Articles Posted in Car Accidents

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Massachusetts residents often travel to nearby states, and several out-of-state drivers make their way to Massachusetts. If an accident occurs in Massachusetts, and the at-fault party has an out-of-state policy, the question of which law applies may arise in a personal injury action, especially if there’s a difference in the required minimum coverage. Individual states each have their own car insurance policy requirements that dictate minimum amounts of coverage. Individual insurance companies have uniquely written policies that comply with the state in which they are licensed. As medical bills add up, maximizing the amount paid by an insurance company can mean saving thousands of dollars, and a judicial determination of which law applies can affect how much is paid out of pocket.

A Massachusetts state appellate case, Clarendon Nat’l Ins. Co. vs. Arbella Mutual Ins. Co., provides an example of how state courts handle this situation. In this case, a woman was driving a loaner car from her dealership when she had a car accident with four other vehicles. The loaner car was covered by an insurance policy in Rhode Island. When there are two competing laws that could apply to a car accident, the forum state’s conflict-of-laws rules choose which state’s law is applicable. The accident in Clarendon occurred in Massachusetts, so the court looked to Massachusetts case law and the Restatement of Conflict of Laws to determine whether Massachusetts or Rhode Island insurance law applied.
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When a Massachusetts car accident case goes to trial, experts are often used to aid in the explanation of an injury or particular process. Often, one of the experts used is a doctor who either examined the patient or reviewed his or her medical records to provide an opinion on the diagnosis and necessary treatment. In many cases, after the claim is filed, the insurance company for the defendant will seek an evaluation by one of its own recommended physicians, who may create a report or testify at one of the proceedings.

The doctor for the defense is frequently used to challenge whether or not the injury was caused by the accident. All personal injury cases involve four legal elements: duty, breach, causation, and damages. In a car accident case, the injured person must show that the at-fault party had a duty to follow the traffic laws and drive safely, that the at-fault driver failed to uphold his or her duty, and that this failure to uphold the duty resulted in an injury and resulting damages to the victim. Medical conditions may have been caused by multiple incidents throughout the injured person’s life, so it is necessary to show that the injury was causally related to the accident to recover damages like medical expenses and lost wages.

The Massachusetts Court of Appeals Case, O’Malley vs. Soske, 76 Mass. App. Ct. 495 (2010) answered the evidentiary question of whether or not a report created by the defense doctor is admissible at trial. In O’Malley, the injured person was hit in a back-end car accident by the at-fault party. She pursued a claim against the defendant, stating that she suffered injuries to her back and neck and required neck surgery. After the complaint was filed, the defendant requested an examination by an orthopedic surgeon, who concluded that the woman did not suffer injury to her musculoskeletal system as a result of the accident. The doctor did not testify, but the report was allowed at the injured person’s trial. At trial, the jury found the defendant at fault for the accident, but also found the alleged injuries were not caused by the accident, which prevented the award of any damages for the injury.
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In Massachusetts, drivers can purchase Medical Payments (MedPay) coverage on their automobile insurance policy. This coverage is optional and therefore additional premiums would apply. However, this additional coverage, which can pay your medical bills resulting from a car accident, is well worth the extra premium. For reference, please feel free to check out our previous blog update The Benefits of Having Medical Payments On Your Massachusetts Automobile Policy. Unfortunately, many times the insurance company isn’t willing to provide you with the benefits you pay additional premiums for.

Recently, the Massachusetts Supreme Judicial Court (SJC) heard a case, Golchin v. Liberty Mutual Ins. Co., 466 Mass. 156 (2013), wherein the Plaintiff was seeking benefits under MedPay as a result of injuries she sustained in a motor vehicle accident. The Plaintiff’s health insurance company paid her medical bills, asserted a lien on her settlement, and was paid from the settlement of the case. The Plaintiff had purchased $25,000.00 in MedPay coverage. The health insurance lien was about $32,000.00. The Plaintiff now seeks the $25,000.00 in MedPay benefits to be issued to her. The Defendant a/k/a insurance company denied the MedPay coverage stating the Plaintiff’s medical bills were already paid under her health insurance coverage and therefore there was no so-called bill to pay. The Plaintiff brought suit against the insurance company stating that its failure to provide the MedPay coverage she pays additional premiums for constituted a breach of contract between her and the insurance company, as well as a breach of the implied covenant of good faith and fair dealing, which is a violation of M.G.L. c. 93A.

The issue before the SJC was whether MedPay benefits were available when the medical bills or expenses have already been paid by the health insurance carrier.
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Have you ever taken a serious look at your automobile policy?

Massachusetts is a no-fault state. By law, each motor vehicle insured in Massachusetts is automatically equipped with $8,000.00 of Personal Injury Protection (PIP) coverage. PIP pays for reasonable medical expenses, lost wages, and if applicable, reimbursement of replacement services, such as necessary household services.

