Pedestrian accidents frequently cause extremely serious or fatal injuries. Personal injury cases from these accidents are complex, for a number of reasons. A pedestrian fatality may give rise to a wrongful death claim by family members, as well as a survival action, under Kansas law.
Insurance claims for compensation in a pedestrian accident often are more complicated than claims for other types of motor vehicle accidents. An injured pedestrian may have claims under more than one insurance policy and under more than one type of coverage.
Medical expenses and other losses may be covered under Personal Injury Protection (PIP) in the injured person’s own policy or the policy of the driver who struck the pedestrian (if the pedestrian does not have their own PIP). In some circumstances, Uninsured Motorist / Underinsured Motorist (UM / UIM) coverage under multiple policies also may be available. Finally, if another person’s negligence caused the accident, the injured pedestrian may have a claim under the at-fault person’s liability coverage.
Kansas has a no-fault insurance system for motor vehicle accidents, which means an injured person’s own insurance pays for initial medical expenses and lost wages regardless of who was at fault for the accident. To hold the at-fault party liable for damages, injuries must meet certain thresholds or involve specific types of injuries.
To complicate matters even more, Kansas has a comparative negligence standard that applies to personal injury claims. If the victim’s own negligence contributed to the accident, their negligence is compared to the negligence of the other at-fault party. If the victim was 50% or more at fault, they cannot recover any compensation from the other party. If it is less than 50%, the amount of compensation is reduced in proportion to their own negligence.
The rules that apply to liability and insurance claims in a pedestrian accident make it imperative for an injured pedestrian to get assistance from an injury lawyer as soon as possible after an accident. Insurance companies with potential liability will do everything possible to minimize or deny claims. The best strategy is to count on your attorney to handle all contact with the insurance companies.
If you lose a loved one in a pedestrian accident caused by negligent or reckless conduct of another person, certain family members may be able to file a wrongful death lawsuit against the person who was at fault. A Kansas statute governs wrongful death claims, which are complex and require assistance from an experienced injury lawyer.
KS Stat § 60-1901(a) creates a civil cause of action as follows:
If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had such person lived, in accordance with the provisions of this article, against the wrongdoer, or such wrongdoer's personal representative if such wrongdoer is deceased.
KS Stat § 60-1902 provides that the action may be commenced by “any one of the heirs at law of the deceased who has sustained a loss because of the death.” Heirs at law are those entitled to inherit under Kansas laws of intestate succession. Any heir who suffered a loss on account of the death may intervene in the action. The lawsuit benefits all heirs who suffered a loss, whether or not individual heirs join the lawsuit.
Generally, one of the following family members files the wrongful death action: surviving spouse, children, parents (if no spouse or children), brothers or sisters, or parents of a deceased young child. Recovery by an heir in a wrongful death case depends on the ability to show a loss, as well as the relationship to the decedent. Each heir must show their own specific loss.
The wrongful death statute allows recovery of specific types of damages in KS Stat § 60-1904:
(1) Mental anguish, suffering or bereavement;
(2) Loss of society, companionship, comfort or protection;
(3) Loss of marital care, attention, advice or counsel;
(4) Loss of filial care or attention;
(5) Loss of parental care, training, guidance or education; and
(6) Reasonable funeral expenses for the deceased.
The law also permits other types of damages. In addition, if no probate administration for the estate has been filed, an heir who paid for or became liable for expenses for care of the decedent resulting from the wrongful act can recover those expenses.
After the total amount of compensation is determined, the judge apportions the total recovery, after allowing for costs and plaintiffs’ attorney’s fees, in proportion to each heir’s sustained loss. All heirs known to have sustained a loss share in the recovery.
A second type of Kansas civil action, called a survival action, also may arise as the result of a wrongful death. If probate administration of the decedent’s estate has commenced, the personal representative of the estate may file an action for losses suffered by the decedent prior to death. A survival action is completely separate for any wrongful death action.
Assistance from a Kansas injury attorney is absolutely essential in any pedestrian accident claim or wrongful death lawsuit. Our personal injury lawyers at Sloan Law Firm have the right experience and knowledge to help you and your family handle insurance claims and wrongful death lawsuits arising from a Kansas pedestrian accident.
From our offices in Topeka and Lawrence, our lawyers assist clients throughout the state. We invite you to contact us by calling (785) 357-6311 or using our online contact form.
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