Paying Back Your Health Insurer – A Necessary Evil

If your health insurance company paid for medical bills stemming from your personal injury claim, it will want to be paid back after the claim is settled (or you get paid from a judgment after trial). The same is true for Medicare and Medicaid. Although this right to reimbursement should in theory prevent the plaintiff from receiving a windfall (recovering money for medical expenses his insurer, and not he, incurred), in practice it can often result in the personal injury plaintiff not being fully compensated for his injuries. Expect some haggling over this issue with your health insurer when your lawsuit concludes.

Why Should My Health Insurer Get Any of My Settlement Money?

Simply put, your health insurer will always include language in its insurance contract which gives it a right to be reimbursed if you are injured by a defendant and recover money damages against that defendant. Usually, this will be in a specific section of the insurance contract clearly marked “right to reimbursement” or “subrogation.” Medicare and Medicaid get reimbursed according to federal and state statutes. It does make sense that the defendant, and not your health insurer, should have to pay for medical bills caused by his negligence. However, problems will frequently arise when you don’t recover enough money to both fairly compensate you and reimburse your health insurer.

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What Happens if I Settle for Less Than the Full Value of My Injuries?

Most lawsuits do not result in a plaintiff getting what he would consider the “full value” of his injuries. Why? Frequently, a lawsuit will settle for the defendant’s insurance policy limits, which may not be enough to fully compensate you. There could be issues of comparative negligence (you are partly at fault) which result in your damages being reduced by the percentage of your own fault. You could simply get screwed by a bad jury that doesn’t award you damages for all of your injuries (they may think some injuries are unrelated to the accident) or shortchanges you in some other way.

When you recover less than the full amount of your damages, you are not “made whole.” So why should your health insurer get reimbursed one hundred percent when you are getting only pennies on the dollar? Well, it shouldn’t. Enter the “make whole” doctrine.

The “Make Whole Doctrine”

The make whole doctrine is a common law (judge-made law, not a statute) rule of thumb that states that a health insurer should be reimbursed only if the plaintiff has been “made whole” by the settlement/judgment, and only to the extent that the settlement/judgment exceeds the “make whole” amount. So, for example, if you would be made whole by $80,000.00 (excluding the medical bills paid for by your insurer), you would only have to pay back your health insurer if you recovered more than $80,000.00, and only to the extent that your recovery exceeds $80,000.00. Unfortunately, this “make whole” rule has not been adopted in all states, and in the states where it is adopted, there are exceptions to it.

If your health insurance is governed by the federal law known as ERISA, federal “make whole” rules will apply. How do you know if you have an ERISA health insurance plan? For one, it will say so in the insurance contract. Also, if you get your health insurance through an employer-based plan (as most people do) and the employer who provides the plan isn’t a government or church, odds are your plan is governed by ERISA. When in doubt, ask your lawyer. So what are the federal “make whole” rules? Unfortunately, they vary among the 12 geographically assigned federal circuits. Some hold that the “make whole” doctrine is applicable in ERISA cases; some say it is not. Among those that adopt the “make whole” doctrine, they give the insurance company the option to opt out of this rule by including a provision in their insurance policies expressly stating that they will be reimbursed regardless of whether the plaintiff is made whole. Most modern health insurance policies will include this provision, so expect that you will have to pay your health insurer back (at least in part) under most circumstances.

State laws will control whether the make-whole doctrine applies to health insurance policies purchased privately (not through an employer). Covering every state is beyond the scope of this article, so ask your lawyer what the rules are for your state.

How Much Do I Have to Pay Back?

Most of the time, your lawyer can negotiate a fair reimbursement amount with your health insurer, even when the make whole doctrine doesn’t apply to you. Usually, your attorney will start the negotiation by pointing out that you are not recovering all of the settlement money — a healthy percentage of that will go towards attorney’s fees. Therefore, your insurer should reduce the amount of its reimbursement request (its “lien”) by at least the same percentage as your attorney’s fees (otherwise, it would be getting your attorney’s services for free). For example, if your insurer paid $40,000.00 in medical bills and your attorney’s fees are 40% of your recovery, the insurer should reduce its lien to $24,000.00 ($40,000.00 – 40%). Medicare will automatically credit you for this.

Your attorney will often haggle with whatever other ammo he has available to reduce the amount further from there. If you took a low settlement because of the defendant’s low policy limits, your attorney can point out the amount you recovered versus the amount your case was worth. For example, he could argue that you had to take $50,000.00 to settle a case that was worth $200,000.00. Therefore, because you only got 1/4th of the value of the case, the insurer should not recover more than 1/4th the value of its lien. Clearly, the attorney can mix and match any number of arguments to try to reduce the amount of the health insurer’s lien. Whether he is successful depends largely on the health insurer — some are more reasonable than others.

