I have written a few previous posts discussing the importance of uninsured motorist coverage on your auto insurance policy if you are involved in a serious auto accident, but no posts focused solely on underinsured motorist coverage. Uninsured motorist coverage will also serve as UNDERinsured motorist coverage if you are involved in a car crash with someone who has too little insurance. In Rhode Island the minimum liability coverage is only $25,000 and in Massachusetts it is even less at $20,000. If you have been seriously injured in a car accident or a motorcycle accident, your medical bills alone might easily exceed these small amounts of money.

Depending on the coverage you have on your policy, and the amount thereof, you may be able to use your uninsured motorist coverage to help pay for the damages over and above the amount of coverage that the at-fault driver maintained. Your insurance company will essentially “take the place of” the at-fault driver’s insurance company. There is a major difference between Rhode Island and Massachusetts when it comes to underinsurance law.

Underinsurance in Rhode Island

Rhode Island has more favorable laws than Massachusetts if you have been seriously injured in a car accident and need to utilize your underinsurance coverage. If the at-fault driver’s insurance company has paid it’s policy limits, whether that amount is the minimum $25,000 or $300,000, but it is less than the full value of your claim, then you can turn to your own policy. Your insurance company will be able to “write-off” the amount that you already received from the other company but you are still entitled to the full value of your uninsured motorist policy no matter how large or small. For example, if your full value is approximately $100,000 and the at-fault driver has a $50,000 policy, then you have roughly $50,000 that you are still owed. If your uninsured motorist policy is equal to $50k or more then you are likely to be fully compensated. If your policy is for the state minimum of $25k, then you are entitled to the full amount but you will still not be fully compensated for your loss.

Underinsured motorist coverage in Massachusetts

The concept and workings of uninsured motorist in Massachusetts is largely the same as described in the Rhode Island section above with one major exception. In Massachusetts, you can not “stack” your insurance policy on top of the at-fault driver’s insurance policy. Your coverage amount must be in excess of the at-fault driver’s policy or you will not be able to access any money from your own insurance. For example: Your injury is worth $50,000 and both the at-fault driver and your own policy is for the Massachusetts minimum of $20,000. In this scenario you are not entitled to ANY of your underinsured motorist because your policy is not in excess of the at-fault driver’s. This is why Rhode Island law is much more advantageous because in this scenario you would be entitled to $40,000 in Rhode Island but only $20,000 in Massachusetts.

Some Other Points

arbitration v. court

If you begin the process of trying to settle your serious injury claim with your own insurance company, you are bound to your insurance contract. This means that you must cooperate with the insurance company in ways that you did not have to with the at-fault driver’s insurance company. Another major difference is that many insurance companies have written arbitration provisions into their insurance policies. This means that all disputes, including underinsured motorist claims, must be dealt with by arbitration rather than litigation. This can be either a blessing or a curse, but arbitration is for another blog post.

other household members

Your car accident attorney should also review all of the household members at your residence because their auto insurance policies, if different than yours, might cover you for underinsurance.

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A new report has been released by a consumer protection agency outlining exactly how Allstate Insurance and programs like Colossus lower the value of your personal injury settlement. I will discuss the prominent points of Colossus below, but you are welcome to read the entire report here.

Most injury victims, particularly those with soft tissue injuries from automobile accidents, are unaware that insurance adjusters rarely determine the settlement value of your case. Instead, a highly sophisticated computer program named Colossus, pre-programmed with tons of data, is the ultimate decision-maker. This software, however, is designed to keep your settlements low.

How Allstate and Colossus Manipulate Settlement Figures

Geico recently sent out a mass email to clients, and anyone else willing to listen, discussing the proposed bill in Rhode Island regarding compensation to auto body shops and fair settlement of property damage claims. Of course the insurance companies are using fear tactics informing everyone that rates may skyrocket with passage of this bill. I want to take this opportunity to offer a fair assessment of this bill, its purpose and the reasoning behind it. Trust me, I am not going to shed any tears for Geico, who I have previously described as one of the most difficult insurance companies to deal with, but I ultimately believe this bill is not going to pass as written even though it has a lot of strong points. Maybe I’ll be proven wrong…

If you’re involved in an auto accident, you may have a personal injury claim, but you will almost certainly have a claim for property damage. Property damage resolution is a major part of any motor vehicle accident claim and that is why my office helps clients with their damage claim for free if I represent them for their bodily injury claim. Insurance companies will fight for every penny on a property damage claim, cutting short rentals and lowering the value of your vehicle if a total loss. The purpose of this bill is to limit some of the tactics that insurance companies use to de-value property damage claims.

