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Tom Pugh May 6, 2020

Auto Accidents in Kentucky and Ohio: the Basic Law and Insurance Law

This will be an abbreviated lesson, but you can always reach out for more information. We will use some examples later in this blog regarding accidents where the motorists have Kentucky and Ohio policies, respectively. And an example of an accident occurring on a bridge between the two states.

You may wonder why this is a separate blog from the Auto Accidents in Kentucky and Ohio: What to do before and after an auto accident blog. This can be a difficult and tedious process to navigate, and the insurance side of things gets complicated. This blog does not contain everything that you could possibly run into, or every law that is implicated in an auto accident, and certainly, not all of the issues. You should be entitled to damages (money) and economic losses if you have been in an accident where there is fault on the other party involved, which caused your damages and losses. However, the laws concerning insurance, as well as other laws, are different in Ohio and Kentucky. This will be a small, hopefully informative, breakdown of the basic laws concerning auto accidents and insurance in Ohio and Kentucky.

After the accident you should always contact a lawyer as soon as possible. The issues can be complex and a lawyer can help you determine what the best options are. The hard stuff comes after the accident, where fault is being determined and what your injuries/damages are. If your damages are not that high, maybe you don’t need a lawyer. Most lawyers will give you an honest assessment of whether you have a case or not. I would recommend calling an attorney before contacting your insurance company or the other driver’s insurance company. Both your and their insurance company will attempt to call you and take a recorded statement, and both will attempt to settle the case early. If all of the above has already occurred, and you have not contacted an attorney yet, it’s not too late. Even if it’s a year after the accident, an attorney may be able to help you. It’s a good idea to talk with an attorney on the front end, so you don’t have problems a year later.

The basic law of any auto accident concerns a claim of negligence. There may be other claims, but this subject can be a lengthy one, so let’s try to keep it simple. A claim of negligence involves four basic elements: Duty; breach of that duty; causation; and damages. You, and the rest of the driving world, have a duty to control your vehicle, obey traffic lights, etc., and if you breach that duty, and cause damages, then you must pay for the damages. There are all kinds of sub-issues within each of those elements, but you get the idea. Both Ohio and Kentucky have a two-year statute of limitations. Ohio’s statute, or ORC § 2305.10, is two years from the date of the accident. Kentucky’s statute, § KRS 304.39-230, is actually a bit longer, because it runs two years from the date of the accident, or from the date of the last PIP (Personal Injury Protection (PIP) aka Basic Reparation Benefits (BRB)) payment from your insurance carrier, whichever is later. A Statute of limitations means that you must bring the claim within that period, or you are forever barred from making that claim.

When we talk about liability, that is a combination of duty and breach, or who is at fault. There can be more than one person at fault in one accident. You may be at fault in the accident, but not at fault as much as the other driver. This is where we really start to see the differences in the State of Ohio and the Commonwealth of Kentucky in these claims. Ohio is what is called a modified comparative fault state, and has adopted the 51% bar rule. If you are 50% or less at fault, you can recover for your injuries. If you are greater than 51%, you cannot recover. Kentucky is a pure comparative fault state. If you are 90% responsible for your injuries, you can still recover for the remaining 10% of your injuries, or any combination of percentages.

When it comes to damages, you should get an attorney, because it gets even more complex. Someone can be at fault, but the insurance companies and defense lawyers will try to diminish or reduce the value of your injuries. What are your damages? Hospital bills are a big one, and you are entitled to be reimbursed for the reasonable value of the medical treatment you received that is related to the accident. Your health insurance company or Medicare/Medicaid are entitled to be reimbursed for what they pay for your treatment, and will assert medical liens if any treatments run through them. A medical lien is a right of a medical provider or health insurance company to claim an interest in money recovered by a patient. If you are covered by Personal Injury Protection (PIP), the insurance company is entitled to recover their money as well. In both instances, the lawyer MUST make sure the medical lien is satisfied. Most times, the health insurer or PIP insurer is willing to negotiate the lien down, but sometimes they do not.