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Interpleader — The Atomic Bomb of Negotiation Tactics

When all else fails and your lawyer can not reach a reasonable settlement of your health insurance lien, he can threaten to deposit the funds with the court (a procedure called interpleader) and let a judge decide how much the health insurer gets. I call this the atomic bomb of negotiating tactics because neither side wants this to happen and both sides will be damaged if it does. Interpleading the funds will make you unhappy because it will tie your money up for quite some time, just at the point you were going to get paid. It will make your lawyer unhappy because he will now have to do a lot of extra work that will not generate any more income for him. It will make the insurer unhappy because now it must pay a lawyer to pursue the money in the interpleader case. Of course, everyone will be nervous because you’ve now put the ultimate decision of how the money will be split up in the hands of a judge. Interpleader should only be used when your insurer is being completely unreasonable about how much it should get out of your settlement. Usually, the threat of it is enough to force the insurer to be more reasonable.

Expect to Pay Something Back

It is extremely rare for a health insurer to waive reimbursement entirely. Expect to have to pay something back. Make sure that your lawyer knows about any medical treatment you received since the accident which is unrelated, as often insurance companies will try to recover for all the medical bills they paid during the relevant time frame. Ultimately, dealing with your health insurer is like negotiating a second settlement entirely, so expect it to take some time. You don’t want to rush your lawyer at this point. Because his attorney’s fees are almost always taken out before the health insurer gets paid, every dollar he saves you by negotiating with your health insurer is another dollar in your pocket.

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290 Responses to Paying Back Your Health Insurer – A Necessary Evil

  1. Zebra Bus says:

    I am going through this exact situation right now – and found this site extremely helpful (& educational, regarding the legal system).

    Thanks!

  2. Beverly says:

    After the accident, the other party’s insurance paid to have my car repaired which was $6,000 and also paid for a month of rental car. But they want to settle for only $6,500 and my medical bills are almost $7,000. I did not hire an attorney because I was told they accepted libality and would pay for medical bill, pain and suffering. Now what do I do? thanks very much

    • fl_litig8r says:

      If the total medical bills that you owe are $7,000.00 (including any health insurance liens), you really shouldn’t take anything less than that for the general liability portion of your claim. Are you sure that their $6,500.00 offer isn’t just for the property damage and rental car? Often, insurers will have different adjusters handle the property damage and general liability settlements. Are you sure you’re not dealing with just the property damage adjuster?

      Without knowing what state you’re in, I can’t say if you would be entitled to pain and suffering. For example, Florida is a “no-fault” state that only allows pain and suffering damages in cases where the person has suffered a “permanent injury.”

      If $6,500.00 is in fact their top offer for general liability (have you tried to negotiate them up from this?) you definitely need to consult a local personal injury lawyer. Your initial consult should be free, as almost all PI lawyers work on a contingent fee basis. If you don’t like what they have to say after the consult, nothing says you have to hire them. If you hire a lawyer, he or she may be able to get your medical bills reduced as part of their services. You could try this yourself, as well, but a lawyer would probably have more success.

  3. Thomas says:

    This idea of subrogation is so confusing. I’m in Missouri and am going through a personal injury situation. We were informed that there is no subrogation in Missouri. It keeps worrying me though. We are almost 2 years removed from the accident, and I haven’t heard any from our health insurance provider for over a year. I believe our last contact was when they had to confirm the state that the accident took place in. Several times, we had been told that Missouri is a “double dip” or “triple dip” state which we took to mean that subrogation wasn’t an issue here. Is that correct? Thanks so much. This site is awesome.

    • fl_litig8r says:

      One of the sources of your confusion is probably the conflicts between state and federal law on this issue. While it is true that Missouri state law totally disallows subrogation, if your health insurance is through your employer it is most likely subject to federal ERISA law, which pre-empts state law. Usually only government and church employers are exempt from ERISA. ERISA law allows subrogation, as in the somewhat famous case out of Missouri involving Wal-Mart and a plaintiff named Debby Shank. (That plan was self-insured if I recall correctly, but the ERISA pre-emption of state anti-subrogation laws will apply to insurance-based plans as well).

      Even if you have an ERISA-governed health insurance policy, the policy must contain language disavowing the “make whole doctrine” to avoid being subject to it. Most modern policies will have this language, as insurance companies are quick to change policy language once the courts tell them what they need to do to screw their insureds.

      If you have a lawyer on your case, be sure to notify him about your health insurer paying accident-related bills so he can prepare for a subro claim. If you don’t have a lawyer, you are playing with fire if you settle your case without first checking with your health insurer to see if it intends to seek reimbursement (and for how much).

      Thanks for the kind words about the site. Comments are always appreciated.

      • Thomas says:

        Thanks for the response. That helps. We do have a lawyer, but haven’t really gotten a clear answer from him. How does the health insurer know when a settlement has been reached? I guess I find it odd that we haven’t heard from them about the case or the payments they made for over a year.

        • fl_litig8r says:

          Normally health insurers find out about lawsuits through requests for their billing information and direct contact from the plaintiff’s attorney trying to resolve the lien. They can find out through other means, such as when they are auditing their files. Ethics duties vary somewhat from state to state, but in Florida I’d get in trouble if I disbursed settlement money without paying a lien of which I was aware.