As some of you may already know, PIP pays for the first $2,000.00 in medical bills. Once PIP exhausts that first $2,000.00 in coverage, it will then defer any outstanding and future medical bills to your health insurance provider. The remaining $6,000.00 in coverage is available for lost wages, and any medical expenses not covered by your health insurance carrier, such as deductibles, co-pays, and non-covered services. One caveat to this rule is that if you have Medicare or MassHealth, then PIP will pay the full $8,000.00 in medical expenses. The initial $2,000.00 exhaust is not applicable to Medicare or MassHealth recipients.

Once that $8,000.00 in PIP benefits is exhausted, (and believe me, it goes quickly), then you will have to pay all co-pays, deductibles, or non-covered services from your own pocket. In today’s economy, a majority of individuals do not have the extra money to pay these co-pays, deductibles, or non-covered services from their own pocket, and therefore, their health suffers because they cannot afford additional treatment.

If you select to have additional Medical Payments (Med Pay) coverage on your motor vehicle insurance policy, then you will have additional benefits to pay for those out-of-pocket expenses.

As previously mentioned, Med Pay coverage is optional and therefore you pay additional premiums for this coverage. However, the benefit outweighs the risk. For example, if you were involved in a motor vehicle accident and ruptured your ACL tendon in your leg or tore your rotator cuff in your shoulder, your medical expenses would presumably be in the thousands. You would need to seek treatment from an orthopedic surgeon who would order x-rays and MRIs, and you would most likely undergo a surgical procedure to repair your injury, which would require a hospital setting, orthopedic surgeon, anesthesia, follow-up care including physical therapy, etc. The medical bills add up quickly.

Available Med Pay coverage can be as little as $5,000.00 or upwards of $25,000.00 or higher.

There is another benefit to having Med Pay coverage. In Metropolitan Property and Casualty Ins. Co. v. Blue Cross and Blue Shield of Massachusetts, Inc., 451 Mass. 389 (2008), the Massachusetts Supreme Judicial Court held that when the health insurance policy specifically defers payment to Med Pay coverage, then, after the initial $2,000.00 in PIP is exhausted, instead of your medical bills being submitted to your health insurance provider, Med Pay will kick in first and pay your medical bills. This is great because typically a health insurance provider will attach a lien to your personal injury case. This means that the health insurance company is entitled to reimbursement for all the treatment it paid for you. The health insurance company would be reimbursed from the settlement of your case.

For additional information, please see:

Massachusetts Automobile Insurance Policy, Page 15, Part 6, Medical Payments

Commission of Insurance’s Clarification of Coordination of Benefits under M.G.L. c. 90 Section 34A and the Interrelationship by and among PIP, Health Insurance, and Medical Payments
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Texting while driving is a serious offense. On September 30, 2010, Massachusetts enacted a texting while driving law prohibiting all drivers from composing, sending, or reading text messages while driving. (M.G.L. c. 90 § 13B) At the same time, Massachusetts enacted an even stricter law prohibiting teenagers under the age of 18 from using any type of cell phone whatsoever while driving, including a hands-free phone or other mobile electronic device. (M.G.L. c. 90 § 8M)

In a nut shell, this means that (1) all drivers, regardless of age, are prohibited from texting while driving, and (2) all drivers under 18 are prohibited from using a cell phone or hands-free device whatsoever.Yesterday, an 18-year old Haverhill teenager, who was 17 at the time of the accident, was convicted of texting while driving. It was reported that the teenager had sent 193 texts that day, a couple texts shortly before the accident, and then several more after the accident. The teenager was distracted from his driving, crossed the center line, and struck another vehicle head-on, killing a man and seriously injuring a woman. The teenager was charged with a host of traffic violations, including the new texting while driving violation, as well as a very serious charge of vehicle homicide. (M.G.L. c. 24 § 24G)

The teenager was sentenced to serve one year of jail time, conduct 40 hours of community service, and lost his driver’s license for 15 years. This teenage won’t be able to drive again until he is about 32 years old.

According to the U.S. Census Bureau’s report which includes motor vehicle accidents and fatalities statistics, there were 33,808 fatal car crashes in 2009.

According to the U.S. Department of Transportation (USDOT) National Highway Traffic Safety Administration (NHTSA), 5,474 (16%) of fatal car crashes in 2009 were attributable to driver distraction. More specifically, 995 (18%) of driver-distracted fatal accidents involved a cell phone.

“Distraction is a specific type of inattention from the driving task to focus on some other activity instead.” (See NHTSA) This includes a myriad of distractions such as “cell phones, eating, talking to passengers, looking outside, etc… fatigue, physical conditions of the driver, and emotional conditions of the driver.” (See NHTSA)

Astonishingly, AAA conducted a study of 1,000 teens in 2007 and found that texting while driving is just as dangerous as drinking and driving with 46% of teens admitting to texting while driving.

Many of us recognize the dangers of distracted driving but are adamant that it won’t happen to me or that my teenager won’t do that. Think proactively and make a change. Remember that you are the biggest influence on your teenager and they are watching you as you talk or text while driving. This Haverhill case decision clearly shows the ramifications of texting while driving.

If you would like to learn more about this topic, please click on the link to view ABC News “Mass. Teen Aaron Deveau Faces Prison in Landmark Texting Homicide Case.”
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