262.547.2611

Blog

♦ Legal Myth Busters: Myth #3 “I Don’t Have to Reimburse My Health Insurer”

After Receiving My Personal Injury Settlement, I Don’t Have To Reimburse My Health Insurer/Med-Pay Provider for Amounts Paid for My Accident-Related Medical Bills Wrong. The reason this myth likely arose among non-lawyers is that clients understandably believe that the high cost of monthly insurance premiums that they pay for health and auto insurance—including all those years when they never used the coverage—should be compensation enough so why should they receive anything from a client’s personal injury settlement? I definitely sympathize with my clients on this point, but the reality is that the law is not on their side. There is a reason why, however, and sometimes understanding of the law can soften the blow. What is Subrogation? Most health insurance plans and automobile med-pay coverage provisions have a section in the plan or policy entitled either Subrogation, Coordination of Benefits or Right of Reimbursement. These provisions state that while the insurer is obligated to pay medical expenses pursuant to the terms of the contract, they also state that if any of the medical expenses paid are due to an accident and their insured pursues a claim against an at-fault party for damages and obtains a recovery, then the plan has a right to be reimbursed for the amounts they paid for accident-related care. Even if your health insurer or automobile med-pay coverage insurer did not have that language in its plan or policy, subrogation is still recognized by the courts as an equitable (fairness) doctrine, as distinct from a contractual provision. This right to piggy back along with an injured party’s claim and seek reimbursement in the event a...

♦ Legal Myth Busters: Myth #2 – Traffic Tickets and Personal Injury

The Traffic Ticket Given to the Other Driver and the Police Officer’s Opinion of Who Caused the Accident Are Admissible As Evidence If My Personal Injury Case Goes To Trial Clients are always surprised and frustrated to learn that the jury is not allowed to hear that the other driver was issued a traffic ticket—often for following too close or inattentive driving in a rear-end collision, or for disregarding a traffic signal in an intersection collision.  Almost always, such evidence will be excluded by the judge at a jury trial. There are two main reasons why this is the case.  First, most drivers just pay the ticket rather than contest it, and there is a state statute that expressly allows them to enter a “no contest” plea without the traffic conviction being used against them to prove fault in a later civil action. Second, as to the opinions of the investigating police officer contained within the accident report, unless the officer happened to actually be an eyewitness to the crash, his or her opinions are viewed by the court as based only on after-the-fact hearsay provided by the involved drivers or any eyewitnesses to the accident. The judge excludes the officer’s conclusion based on hearsay, because of a belief that the jury should be allowed to draw its own conclusions about fault after hearing all of the testimony from those that actually observed the events leading up to the collision.  The court does not want the jury’s role as the finder of fact and determination of the credibility of witnesses to be unduly influenced by conclusions drawn by the...

♦ Selecting the Right Attorney For Your Personal Injury or Wrongful Death Case – Part 2

In Part 1 of this blog, Selecting the Right Attorney for your Personal Injury or Wrongful Death Case the initial steps for building a list of prospective attorneys and legal firms that may be right for your need were discussed. Now that you have completed a list of possible law firms based upon your initial research, picking up the phone and contacting them is your next step. You’re initial phone conversation can provide useful insights. Does the attorney seem distracted or in a hurry just to schedule an appointment without taking any time to speak with you first? If they can’t take the time to talk with you on the phone, they are probably going to be one of those attorneys who will not have time to give attention to your case or return your phone calls later when you want the status of your case. If the attorney seems knowledgeable, caring, and willing to answer your preliminary questions, then request an initial consultation. Most firms offer an initial consultation in personal injury matters at no charge to you, so feel free to meet with more than one firm if you are unsure of the fit after the initial consultation. In that initial meeting, question the attorney about his or her background and experience in the kind of injury claim you have. Find out if the attorney specializes in that area of law. Make sure that you ask about the attorney’s trial experience, because you want to make sure you hire someone who is willing and able to take your case to trial if settlement negotiations are unsuccessful. Not all...

♦ Selecting the Right Attorney For Your Personal Injury or Wrongful Death Case – Part 1

Your mail box, your TV, and your phone book are full of advertising by law firms – all claiming to be the best firm to handle your personal injury or wrongful death claim. In the “old days,” such promotion did not exist as law firms were not legally allowed to advertise their services to injury or wrongful death victims or their families. As a result, clients found their way to a good firm simply by word of mouth from other satisfied clients. In more recent times, because marketing to injury victims is now allowed, virtually all firms engage in some kind of advertising, whether they want to or not, in order to stay competitive, and make sure that prospective clients are aware of options beyond just those firms who have decided to make the most “noise.” The end result is that prospective clients can become overwhelmed and find it difficult to decide which firm is really the best fit for their particular case. This article is intended to provide some helpful steps for wading through that attorney selection process. Ask people you know and respect whether they have a law firm that they trust who has helped them with a similar situation in the past. That way, you have a first-hand reference of who to contact or who to avoid for an initial consultation. Review the websites of legal firms you believe might be a good fit. Take a look at the attorney profiles listed and the information about their education and experience level in handling the kind of claim presented. Has the firm been around a long time,...