          I wouldn’t gamble on the insurer never finding out. You will still be on the hook for the insurer’s lien even if your settlement is disbursed without paying them. They can sue you to get their money back. The best practice is to have your lawyer negotiate the lien down as much as possible.

          • melissa says:

            I was in a car accident in October of 2011. I had really bad neck and back pain and went to therapy for a couple months which didn’t help. I finally went to a spinal specialist who said I had a herniated disc and a pars defect which has slipped due to the accident. I have had multiple conversations with the bi adjuster and she said she doesn’t think they will deny the claim as their insured was completely at fault. I did more surgery and injections which have not helped. finally i am scheduled for surgery. I spoke to the adjuster today and asked her if we could settle for the policy limits of $250k since my medical bills will most likely be at least 125K with the surgery. As of now i have $30k in medical bills. $25k have been paid by my medpay. I am assuming i have to pay that back. I live in IL. here is my question. If I settle with the 3rd party insurance do i have to pay my health insurance for future medical bills? Meaning if I can get them to agree to settlement before surgery would I have to repay the health insurance for the surgery? there is no lien to the bi carrier as of now. Everything has been sent to the medpay carrier and is in the process of being sent to the health insurance. I was going to try and settle before the surgery for 2 reasons. One if I don’t have to pay them back for it that would be great. and 2 even if i do have to pay them back, i need some money to help with house hold things after surgery. I am having a spinal fusion with a discectomy. I have been treating since the accident and have a long road ahead.

          • fl_litig8r says:

            Illinois does allow subrogation of med pay claims, as long as your policy requires it (I’d imagine all of them do by now), so you will have to pay back your auto insurer. As to future medical care received under private health insurance, I don’t know of any lawyers that set aside settlement funds to pay for future claims, except as to Medicare, which specifically requires it by law.

            There is a danger, however, that your health insurer will deny payment for future accident-related care under the grounds that the tortfeasor was primarily responsible for those bills and you should have to pay them out of your settlement money. So, the safest thing to do would be to hold onto that money until after you receive your care to see if your health insurer will pay. If not, you may be on the hook for the bill personally, so you’ll need that money available.

            From a reimbursement standpoint, it would be better for you to settle prior to your surgery. If you settle afterwards, you’ll definitely owe the health insurer. If you settle beforehand, the health insurer only might deny payment.

            The downside of this strategy is that you are settling your case before you reach maximum medical improvement. If your treatment does not go as well as planned, you may find that your settlement was inadequate.

        • D says:

          what if my medical was paid by my no fault policy when my accident happened in a at fault state? my insurer says they cannot collect on what they paid even if i win settlement? what do i say if asked by the at faults insurer about my medical bills? their is no liens, all bills are paid so far. I was told i can still include those bills in my settlement amount even though they are being paid. I have no fault insurance and the person who hit me does not have no fault, as accident happened in a ‘at fault state”

          • fl_litig8r says:

            Your PIP insurer’s inability to recover the amounts paid for your medical care are governed by your state’s insurance laws, as that is where the contract was issued. That doesn’t change because your accident occurred in another state.

            Whether you can recover these medical bills as part of your liability claim against the at-fault driver depends on the state law where the accident occurred. Specifically, you need to know the “collateral source rule” of that state. This is usually governed by a statute which says whether you can claim, as part of your liability claim, medical payments made by collateral sources (such as your PIP insurer) that do not have a right of subrogation or reimbursement. Some states specifically allow you to double-dip on your medical bill recovery.

            If I were you, I’d include the bills in the claim and let the liability insurer tell you if they are not recoverable under that state’s collateral source rule. Don’t lie if they ask whether the bills were paid by a third party.

  4. Grant says:

    I was in an accident Aug 2, 2011. My medical bills have passed 10,000, I do have 5,000 in Med pay. I was going to do it myself but decided to hire an attorney. How long should it take him to find out policy limits? I need sugery thats 43,000. If the at fault only has 25k policy there is no point for me to drag it out and I should be able to collect that and my underinsured fairly quick so I can get fixed. My insurance does not cover my Disc replacement, they will only pay for a fusion. I am in the guard and a fusion will end up in a discharge and I have 15 years total service and dont want to lose that.

    • fl_litig8r says:

      How long it will take will vary from state to state. Some states don’t even require disclosure of liability insurance information. In Florida, where I practice, an insurer has 30 days from receipt of a written request for policy info to provide it. You could just ask your lawyer how long a liability insurer has to respond to his request for policy info as a backdoor way of checking his progress.

  5. Grant says:

    I just found out that I will need surgery on my neck from the auto accident from Aug 2, 2011. They are going to do the Neck and back the same day. The cost of both surgeries is going to be close to 100k to go along with my med bills of 10-12k already. If his limits are 25k and my underinsured is 50k would I be left with nothing?

    • fl_litig8r says:

      If your health insurance isn’t paying for your surgery, are you paying for this up front out of pocket? Is the medical provider performing the surgery due to a letter of protection (your attorney promises to pay them from your settlement)? Either way, you may wind up recovering nothing for yourself if the total liability coverage is less than the medical bills. Of course, it’s not really recovering nothing as you are getting (at least part of) the cost of the surgery. Don’t forget that your lawyer will deduct his fee before these medical bills get paid, so you could actually be left owing money to the medical providers.