You are also may be entitled to your lost wages, any time you took off work, out-of-pocket expenses, co-pays, prescriptions, mileage to and from the doctors, and pain and suffering, etc. At least, we make claims for that when we try to negotiate settlements. Whether the insurance company recognizes those as actual damages is a debatable issue. They usually just pay a lump sum of money, without making a delineation on what amount goes towards any specific damage category. Also, you are entitled to property damage to your vehicle or any other property damaged. Your car will be what it is worth now, and not what you paid. Damage to your vehicle usually settled in the first week or two, but sometimes can take a little longer.

The area of damages that is usually the largest amount is pain and suffering. Lawyers usually estimate pain and suffering based on a multiplier of the total medical expenses, using their experience and data available from other sources to figure out the appropriate multiplier. What we usually see is soft tissue injuries (pulled muscles, neck strains, etc.) are usually a 1 time multiplier of the medical treatment; chiropractic care can be less than that; a facial injury or deformity, or a head injury, can be 7 to 10; and a broken arm, leg, or a knee injury can be about a 3 times multiplier. However, these are estimates, and there is no law that says your injury is worth X. It is really just projecting what a jury may award you, and there is no science to that at all, except based on past experience and other verdicts of similar accidents. So, if you have a knee injury and you have $1000 in medical bills, your pain and suffering award may be $3000, but not guaranteed.

In Ohio, there is a case called Robinson v. Bates. No it is not a boxing match between Robinson Carusoe and Norman Bates. It is an Ohio case, that says, Under ORC 2317.421, Defendants can argue that the reasonable value of the medical services are what the health insurance company paid. And what does that do? It can reduce your overall pain and suffering award, or at least Defendants argue for that. It can be argued either way, but the point is, the Defendant can argue that. You can also check out Ohio statute § 2315.18, which puts a cap on damages, but the statute speaks for itself, and it is too complex to add in here.

There may also be a claim for loss of consortium. This is the loss of love and affection, spousal duties, etc. This is a separate action maintained by a spouse, parent, or child. In Kentucky there is a one-year statute of limitations. In Ohio, loss of consortium is a derivative claim, so it is dependant on the primary personal injury claim, but has an overall four-year statute of limitations, but two years for an auto accident, since it is dependent on the auto accident claim. Ohio evaluates the loss of services, support, and marital relationship.

In each state, you will have to carry minimum limits. Insurance law can be confusing, but is probably the most important part, because it is likely that’s where you’ll recover your money from. In Ohio, your minimum limits are $25,000 bodily injury per person, $50,000 total, per accident, and a $25,000 property damage (split limits). So, these are separate limits (that’s what split means), and only they are only the minimum. In other words, it’s like the lowest possible, but not what I recommend you should get when you buy insurance. Kentucky is pretty much the same, $25,000 in bodily injury per person, $50,000 total bodily injury, per accident, $25,000 property damage (split limits). No one really goes that low, though, and most agents will say, “How much does it cost to replace a vehicle on average? Probably more than $25,000.” In Kentucky, you can also get a combined single limit, which I never see, at $60,000. See Kentucky statute, KRS § 304.39-110.

Minimum limits are not what you should get to protect yourself. It’s just all the insurance company is obligated to pay, and you have to pay the rest if you are at fault. I personally carry limits of $100,000. I have more than the minimum limits because I don’t want to have to pay someone, and I want to be covered.  Here are some other coverages I have that are higher as well. $100,000 uninsured motorist (UM) and underinsured motorist (UIM), $10,000 medical payments (if insured in Ohio, if in Kentucky, then just the PIP is fine), and uninsured motorists (UM) Property damage (only available in Ohio for vehicles that do not have full coverage). Otherwise, keep full coverage on your vehicle, in case the other vehicle is not insured, which happens all too often. These policies are designed to protect you and is not something you mess with by paying too little. Make sure to protect yourself, and do not expect that the other driver will have insurance, ESPECIALLY in a downturn economy. Auto insurance is often considered by some to be a luxury, and people who are in a financial hardship will let the insurance lapse, since they can still drive without insurance, just not legally. So with the pandemic, and massive unemployment, protect yourself, and make sure you have really, really, good insurance, with high limits, med pay or PIP, and UM/UIM.