The bill puts into law many regulations that the Department of Business Regulations has already established for settlement of property damage claims. For instance, insurance companies are supposed to use NADA (or something similar) for the valuation of total losses. Insurance companies are also forbidden from trying to steer vehicle owners to a particular body shop. Almost all auto insurers, especially the larger ones, have partnerships with certain body shops in the State. Insurance companies try to direct customers to these body shops with the understanding that the auto body will be reasonable in negotiating the estimate and will work at agreed labor rates. This bill, if passed, will forbid insurance companies from steering vehicle owners to a particular body shop if the owner has already chosen their shop of choice. Of course, it has always been established that a person ultimately has the right to choose what shop they repair their vehicle at.

Even though lead paint has been banned in the United States since 1978, many houses still contain the poisonous material on its walls and window beams. Many of the houses in Rhode Island and Massachusetts that still possess lead paint are older multi-unit buildings such as 3 family houses and generally tend to be in poorer sections of the community. The problem is so wide spread that Rhode Island offers tax credits to encourage home owners to remove any and all trace of lead paint from their building.

Lead paint if ingested is highly poisonous and toxic, particularly to children under 6 who are still developing. Unfortunately, children under 6 are the most likely to ingest lead paint by licking the walls or eating paint chips. To make matters worse, lead paint actually has a sweet taste which can further encourage children to ingest lead paint chips. It is also misleading to believe that children must ingest paint chips in order to be poisoned because ample testing has shown that ingesting lead paint dust can have a similar detrimental effect on young children. Ingestion of lead paint can lead to developmental delays, nervous system damage, stunted growth, kidney disease and a host of other injuries and disabilities.

Massachusetts has a history of favorable decisions on behalf of lead poisoning injury victims and while Rhode Island has much less case law on the subject, lead paint actions can be brought against landlords or homeowners who negligently allow children to be exposed to lead paint. Insurance companies often fight these cases aggressively looking for ways to deny insurance coverage to the injured victims. Lead poisoning cases are extremely complex and require an experienced personal injury attorney to secure a favorable result.

The injuries to your child may be life changing and permanent if exposed to high levels of lead. This can lead to future medical expenses, a loss of earning capacity and/or potential and a tremendous amount of pain and suffering. It is imperative that you speak to a personal injury attorney right away if your child has been diagnosed with lead poisoning. Following such a diagnosis, the State Department of Health will usually order an investigation into the residence to identify the presence of lead paint. If the Department has identified lead in your rental property, you may have a case for damages.

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Asking what a contingent fee agreement is may be the most obvious question in the world of personal injury law even though I have never really discussed it before in detail. Every personal injury attorney in Rhode Island or Massachusetts will tell you that there is no fee until you receive money either by settlement or by jury verdict. My office also adheres to the same policy of no fee unless successful. This arrangement is the so called contingency fee agreement. But what does that really mean and how does it work?

It can cost several thousand dollars in legal time and expenses to handle even a minor car accident. Cases with major injuries such as broken bones, scarring, hospital stays or even death, may cost tens of thousands of dollars to properly and aggressively handle, especially if the case goes all the way to trial. This is especially true in cases of medical malpractice and product liability.

Personal injury attorneys understand, however, that accident victims may not be able to afford such high legal fees just to receive the compensation that they deserve. In fact, many people are most vulnerable after a car accident or slip and fall because they are forced to miss work and lose wages. For this reason, many attorneys agree to take the case for free unless and until there is a settlement or jury verdict. At that time, the personal injury lawyer will take his share of the settlement according to your contingent fee agreement. The overwhelming majority of attorneys, including my office, charge 1/3 of the total settlement fee. Some attorneys now charge 40% of the total settlement. This 1/3 fee is not written in stone and it is not a law.

A national story printed on cnn.com discussing an investigation into bicycle accidents in New York City brings to light what is truly a nationwide dilemma. Rhode Island and Massachusetts are not without their fair share of bicycle accidents that result in serious injury and the question has to be asked whether the law does enough to protect bike riders on public streets.

Michelle Matson was struck while riding home on a bicycle by a driver who was speeding and subsequently fled the scene. She was nearly killed in this accident with serious injury to her skull and spine. She feels little effort was made to investigate the accident or apprehend the driver who nearly killed her and left the scene. As a result, Ms. Matson’s life was turned upside down and she has no legal recourse to recover for her pain and suffering and hundreds of thousands of dollars in medical bills. The question must be asked why no thorough investigation was conducted? The article points out that absent death or catastrophic injury, little investigation will be conducted into a bicycle accident.