      If you were getting treatment that was covered by insurance, I’d be comfortable saying that you would not walk away empty handed. Most insurers are reasonable when it comes to a liability claim worth more than policy limits, and will negotiate so that both of you get something (if they didn’t, you’d have no incentive to sue and get them anything). Medical providers negotiate as well, but I don’t know too many who provide their services knowing in advance that they won’t be fully compensated.

      If the at fault driver is underinsured, the only way to recover enough to pay everyone in full would be if the insurer was stupid enough to not pay policy limits within 30 days of getting a demand for them from your lawyer. Their failure to pay a claim which obviously exceeds their limits would make them liable for a “third party bad faith” lawsuit, which lets you recover all of your damages from them no matter how much they exceed your policy limits.

      You really need to have a talk with your lawyer before you incur the cost of the surgery to see if there’s any chance that it will be paid for and that you will get money personally as well.

  6. Grant says:

    I did, I sent him an email. HE wants me to have the surgeries and see how I recover and all that. To me that is just dragging it out especially if limits are 25,000. I will not sue the person or try to have his pay check docked, hes a father of 4. He has enough from what I gave him and now with the herniated discs in my neck has a open shut case I would think. I understand that I just hired him a couple weeks ago, but I did hand him all my bills, pay stubs, lost wages info, medical documents and a well written demand letter demanding policy limits. Does it sound like he might try to drag this out?

    • fl_litig8r says:

      I don’t see why your lawyer would want to drag this out. Assuming he’s on a contingency fee, he should want this to settle as quickly as you. Taking more time doesn’t make him any more money. Does he understand that your surgery will not be covered by health insurance?

      Unless there’s some medical reason to rush the surgery, I’d wait to find out the tortfeasor’s policy limits before making the decision to get the replacement vs. the the fusion. Ask your attorney how long the insurer has to provide info on policy limits and find out when he sent his request out.

      If you’re really desperate to know, you could contact the tortfeasor directly and ask him what his limits are. It’s only an ex parte communication if your lawyer contacts him or if your lawyer asks you to contact him on your lawyer’s behalf. One party directly contacting the other is not forbidden — it’s just generally not a good idea. Make it clear that you only want the policy limit info and you’re not calling to discuss the case in any other way. If you explain to the guy that you don’t want to sue him personally and you just need this info so you can make an informed medical decision, he may give it to you. Otherwise, you’ll just have to wait until your lawyer gets the info from the insurer (assuming you’re in a state that requires the insurer to provide this info — ask your lawyer).

  7. Grant says:

    I told him my insurance does not cover the surgeries and I would be paying out of pocket. No medical reason to rush but just want it done, the longer I am on restriction the more likely the Air Force will medically discharge me. Thank you for the insight I really appreciate it.

    • Grant says:

      When I hired my lawyer here in Colorado he told me the auto policy for my underinsured was indeed stackable. Today he tells me it is not because the cars are on the same policy which doesnt make sense. I hired him because he told me I was correct about the stacking and now he says it doesnt. I would have handled the case on my own if I knew that. Why would I want someone taking a third of my settlement. Im pretty mad, am I stuck with him? I heard if you fire your lawyer they can still collect the third of the settlement.

      • fl_litig8r says:

        The thing about the UM not stacking because they are on the same policy makes no sense to me, either. In FL, if you have multiple cars on the same policy and select stacked UM, the UM limit for each car on the policy is multiplied by the number of covered cars. You should consult with another Colorado lawyer about the stacking issue. If you have an agent, you could ask him first — or even ask your own insurer.

        As to the fee contract, it’s going to be tough to get out of. In theory, you could use a “mutual mistake” (or possibly fraud) argument to try to get out of it, as I discussed in my article about getting out of a settlement agreement. I think you should really just ask him to let you out of it, since it was his representation about the stacked coverage that made you want to hire him in the first place.

        Of course, all of this could be premature. If it turns out that the tortfeasor has $250,000.00 (or higher) BI limits, the UM may not even be a factor. You could just tell the lawyer that if the tortfeasor has low BI limits you want him to let you out of the contract due to his mistake as to the UM coverage. If you throw in that you think it would be the “only ethical thing for him to do” you may scare him into thinking that you’re contemplating a bar complaint. Even frivolous bar complaints are a nightmare for lawyers to deal with, so he may let you go just to avoid the hassle. I wouldn’t directly threaten a bar complaint, except as a last resort.

  8. Grant says:

    The other insured was only 25k coverage and they are denying the claim because there was only 500 in damage. Well I have a jeep with a full size spare on the back that saved thousands of dollars in damage but totalled the car that hit me. I ended up like i said with a herniated disc in my neck and exacerbated injuries to my back, both need surgery, so my lawyer said only thing left was to file suit. So if it goes to court we can go for more than limits correct? I already have 12000 in med bills, I thought by law they are required to pay those.