Another important coverage that few understand is Personal Injury Protection (PIP) and Medical Payments (Med Pay) coverage, where in both cases, your insurance company pays for the first part of your medical treatment. In Ohio, for Med Pay, you can get whatever limit you want. I had $10,000 on my Ohio policy, so that way, I don’t go broke paying medical damages, because the other driver’s insurance company won’t pay for it until the treatment is complete. You can go broke really quickly paying for hospital bills. In Kentucky, everyone gets $10,000 in PIP, a.k.a. BRB ,or right to Basic Reparation Benefits. See Kentucky statute, KRS § 304.39-030(3). You can opt out, but I’m not sure why you would. So insurance is a contact, so insurance law is like contract law, and that’s why your insurance is governed by the state in which you live, unless it is superseded by a statute (like PIP). Both PIP and Med Pay operate the same. Both come from your insurance carrier and need to be started ASAP. So, whether it’s you or your attorney, get that claim open ASAP. Present the claim number to your medical provider along with the contact information for the insurance company (your insurance company). Kentucky doctors are used to this, but Ohio doctors are a little confused by it sometimes. PIP can also cover lost wages at 80% per week, max. $200, but be careful of exhausting your PIP limits by doing that. Better to focus on your medical bills.

Now let’s talk about UM/UIM coverage. UM or Uninsured Motorist coverage is coverage you buy for when the other person has no insurance. It happens a lot more than one would think. I have $100,000 in UM coverage, and I have $7,500 in UM property damage, so if the other driver has no insurance, I have $100,000 in bodily injury coverage, and $7,500 to replace my car. Statutes and exceptions vary on UM depending on the state, but uninsured motorists coverage is usually triggered when the other driver has no insurance, their insurer denies coverage, an unknown driver hits you (hit and run), diplomatic immunity, and sovereign immunity. The other person has to be a person, and not covered by insurance, so cows and deer are out, as well as acts of God. UIM or Under Insured Motorist coverage is for when the other driver does not have enough insurance, like they have the minimum limits. Other sources of insurance can come into play, and you must cooperate with your insurance company before you sue them.  If you get into an accident with a person who only has minimum coverage and you have $100,000 in damages, this would let you tap into your UIM coverage.

There are differences between Ohio and Kentucky with UM/UIM insurance coverage law. First, Ohio is not required to offer UM/UIM coverage. See Ohio statute, ORC § 3937.18. In Kentucky, excess is required to be offered. See Kentucky statute, KRS § 304.20-020, which says UM coverage is given unless rejected in writing; see KRS § 304.39-020, saying UIM shall be made available. Let’s assume there is an Ohio driver, with an Ohio insurance policy that has $50,000 in UIM coverage, and there is a Kentucky driver, with Kentucky insurance, and $25,000 in liability limits. The Ohio driver has $50,000 in medical bills, so the Ohio driver will get $25,000 from the Ohio policy and $25,000 from the Kentucky policy. Your insurance company can come in and contest the whole thing. They don’t just have to cough up the money, but that’s a whole other issue. What happens when the Ohio driver only has $25,000 in UIM insurance? They get nothing. Ohio makes UM/UIM non-mandatory and makes it a set off. I’m not sure why, and it doesn’t really make any sense. If you pay for $50,000, you should get $50,000 extra, but that is Ohio law, so we just have to deal with it. If you have a driver with Kentucky insurance, regardless of where they get into an accident, it follows Kentucky law. So, if they have $50,000 in extra UIM coverage, that’s what you get, $50,000. Of course, your insurance company still has to approve, and they can contest it. Kentucky law says it is extra, doesn’t matter the limit. And, remember, UM coverage is on your policy, unless you otherwise get it in writing. UIM coverage has to be offered. Usually, you get both.

There are obviously very distinct differences between the two states regarding insurance laws, accident laws, and you need to be aware of that. Assuming a motor vehicle accident, not a boating accident on the river, Ohio only owns three feet of the river. So, the accident could be located in Kentucky if it is on the bridge. If it happens past the shore, it’s Ohio. The insurance law would depend on where the contracts were made, or where the residence is of the policy holder.

There are two scenarios where you still get PIP. If you have an Ohio policy and the accident is in Kentucky, you get PIP coverage; the UIM set off applies. Kentucky law controls the accident though. If it is a Kentucky insurance policy, and the accident is in Ohio, you still get PIP, Kentucky’s UM/UIM excess law applies, but Ohio law controls the accident itself.

Thank you for reading and we hope this was informative.