♦ Lacking a Premarital Agreement, Wisconsin Marital Property Law Presumes Acquired Wealth To Be Equal at Time of Divorce

Wisconsin has a marital property law which is based on a view of marriage as an equal partnership. It does not matter if one spouse’s efforts are more significant in the creation or acquisition of assets than the other spouse, the marital property law presumes that the acquired wealth during a marriage to be equal. This law probably has it greatest significance at the time of termination of the marriage due to death or divorce. Upon divorce, the assets will be presumed to be divided on a 50/50 basis even if significant assets were owned prior to the marriage. Individual property owned prior to marriage becomes marital when it is commingled with marital property, most often this marital property is the income generated by the party during the marriage. For example, if someone owns a home with a mortgage prior to marriage and then continues to pay on this mortgage with marital income, the classification of the home becomes marital. Upon divorce, the value of the home will be considered an asset which should be divided on an equal basis. Although the Court can deviate from the 50/50 if such seems to be equitable, the court’s decision would be a subjective decision. The one way to avoid this problem is for the parties to take advantage of the marital property law which allows parties to define their partnership differently from a 50/50, equal partnership. A marital property agreement entered into prior to marriage, often referred to as prenuptial agreement, can define your partnership rights and obligations different from the marital property law. For example, you can protect in the divorce process individual property acquired before the marriage even if additional contribution or appreciation to the...

♦ Legal Myth Busters – Myth #1: “I Fell On Someone’s Property”

I fell on someone’s property, therefore, the owner of the property by law is automatically responsible for all of my injuries and damages Wrong. The real answer as to whether an owner of property or their insurance company will be held accountable for injuries you sustained in a fall on the owner’s property is, it depends. It depends on whether a good argument can be made that a jury would find that the owner was negligent—that he or she failed to exercise reasonable care in inspecting or maintaining the property giving rise to an unsafe condition that was a cause of your fall—and that your own fault in failing to take steps for your own safety to avoid falling—was not greater than any fault on the part of the owner. Legal myth origins How the myth got started among non-lawyers that some “no-fault” principle applies when they fall on property owned by another is unclear. It may be that people have confused the liability of a property owner for negligence (fault on the part of the owner) with med-pay coverage that some, but not all, owners may have available under their property liability insurance policy. Med-pay coverage is a “no-fault” coverage. All you have to do is show that you were injured on the owner’s property and that required medical treatment was related to those injuries in order to be entitled to med-pay coverage. You do not have to show that the owner did anything wrong to cause your injury to access that coverage. However, med-pay coverage, if it exists at all under a property insurance policy, is usually very...

♦ Since I Got Hurt At Work, Am I Stuck With Workers’ Compensation?

The answer to this question is that it depends, but generally yes. Worker’s compensation is your only option to sue your employer for personal injuries that occur on the job. This includes both physical and mental injuries from work – those that happen in a single accident, or that happen over a whole career. Thus everything from a knee sprain from a fall on the job to back pain from years of working with heavy products, even unusually high anxiety caused by work, can be a worker’s compensation claim. Over a hundred years ago, the Wisconsin Legislature decided that because work injuries are an extremely common thing in the everyday workplace, a system separate from the courts would be a better alternative than having employees always suing their employers. No jury trials, and to the extent possible, no lawyers. That system was called workmen’s compensation, and nowadays, it has been renamed to a more correct label of worker’s compensation. Because the purpose of this system is, in part, to avoid countless lawsuits of employee vs. employer, the courts have ruled that worker’s compensation has been the only option to pursue if you get hurt at work. With this same goal of efficiency in mind, the Legislature also decided that it generally would not matter whose fault it was when an injury happens at work. So long as work contributed to the cause and they did not hurt themselves intentionally, workers should be paid compensation to treat their injuries and some of their wage loss for missing work. The law requires that employers have enough insurance or funds on hand...

♦ Workers’ Compensation – Hurt on the Job? Now What?

The short and simple answer is that you should tell your supervisor how you got hurt and then go see your doctor, or if it cannot wait, go to the nearest urgent care or hospital. Tell the doctor what happened when you get there. The employer should be filling out a report of injury, not the worker. If you are hurt, your focus is on getting better and getting back to work, not filling out the employer’s injury report form. The State of Wisconsin provides a standard form for all employers to report a work injury, which is available here from the Department of Workforce Development’s website. If your boss does not have the form, print one out and give him or her a copy. It cannot be used as evidence against them, so there is no good reason not to fill one out. If your injury is severe enough that you miss 3 workdays in a row, your employer is not only required to fill out a report, but then has to submit that report to its insurance company within one week or to the State within two weeks. Once the insurance company is involved, you may be asked, but you are NOT required to give a recorded statement. It is a common misunderstanding of many injured Wisconsin workers that a recorded statement is a necessary part of the process or reporting a work injury; it is not. All too often this statement will work against the injured worker in the long run, usually before the worker has had the chance to talk to an attorney. A worker’s compensation...

About Jastroch & LaBarge…

Our team of Wisconsin attorneys handles a variety of practice areas involving car accidents, personal injuries, business and civil litigation, and divorce or family law. We have lawyers to work with you on your real estate and estate planning or probate needs as well as in the social security disability and worker’s compensation law areas. Our multi-practice Waukesha law firm also has attorneys experienced in the Wisconsin lemon law, motorcycle injury, dog bites, and wrongful death and product liability lawsuits.

WAUKESHA

640 West Moreland Boulevard

Waukesha, WI  53188

262.547.2611 |  Directions

jaslaw.com

Phone: 262.547.2611 | Toll Free: 877.635.6220 | jaslaw.com

FAQ  |  Website Disclaimer