    • fl_litig8r says:

      It looks like the defendant’s insurer plans to contest causation (they think that the accident was too minor to cause your injuries). No, they don’t have to pay anything until you prove liability, causation and damages.

      In theory, you can now get more than the policy limits through a third party bad faith lawsuit. You would have to go to trial and receive a judgment for more than the policy limits before you would be able to bring a bad faith lawsuit, so it could take a while. The bad faith claim actually belongs to the defendant (his insurer exposed him to personal liability when it could and should have settled within the policy limits). When you get the excess judgment against the defendant, you enter into an agreement with him whereby he assigns you his right to sue his insurer for bad faith in exchange for you agreeing not to execute the judgment against him personally. It’s a little more complicated than that, but that’s the nutshell version.

  9. Grant says:

    Exactly what I was thinking. It was really stupid for them to deny the claim before seeing any bills or proof of my injuries. Now its going to cost them more than 25k….I understand it taking awhile its just that being in pain sucks. If they are smart and take the advice of a lawyer to settle, I wont take it. Ive decided to let this go the distance. Thanks for your help. Oh btw he did offer to let me out of the contract, but then told me the insured denied the claim so I figure it was best to keep him retained.

  10. Grant says:

    I appreciate all the time you took with giving me advice. Initially I was upset and then like you said it could turn out better than policy limits. The denial letter came in the mail and it stated my injuries were not caused by this because it was a low velocity/low impact accident. Im confident when a jury see’s her completely smashed front end which hit me they will see it was not a low impact. My Jeep having that rear tire saved physical damage to the vehicle but not me inside. Im pretty sure they did did realize the front of her car was more damaged than her rear when hit by their insured and didnt take into consideration the spare tire on the back of the Jeep. Too bad for them because my lawyer is filing suit and I hope someone loses their job for not taking limits on this. Now I have a chance to actually get what I deserve for the pain it causes everyday….Ill let you know how it all turns out….I think they will come back and realize in court they stand to lose a lot more than 25k but if they do I will turn it down….Peace and Thanks again

  11. grant says:

    I thought of another question. Since my claim was denied by the at faults insurance company if they come back and offer limits can I negotiate higher than limits at that point or does it have to go to court? Or can I just say no and continue with the suit? My lawyer says I would be acting in bad faith at that point by not accepting limits. Id like to at least get the cost of my surgery and lost wages covered.

    • fl_litig8r says:

      I don’t know what state you’re in, but in FL if the insurer blows its first opportunity to settle for limits, it’s not bad faith on the plaintiff’s part to refuse a subsequent policy limits offer. I think your lawyer is BS’ing you about that. Ask him to print you off a single case supporting his assertion. I’ve never heard of “bad faith” by a Plaintiff. It simply makes no sense, as how could it be bad faith to not settle for policy limits when you are entitled to get a judgment for the full amount of your damages and enforce the excess amount directly against the defendant?

      You can try to negotiate for higher than policy limits, but most auto insurers won’t consider paying above it without a judgment.

  12. colby_blue says:

    I was in a really bad car accident and because of the extent of my injuries, I had no doubt I would be able to get the max payout from the insurance company (auto). I opted not to hire a lawyer. I recently settled with the auto insurance for the full amount that the policy allows for payout. My health insurance company covered a large portion of the bills and to date has been uncooperative with the auto insurance as far as submitting bills for re-payment. I’ve called as well and gotten nowhere with them. I haven’t signed anything yet, so technically I haven’t accepted the offer and the settlement is not final. My question is this: To what extent am I responsible for re-paying my health insurance company? It’s been almost a year and as I mentioned before they have not made any effort to have these funds reimbursed. Should I take the money and forget about paying back my health insurance, or should I try to contact them again about this? 80% of my settlement amount is the amount of my medical bills.
    thanks

    • fl_litig8r says:

      I don’t see much point in not proceeding with the settlement, unless you think the defendant has the ability to pay beyond the limits of his insurance. Just taking the money and not repaying your health insurer is a dangerous gamble. I’d advise against this, unless you’re willing to risk your health insurer suing you down the road. When dealing with your health insurer, you should ask to speak to someone in its subrogation department. This should get you to the right person. Make sure they send you an itemized statement of bills paid. I’ve seen more than one insurer try to stick unrelated bills into their subro demand.

      As to what responsibility you have to repay the insurer, your first step should be to review your policy for its “subrogation/reimbursement” provisions. If they claim the right to be reimbursed regardless of whether you were made whole, you’ve probably got a fight on your hands. That’s not to say that they won’t negotiate down from full reimbursement, but their bargaining position will be stronger. If they don’t claim this right, you have an argument that you don’t have to repay them anything, since the settlement was for policy limits and did not make you whole.

      Your obligation to repay will also depend on whether your health insurance policy is an ERISA policy. If you got your insurance through your employer, and your employer is not a government entity or church, it’s most likely an ERISA policy, and the federal “make whole” rules from your federal circuit will apply.

