic devices, ambulance charges, hospital charges and specialized nursing care. These benefits are to name a few and are not representative of the types of benefits covered, but are certainly not the only ones covered.
Are doctors of chiropractic care covered under the medical benefits?
Answer: Yes. Since they are licensed by the Board of Healing Arts, reasonable chiropractic care would be covered under the medical benefits portion of your policy.
What are rehabilitation benefits?
Rehabilitation benefits are allowances up to $4,500.00 for psychiatric services, occupational therapy, or occupational training necessary to enable you to obtain suitable employment. This would include any retraining that you might have to have to return to employment or gain new employment.
Are you saying that my insurance company might pay for me to learn a new trade?
Yes. In some cases, your insurance company under the policy is obligated to retrain you to gain employment if your injuries prevent you from returning to your old job.
What are substitution benefits?
Substitution benefits are the reasonable expenses incurred in obtaining ordinary and necessary services that you would have been performing, but for the injuries. There is a maximum of $25.00 per day for no longer than 365 days if such expenses incur. This would include any maid or cooking services, as well as other types of services that you might perform around the house that you are unable to do because of the injuries.
What if my spouse performs those services for me now, but he/she didn't use to? Do I still get benefits?
The answer is not clear on spouses performing services. However, in many cases, spouses can be reimbursed for the services they have to perform because of your injuries.
If I am driving a friend's car and I have higher PIP benefits, which company pays?
The insurer of the motor vehicle which you are driving provides the "primary" coverage and your coverage would be "secondary" coverage on the accident. In any event, you get the amount of the highest benefits.
I was on foot when I was struck by another vehicle. Am I still entitled to benefits?
Yes. You are still covered by PIP benefits, so long as you had insurance on your car at the time of the accident and your injuries were caused by an automobile.
My son goes to college nine months a year, but he lives at home in the summer. Is he still covered by my benefit?
Yes. Since your son is a blood relative residing in the home, even though temporarily absent, he is still covered by your benefits.
I was driving to work when I had an automobile accident. My employer says I have workers' compensation benefits. Does that make a difference?
Yes, workers' compensation benefits are always primary. Additionally you have two potential claims, a workers compensation claim and a personal injury claim. You should be careful and hire an experienced attorney who knows who understands both claims and how to maximize your recovery for each.
If I was working when I got injured, should I not even worry about PIP benefits?
You should still notify your insurance agent or claims adjuster that you are injured. It doesn't cost you anything to make a claim under your PIP policy. In some cases you may qualify for both benefits. This area of the law is new and complex. You should contact an attorney familiar in these matters to see if you qualify for both benefits.
Is it hard to get these PIP benefits?
No. PIP benefits are simple to obtain in most instances. You obtain the application for PIP benefits from your insurer, complete it, and mail it back in. Technically, on proper notice, your company is supposed to immediately begin payments of PIP benefits. In some cases, it may be necessary to hire an attorney to collect PIP benefits.
How long will it take to get these PIP benefits?
Personal injury benefits are payable by law and shall be overdue if not paid within thirty (30) days after an insurance company is furnished with written notice of the loss. Disability benefits shall be paid at least every two (2) weeks after the notice. Overdue payments bear simple interest at the rate of 18% per year.
What if my insurance company doesn't pay on time?
The law allows the insurance company to make reasonable denials of benefits. If they are correct, the benefits are not overdue since they didn't have to be paid. If they are incorrect, it is altogether possible that you might be able to collect the interest as well as the benefits.
Can I hire a lawyer or will I be penalized?
Many people hire lawyers to help them with PIP benefits since they can be complex to understand. There are no penalties for hiring a lawyer.
Is it worth a lawyer's time if we are only a few dollars apart?
If your company is voluntarily paying you the maximum stated benefits under your policy, it you may not need an attorney. On the other hand, if you are uncertain whether or not your company is making proper payment to you under the policy, most reputable lawyers will not charge you anything to advise you whether or not there appear to be any additional benefits to which you are entitled. Secondly, if your insurance company refuses to pay you these additional benefits to which you may be entitled you will likely need an attorney. Additionally your attorney can usually be paid his attorney's fees by the company if it is necessary to file suit against the company to secure payment when they have wrongfully withheld payment.
I receive free medical benefits. Does that mean I can never sue?
No. The medical threshold is based on the value of the medical treatments, not on the amount that you actually paid. This could even include the value of benefits provided by a family member that would normally be performed by a nurse or other professional.
What does it mean if the insurance company brings it on my behalf?
Your PIP insurance company has a right to be repaid. If you don't file suit within 18 months to protect your rights and the rights of the insurance company, they may file suit to recover what they have paid. If the insurance company files suit against the negligent third party who caused the accident, they are also obligated to contact you and make sure that your rights are protected as well.
Are PIP benefits anything like uninsured motorist coverage or underinsured motorist coverage?
No. Uninsured motorist coverage is coverage that you have in addition to PIP. It covers you for injuries you receive from another vehicle that does not have insurance. Uninsured motorist coverage is a complex area of the law. You should consult with an attorney if you have been involved in an accident and the other party does not have insurance, or you believe that they do not have insurance. Underinsured motorist coverage is an offshoot of uninsured motorist coverage. Underinsured motorist coverage applies when the person who caused the accident has a policy with lower coverage limits than your policy. If that is the case, you may have additional rights against your insurance company that need to be evaluated. Again, this is also a very complex area of the law, and you should seek the advice of an attorney qualified in these types of cases.
What happens if I am not sure that I need a lawyer? Where do I get advice?
Our firm members have dedicated themselves to serving injured persons. We gladly provide a free consultation for people with questions about their personal injuries. This consultation can be either by phone or by person. Remember we have a "statewide" practice and accept cases throughout Kansas. If you have questions regarding any personal injury matter, or auto or homeowner's insurance claims or PIP benefits, please call us at McCULLOUGH, WAREHEIM & LaBUNKER, P.A. Insurance coverage can be complex and confusing; sometimes you just need to know what you have to do to obtain your benefits. What you do not know can cost you money and benefits.
If my insurance company and I don't sue anyone for this accident, do I have to pay my insurance company the money back?
No. The insurance company only has a right to be paid back if you are paid by the person causing the accident. If neither you nor your insurance company sues anyone in this accident, then you will not have to pay any of the money you received in PIP benefits back.
Should I tell my doctor that I have PIP benefits?
Yes. It is very helpful for the doctor to have a copy of your policy so he knows to whom to send the bills. If a doctor does not want a copy of your policy, sometimes it would be helpful if you just let him know who the insurance company is and the type of benefits you have available. Remember, PIP benefits are required by law in the State of Kansas.