Herrling Clark Law Firm Ltd.
When Your Future is at Stake

Auto Accidents Happen: Do You Know How You Would Respond?

It is difficult to know how to react to an accident, whether you are the injured person or the one responsible for the injury. Once an accident happens, though, everyone involved should act ethically and efficiently, but unfortunately this does not always happen. One example of poor accident response is a case currently pending in the Wisconsin Supreme Court about an insurance company denying uninsured motorist coverage to a boy injured in a hit and run accident. This scenario offers lessons in responding to auto accidents in ways that ensure the injured can receive help with medical and other costs in Wisconsin.

Facts of the Case

In 2005, Zachary Zarder, then a child, was hit by a car while riding his bicycle in the street. The driver, two other passengers in the car, and several witnesses stopped to see if he was hurt. He told them he was not hurt. The car's driver and occupants left without providing any identification or insurance information and the witnesses walked away without further assistance. Shortly after the accident, Zachary developed pain. After seeking medical attention, doctors advised Zachary that he had multiple fractures and needed surgery.

The medical costs that health insurance would not cover became overwhelming for Zachary's parents, so they applied for reimbursement under their auto insurance policy's uninsured motorist coverage. The insurer, Acuity, denied their hit and run claim because the unidentified driver had stopped to talk to Zachary before driving away. The Zarders then sued Acuity for coverage.

Major Issues

Under a Wisconsin law known as the Omnibus Statute, insurance companies are required to provide uninsured motorist coverage to its insured. This coverage applies to those injured in accidents with uninsured drivers or in hit and runs. However, Acuity claimed that when a driver stops to check on a victim, even if unidentified, the run element of a hit and run is not satisfied. Using this technicality, it refused to cover the medical costs arising from Zachary's hit and run accident. Since the case was filed, two Wisconsin courts have issued opinions agreeing that Zachary should be covered under his parent's uninsured motorist policy, but they offered different reasons for arriving at this decision.

In Zarder v. Humana Ins. Co. (Zarder), the Waukesha Circuit Court agreed with Acuity that there was no run in the hit and run accident. However, they reasoned that Zachary should be covered under the Omnibus Statute, as protecting people, especially minors, injured in accidents by unidentified drivers is the statute's purpose. The Court of Appeals disagreed with Acuity and the circuit court, to an extent, arguing that the policy did not define the run element to specifically mean a driver fleeing from an accident without stopping. Instead, the court stated that when a driver leaves the scene without providing any identification, even if the driver stops to check on the victim, this is also a hit and run. The Wisconsin Supreme Court will definitively decide the issues in Zarder in February of this year.

Lessons Learned

No one knows ahead of time that he or she will be involved in a car accident, either as a victim or as a driver. Ideally, drivers should react ethically and take responsibility for their part in car accidents. Even if they do not, everyone on the road can be prepared for how to best react to an accident if one does occur. First, be sure to calm down. Once you are calm, make sure that you and those around you are safe from further injury and then try to follow these steps as much as possible:

  • Contact the appropriate law enforcement or emergency response professionals if there are serious injuries or if extensive damage exists.
  • Exchange personal and auto insurance information with any drivers involved in the accident, or any witnesses still around the scene, even if there is not apparent damage or injury.
  • Document crash details or photograph the accident scene, including vehicle damage, as thoroughly as you can. You many not remember some information when you need it later.
  • Report the accident to the local law enforcement agency, if they are not on the scene due to lack of injury or major vehicle damage.
  • Check in with your auto insurance company as quickly as possible. They may be able to offer good advice about handling the accident when you most need it.

The Zarder case is a keen example of poor accident response by all involved. It is difficult to know if the unidentified driver would have stopped or even offered personal information if Zachary was identifiably injured at the time of the accident. Regardless, as victims or witnesses of car accidents, people should always try to gather the information of all vehicles and drivers, even though injuries may not be immediately apparent. Also, victims of car accidents, especially minors, should be given immediate medical attention.

Moving Forward

In an ideal world, the focus of insurance companies and state laws should be on healing the injured, because any one of us could be the victim of a car accident some day. However, Zarder demonstrates yet another instance where an insurance company tried to wiggle out of covering the victim of an automobile accident due to a technicality. Since Zachary, a child, did not know of his injuries or to get the driver's information at the time of his accident, the only way his parent's could get help to pay for his recovery was under their uninsured motorist coverage.

Learn from this scenario and do not jeopardize your right to obtain adequate compensation for injuries from a car accident, either from your auto insurance company or from a third party. Make a timely call to a local attorney with experience in personal injury and car accidents following a crash in which you or your loved one is a victim. With the support of a lawyer's advocacy, you will get the help you deserve in order to move forward.

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  • Wisconsin Association for Justice
  • State Bar of Wisconsin
  • American Bar Association
  • American Association for Justice
Herrling Clark Law Firm Ltd. is located in Appleton, Wisconsin, and serves clients in Fox Valley, Outagamie County, Brown County, Door County, Kewaunee County, Manitowoc County, Sheboygan County, Fond du Lac County, Calumet County, Winnebago County, including Appleton, New London, Clintonville, Neenah, Oshkosh, DePere, Fond du Lac, Sheboygan, Manitowoc, Kewaunee, Sturgeon Bay, Marinette, Neenah, Chilton, Menasha, Shawano, Waupaca, Wausau, and Green Bay, Wisconsin.
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