      If your policy is not an ERISA policy, state law will apply, so check your state laws to see if they allow subrogation by health insurers. If they don’t, you don’t have to pay the insurer back. If they do, you’ll be subject to your state’s “make whole” rules.

      I don’t know what state you’re in (nor do I want to), so I can’t advise you further. I wouldn’t feel comfortable advising you further anyway, as I’m not your lawyer and I don’t want you to take my advice as such. If you get into a bind where the insurer wants 80% of your settlement back, you might be able to find a PI lawyer who’d be willing to represent you and base his contingency fee on how much he reduces your health insurer’s demand, e.g. he gets them to come down $10,000.00, he takes $3,333.33. This will largely depend on the amount of your health insurance lien. The smaller it is, the less likely it would be worth an attorney’s time to do this on a contingency basis. Your only other alternative would be to hire one on an hourly basis, if he’s willing to do that.

  13. Grant says:

    I touched based with my attorney today and he really isnt happy and thinks I challenge everything he does. As I said before the claims adjuster for the defendent sent a letter saying they would not pay my claim. I mentioned 3rd party bad faith but he still says we have to give them a fair chance to pay the limits. He said they have not had the chance to review my medical records to justify payment. My question is why did the adjuster deny it if he did not have the proof to do so. My lawyer now wants to give another chance to the insurance company after they have the chance to review my records. He says if they have a smart lawyer they will pay limits. If they do not pay this time then he will go for the judgment. I dont understand, I thought a letter from the adjuster denying my claims stating they couldnt have been caused by the accident was enough for us to have the decision made in court….

    • fl_litig8r says:

      Well, I can relate to your lawyer somewhat. Having a client second guess your advice can be annoying. However, in your case I think you’ve had some fair points to raise. I wrote a bad faith article recently which gives a basic overview of the process. Typically, an insurer does not act in bad faith if they have not been given sufficient information about the claim or time to evaluate and accept the offer (30 days is standard).

      If the defendant’s insurer had no information to support the extent of your injuries, such as medical bills or records, your lawyer has a point. Usually these records are included with the initial demand for settlement. Of course, most insurers that receive demands that lack supporting documentation will ask to be given that information. Yours just denied the claim. Whether that would support a bad faith claim is a point upon which lawyers can disagree.

      If the insurer did have the supporting information and denied the claim based on their belief that your injuries were not accident related, they don’t deserve another bite at the apple.

  14. Doug says:

    I recently lost my job and am no longer covered under my employer’s insurance. This is ERISA as I am not a government or church employee. Am I still required to pay back my previous insurer since I am no longer with them? I have yet to settle my personal injury claim.

    • fl_litig8r says:

      As long as your former employer’s health care insurer paid bills related to your accident, you will likely have to pay back at least part of the accident-related expenses it covered. Be sure to check the “make whole” language of your policy to see if they require repayment even if you weren’t made whole. It should be found in a section entitled “Subrogation” or “Reimbursement”. If they don’t specifically state that they are entitled to repayment even if you weren’t made whole, you may not have to pay them back much, if anything (depending on your settlement).

  15. Melinda Fauntroy says:

    I was rear-ended in a motor vehicle accident in May 2009. I had a pre-existing cervical fusion and pre-existing herniated lumbar disc. This accident herniated 2 cervical disc and tore my right rotator cuff. The defendant’s attorney accepted liability but tried to say his client rolled into me and couldn’t have caused my injuries. My bills were over $12,500 so I wrote for their policy limits. They wrote back that policy limits were $250,000. I then gathered all my medical bills and wrote a demand letter requesting that they settle with me for their policy limits and they called me on the phone to offer me $500. Fast forwarding to 2011, I had one of the herniated cervical disc replaced during an operation. However, during the operation, the surgeon did something and my left vocal cord was paralyzed and I could hardly speak above a whisper. I then had to go and have another surgery to fix my vocal cord. My voice is back but it is not the same and my vocal cord post-surgery is only moving at 80%. My doctor has recommended that I have arthroscopic surgery to fix the torn rotator cuff, however, my shoulder is now frozen and he wants to wait until that issue is resolved. Can you please give me some tips on how to get the full policy limit of $250k, or possibly get the insurance company to pay above the policy limits? Also, my health insurance company has not contacted me about repaying them and I do not plan to contact them. Can you tell me if Virginia has subrogation? In any event, if they do I plan to file bankruptcy and put the claim in bankruptcy as I have gone through too much pain and suffering to end up without any money because I lost my job because of this accident.

  16. Melinda Fauntroy says:

    I forgot to mention, the person who hit me did not roll into me. When I took my car for repairs the mechanic showed me a very clear imprint of the other driver’s license plate imprint that was etched in the car. Anyone with common sense knows that just “rolling softly” into the back of someone car will not leave the license plate imprint. Also, if I file suit, does my request to be paid their policy limit of $250k constitute bad faith if a jury awards me more than $250k. Also, I only had $25k bi. I suppose that does not kick in because the other driver had more insurance than I did? Is that correct?