There is no doubt that this problem exists in Rhode Island as well. While bicyclists have a right to use the road under the same rules as motorists, the assumption is that bicyclists merely get in the way of operators of motor vehicles. Bicycle riders must maintain the absolute care and lookout for all of their surroundings, yet the law puts little requirement on vehicle operators to take such care. Auto accidents involving pedestrians and bike riders are almost always serious because bikes offer such little protection to riders. The law must seek ways to better protect bike riders and more thoroughly investigate accidents.

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Among the stranger articles that I come across each day, CNN Money has reported that fatal car wrecks see a spike in frequency on Tax Day, April 15, the day by which everyone must file and pay their annual taxes. According to the article, the odds of being involved in a fatal car accident is 6% higher on April 15 than any other day of they year! The only other day of the year with a similarly high jump in deadly car wrecks is Super Bowl Sunday which I suppose would be easily attributed to drunk driving.

The reasons behind a spike in fatal car accidents on April 15 is not quite as clear, however. Some of the suggested reasons for this finding is that stressed drivers are more error prone drivers. The lack of sleep and/or concern over the filing of taxes can lead to distracted and disoriented drivers which leads to an acute spike in the number of accidents.

In case you didn’t have enough reason to dread tax day…

I woke up this morning to a tragic story in the Providence Journal in which a Delaware woman was struck and killed in Rhode Island by a wheel that had “flown off” of a Hummer. Apparently the two vehicles were traveling on the highway in opposite directions when the wheel came free of the Hummer and traveled all the way across the divider into oncoming traffic striking the poor victim.

The comments section to the story included many questions as to fault in this accident, in particular, whether the owner of the Hummer should be held responsible. The answer is absolutely, yes. Not unlike my recent post discussing sudden illness and auto accidents, in which I explained that a person needs to be aware of their medical condition and accepts the risk of causing an accident because they fall ill, a person needs to be aware of the overall condition of their vehicle. Similarly, if our vehicle malfunctions in such a way as to cause injury to another person, then we are responsible for not properly maintaining the car. Driving an unsafe vehicle or ignoring loud noises or other warnings that the car is not operating properly is negligence and a person is definitely responsible if that negligence leads to another’s damages.

The facts of this case, however, suggest that additional defendants will also be responsible. There may be several potential defendants for a product liability claim in connection with this auto accident. The personal injury attorney should explore how and why the wheel came off of this vehicle. Were defective lugnuts or wheel bearings on this vehicle? I have seen other online articles suggesting that the wheels of a Hummer H2 can come off at high speeds which leads to question whether the Hummer is designed defectively. If so, GM may find themselves a party to this lawsuit.

The companies are all over television, advertising usually at the same time as many personal injury attorneys who advertise on television. They are lenders, such as Peachtree financial and Oasis financial, who tell you that they will advance the money to you that you will potentially receive when your personal injury case settles. It is a practice known as pre-settlement funding or litigation lending. Many of my clients have asked me about working with these companies. The short answer is – NEVER. Here is what you need to know before signing up.

Personal injury cases do not ordinarily settle quickly. The injured party has to obtain medical treatment for several months or more and then the attorney has to undergo a lengthy process of negotiating with the insurance company. Furthermore, if the insurance company is unreasonable, the case may need to be litigated. During this time, the injured party may be out of work and may have medical bills and/or other expenses piling up. In comes, a pre-settlement funding company offering to lend you the money to pay those bills so that you do not have to wait for your injury settlement. The catch – some of these companies charge as much as 200% interest!!! Yes, 200% interest. It is no surprise to find out that this type of loan arrangement was first conceived of by an indicted loan shark out of Las Vegas. And as of right now, the practice is legal. Rhode Island, however, now has a bill pending that looks to cap such loans at an interest rate of 21%. I certainly hope that it passes because these loans are predatory and victimize accident victims.

I sadly had one client, who I represented for an auto accident, fall victim to this type of loan. I begged the client not to take out this loan because I knew that the contract was awful and the loan was essentially a scam. Nevertheless, he convinced me by saying that he might lose his apartment if I did not sign the paperwork. I conceded. He took out a mere $500 and when his case settled a few months later he owed $947 in interest and fees. He paid almost double to the lender after less than six months.

I am so grateful to all of my family, friends, past and future clients for helping to make my law practice such a success. Today marks 3 years since I opened my own doors in Providence and I can hardly believe it. I’ve been so fortunate to meet so many great people throughout Rhode Island and Massachusetts (and in the case of entertainment law, people all over the country!) and I feel blessed to have the opportunity to help with their legal needs.

The last year was the best yet with a record number of new clients and cases and some terrific results for my clients in personal injury, entertainment law and criminal defense. I am proud to describe just a few of the great results and projects that I was involved in over the past year alone:

In Personal Injury: