Unique Concerns For Older Drivers Involved in an Auto Accident
The sad reality is that older drivers (age 65 or greater) have the second highest rates of fatal crashes than any other group of drivers, second only to young drivers (age 18 and under). This results in 18% of all Americans fatalities on the road being older drivers.
Driving accidents as a whole have continued to rise despite improvements in safety, in part as a result of the advent and prevalence of smart-phones. Today motorist, particularly young motorists, are often distracted from the road and choose to text, read or post on social media; all while in command of a vehicle that likely weighs a ton and will be traveling at least 30-40 MPH.
Chances are if you are reading this article you have been in an auto accident or will unfortunately be in one at some time in your lifetime. Auto accidents for persons over 65 present unique considerations that are distinct from those that other drivers typically encounter. This article will touch on some of the general concerns of older drivers, particularly when injured in an auto accident.
Prevention is the first step to avoid auto accidents; older drivers (and really all drivers) should always drive defensively. Older motorists have the benefit of years of wisdom on the road but also bear the burden that their driving abilities may naturally diminish over the years. As one reaches his/her “golden years” it is important to always ensure he/she possess the ability to operate their vehicle in a manner that meets the minimum standards of sight, hearing and endurance necessary to drive safely. To this end, in Kansas, older drivers are required to renew their driver’s license every 4 years after reaching the age of 65, as opposed to every 6 years for other drivers. The logic being a smaller time interval between renewals allows for greater scrutiny of a driver’s continued safe operation of his/her vehicle.
But what do you do if you were injured in an auto accident? Here are the basics. First, every auto policy in the State of Kansas carries Personal Injury Protection (PIP) benefits. This covers not only the driver but also passengers. PIP benefits are paid out regardless of fault and utilizing these benefits does not affect your insurance rates. So regardless of whose fault the accident was, if you were injured in an auto accident you automatically have at your disposal a minimum of the following benefits: (1) $4500 in medical care coverage, (2) $900 a month in lost wages, and (3) $25 per day for essential services (personal assistance to perform daily tasks). This is not an exhaustive list of PIP benefits, but these are the most commonly utilized benefits; and remember these are the “minimums” and your policy may provide for even greater coverage amounts.
These moneys are paid by your auto insurance first and if you don’t have auto insurance these benefits may be provided from the other driver’s insurance. The PIP benefits for medical care will pay before any Medicare, Medicaid or other private insurance should pay anything.
How do you resolve a claim if you were injured in an auto accident? At the outset, it is necessary to understand that Kansas is what is called a “modified comparative fault” state. Meaning that for a driver to be “at-fault” (i.e. liable or financially responsible for injury of another from the auto accident) the driver must be at least 51% at-fault; furthermore, the percentage of fault is applied to any judgment obtained in court. For example, if it was determined that in a 2 car accident, Driver 1 was 80% at-fault and Driver 2 was 20% at-fault and a verdict was obtained for $100,000.00, then the Driver 1 (the Defendant) would be obligated to pay Driver 2 (the Plaintiff) $80,000.00. So, in reaching a settlement with the insurance company on a claim for an auto injury the percentage of fault attributable to both sides is considered, although it is often over-stated by the auto insurance adjuster.
It is also important to know that if you make a claim, the at-fault driver will in no way be personally liable for a settlement or judgment, except for possibly having higher insurance rates in the future. So, while it is admirable to have a concern about the financial impact on the other driver, as long as the auto was insured at the time of the accident any settlement will result in the at-fault party paying nothing out of pocket and having no impact on his/her personal finances.
In Kansas the minimum limits for bodily injury coverage is $25,000.00; again, there are the minimums and the policy may be higher. That may sound like a lot but it is necessary to know that any of the aforementioned PIP benefits paid on one’s behalf are required by law to be paid back out of any settlement. Again, for example, if an injured person received $10,000.00 in PIP benefits and settled their injury case for $25,000.00, then the actual settlement amount going to the injured person would be $15,000.00 because the PIP insurance carrier is entitled to the first $10,000.00 as reimbursement.
Also, if the at-fault driver has no insurance or the coverage is insufficient to fully compensate the injured person, one can obtain additional moneys from their own auto policy’s “Under-insured motorist” and “Un-Insured Motorist” coverage, more commonly called UM/UIM.
Unique to older motorists is the likely presence of Medicare, Medicaid and/or an additional supplemental insurance plans that may have also paid for your care from an auto accident injury. Similar to PIP, under federal law, Medicare and Medicaid, and most private insurance plans are required to be reimbursed from any settlement proceeds that covered medical treatment that was attributable to the accident. Moreover, if you are on Medicare, there may be a need to place portions of the settlement into a “Medicare Set-Aside” if future treatment for injuries from the accident is anticipated. Failure to reimburse these federal programs from a settlement will result in you or your estate being liable for these moneys, in addition to stiff penalties.
So one more time, using the above example. You settle your injury case for $25,000.00, and have $10,000 in PIP benefits, and Medicare paid $5,000.00 for additional injury treatment. Here, the injured party would receive $10,000.00 of the $25,000.00 because PIP ($10,000) and Medicare ($5,000) must be reimbursed.
As you can see, resolving an auto claim after age 65 presents a number of issues and this brief article only provided a general understanding of benefits available in Kansas and should not serve as a substitute for legal advice. To gain thorough information for your specific situation I strongly advise anyone injured to contact a local and knowledgeable personal injury attorney as soon as possible to determine their legal rights and options. My firm, Neustrom & Associates in Salina, Kansas serves all of North Central Kansas and would be happy to answer any questions you may have regarding this article or a possible injury claim. In closing, drive safe and put down the phones whenever you are operating your vehicle for the safety of yourself and others.
Nathan T. Mattison, Esq.