    • fl_litig8r says:

      First, the easy part: your $25k BI insurance plays no part in your case. BI pays for other people’s injuries caused by an accident in which you were at fault. If you have UM insurance, that is the coverage which pays the amount in excess of the defendant’s BI coverage. So, if your case is worth more than $250,000.00, your UM would pay the excess up to your UM limits.

      Now, the hard part. You’ve got a bunch of complicating factors in your case: pre-existing injuries, disputed causation and subsequent potential medical malpractice. Also, your frozen shoulder is not yet resolved, so you don’t know what permanent injuries will remain after you reach MMI. Add to this a defendant with $250,000.00 BI limits whose insurer is only offering you $500.00, and my best advice would be this: hire a lawyer. I know you probably don’t want to pay attorney’s fees (based on you not wanting to pay your health insurer back), but if the defendant’s insurer is only offering $500.00 despite your injuries, I see little hope of you getting them to settle for a reasonable amount on your own. Don’t feel too bad about this. Many times, even lawyers can’t get an insurance adjuster to make a reasonable offer before having to file a lawsuit.

      To get the insurer to be more reasonable, you’re probably going to need (1) testimony from your doctors regarding the relatedness of your injuries to this accident and how your injuries have further disabled you in light of your pre-existing condition and (2) an accident reconstruction expert to dispute the severity of the impact claimed by the defendant. A “life care plan” may also be appropriate to document your future medical needs and wage loss issues. Your own doctors may not want to get involved in your legal issues, which would require the hiring of a non-treating expert physician. These aren’t things I suggest a lay person attempt. If you insist on doing this on your own, at a minimum you’d need your treating doctors to prepare a report linking your injuries to this accident and discussing the cost of your future medical care. They probably won’t do this for free (expect it to cost several hundred dollars at a minimum).

      With respect to your vocal cord injury, I know the law in Florida makes the initial tortfeasor (the driver who hit you) liable for any subsequent injury incurred due to medical treatment (even malpractice) you received for accident-related injuries. I’m not sure if Virginia law is the same on this issue.

      As far as your health insurer goes, I’m almost positive that Virginia state law does not allow subrogation by health insurers. However, if your health insurance is through an ERISA plan, Virginia’s state law will not apply and the federal law regarding subrogation (as described in this article) will apply. If you got your health insurance through an employer, odds are that federal ERISA law is going to apply. I really don’t recommend the “ignore and file bankruptcy, if necessary” approach. A lawyer should be able to get your health insurer to reduce the amount of its lien. You may be able to do this on your own by dealing directly with the insurer’s subrogation department.

      It really sounds like you have some serious injuries (and therefore, damages) as a result of this accident. Given the multiple injuries and surgeries, along with you losing your job, your case may be worth more than the $250,000.00 limits. However, you’ll never get the insurer to pay that if you don’t have a lawyer. Without the threat of a bad faith lawsuit looming, they won’t even think of paying that much. Many insurers won’t pay above their policy limits before an “excess judgment” is entered against them. Obviously, that requires a trial.

      The bottom line is this: it sounds like you have a potentially great lawsuit, but the insurance company’s lowball offer says to me that they have no intention of paying anything realistic as long as you don’t have a lawyer. A persuasive letter isn’t going to change this. You need the very real threat of a lawsuit to get any movement. For that, you really need a lawyer. Go get a free consultation. If you don’t like what the lawyer has to say, don’t hire him. You don’t have anything to lose by just talking to a lawyer. I’m sure there would be plenty who’d be interested in your case.

  17. Melinda Fauntroy says:

    Wow! Thank you for a great response to my question. It was very detailed and helpful. I absolutely love this site.

    If I may, I would like to ask for additional clarity on the BI issue. My understanding, based on your reply, is that if a jury awards me $275k and the defendant has a $250k policy limit than my insurance will pay the additional $25k. Also, Virginia allows stacking so if I had 2 cars on the same policy would my insurance company have to pay $50,000 if I were awarded $300k? I had no idea how complex auto insurance was until I got hit. You also mentioned that I should get a lawyer and that I should have a doctor write a report linking my injuries to the accident as well as the cost of my medical bills. I plan to do both, but I am a proactive person, meaning I want to make sure that both the doctor and lawyer are doing the job they are going to be paid to do. With that said, what specifically should I look for in the doctor’s report keeping in mind that I have an aggravation of pre-existing injuries and I also have new injuries for which I have had 2 surgeries and my doctors suggest 2 additional surgeries on the other herniated disc and the rotator cuff. And, what should I be looking for in the report regarding MMI because it has been 2 years and I still have pain in my neck, back and the shoulder. Further to that, the Ortho doctor went over my cervical and lumbar MRIs with me shortly after the accident and he was trying to show me how to tell the acute “new” injuries from my pre-existing injuries. What should I look for in his report to make sure that he clearly states how the MRIs actually show new injuries?

    Also, are there any red flags I should look for when hiring a personal injury attorney?

    Happy Holidays to you.

