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Mike Schneider
Mike Schneider
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Hit-And-Run Victim, Lacey, Will Need a Good Attorney

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Lacey McDaniel was on the job as a road construction flagger earlier this week when she was seriously injured by a hit-and-run driver. She is lucky to be alive. Authorities have since found and charged Joshua Vialpando, 32 with first degree assault, driving while license suspended, and leaving the scene. Because Lacey’s fact pattern raises more issues than a law school final examination question, she’ll likely need a good attorney, and should hire one soon.

Because Lacey was “on the job” when she got hurt, worker’s compensation insurance carrier by her employer will pay her medical bills and pay her some money for lost time on the job. It will or should pay for any degree of “permanent partial” or “permanent total” disability she is found to have, but this won’t be a cake walk. Problems and issues include:

a. worker’s compensation carriers often refuse to pay, or “controvert,” claims, whether it is fair to do so or not;

b. worker’s compensation attorneys are hard to find, underpaid, and overworked;

c. the worker’s compensation carrier gets paid back from any claim Lacey makes against Vialpando, even though Lacey and her attorney do all the work and take all the risk. There are important limitations on this subrogation right, and Lacey will need a good attorney to advocate them;

d. Lacey’s employer/worker’s comp insurance carrier take her right to sue Vialpando by operation of law if she doesn’t sue him within one year of the injury; and

e. whatever Lacey gets from the worker’s comp system, it won’t be enough to break her even for the losses and harms she has, and will, suffer.

If Vialpando was insured, which is doubtful, his insurance limits will not likely be enough to cover the harm he caused Lacey. If Lacey owned an insured vehicle, even though she wasn’t in it, and/or if she lived with a “resident relative” who did, she may be able to make uninsured or underinsured motorist claims against that coverage. But if she doesn’t take the right steps to preserve her rights during the process of any settlement with Vialpando, any such claim may be denied. Again, she’ll need good professional help to navigate the insurance minefield.