    • fl_litig8r says:

      With respect to your UM coverage, your understanding is correct (your UM carrier will be a defendant in your lawsuit). However, you don’t necessarily have stacked UM just because Virginia law allows stacking. You need to make sure you bought “stacked UM”. Your policy declarations page (the one that lists your coverages and all of the individual costs for each) should say this. Florida law allows stacking, but most people don’t buy it. Your lawyer will be able to figure this out pretty quickly if you bring your declarations page to your initial meeting.

      As far as what to look for in a doctor’s report, typically your lawyer will ask the doctor to write this report after you have reached MMI, and it will often come in the form of a letter (it’s not a formal IME report). It should be in relatively plain English, so it’s just a matter of checking it for accuracy. One thing in particular to look for is your “permanent impairment rating,” which will be described as a percentage (e.g. 5%, 10%, etc.). The higher the impairment rating, the more serious your injuries are. There are body-part specific impairment ratings, and these are combined to give a “whole body impairment rating”. It’s not just a matter of adding all the body part ratings — there is a specific methodology for calculating this, most often following the AMA Guides to the Evaluation of Permanent Impairment. Know that this report is just a summary, and your doctor’s full opinions will need to be explored through deposition or trial testimony (usually the defendant will depose your doctor — the only time your own lawyer will depose your doctor is if the doctor won’t be available to go to your trial). Don’t be surprised if the report doesn’t cover every little thing in detail. As long as the doctor makes it clear that you have suffered aggravation of your pre-existing injuries, and generally states the basis for his opinions, this will be sufficient. The minutiae, such as specific findings on your MRIs, which support his opinions, will be covered in his testimony.

      You can still be at MMI even though you have continuing pain and impairment. When you are placed at MMI, it just means that you aren’t expected to see any improvement from further medical care. You can still require pain medication and other treatments to maintain your current level of functioning. If you are expected to have future surgeries, you are not yet at MMI.

      I wish I could give you a sure-fire way to hire a great personal injury lawyer. If I knew how, I’d probably write a short book about it and make a fortune. It’s always best to get a recommendation from someone you trust, preferably another lawyer (one outside the PI field is fine) or a paralegal. Your doctors may be able to point you to someone, but often this is the result of mutual referrals (between the doctor and lawyer) and may not get you to the best lawyer, only the best connected lawyer. Unfortunately, not everyone knows someone who can refer them to a great lawyer.

      As for red flags, you could inquire about the attorney’s current caseload, specifically the number of personal injury cases he is personally handling at the moment. If the attorney is personally handling more than 100 PI cases (excluding workers’ comp. and social security cases, which involve more paralegal time than attorney time), you may want to find someone with more time for your case. You may receive more personalized treatment at a mid-size to smaller firm than at a big firm, mainly because valuable cases at a big firm are a dime a dozen, while at a smaller firm your case may be one of the best ones it will see all year — so they’ll want to keep you happy. A lot of lawyers warn people about having their cases handed off to an associate. I don’t, mainly because I’ve seen plenty of excellent associates and an equal number of “so-so” partners. You’ll want the primary attorney on your case to have at least 5 years of experience, though, given the complexity of the issues in your case. Less experienced lawyers are fine for more straight-forward cases, but your case has a couple of issues that require more real-world litigation experience.

      As a final matter, I must issue a warning about being too “proactive” with your lawyer. Riding herd on your lawyer may sound like a good idea, but if you become a difficult or annoying client, your lawyer might start dodging your calls and may even drop your case entirely. Remember to always be polite and respectful, especially to the paralegals. Nobody likes a back seat driver. Remember that you hired a lawyer for a reason — he knows more than you do about litigation. It’s fine to ask questions and stay informed about your case. It’s another thing to constantly second guess and undermine your lawyer.

      I wish you luck with your case.

  18. Melinda Fauntroy says:

    All of your points are well-taken, and I thank you once again for a great response to all of my questions. It’s nice to know there is someone to talk to.

    If I don’t think of anymore questions this year, I may have some more for you next year!

    Have a safe and prosperous New Year!

    • fl_litig8r says:

      You’re welcome. If you have a Facebook or Google+ account, “like”ing or “+1″ing an article helps the site get more visibility and is greatly appreciated (buttons are the bottom of each article). I hate asking for these things, but so few people use them (as compared to the number of readers) I figured I’d swallow my pride and hit up the regulars — at least they’re free :). If you don’t do the social networking thing, don’t worry about it.

      I hope the new year treats you well (especially with your case).

  19. Danyelle Hanna says:

    Hello. I have been looking at the comments and questions and find the information that is given very informative. I can relate to a lot of them, but I have a question. I live in DC and I was involved in an auto accident almost three years ago. The problem is, I have over $10,000 in medical bills paid by medicare and the insurance company offered a settlement of $5,000. However, medicare is not aware of the accident (I spoke with them about an accident related bill that they keep sending me) and the lawyer I had was very persistent about me taking this settlement. By law, doesn’t medicare have to be notified of a settlement and if I had taken the settlement, would I have been held liable for reimbursing medicare? I cannot find another attorney to help me with this matter.

    • fl_litig8r says:

      If medicare paid accident-related bills, you absolutely need to notify them of a settlement. That being said, they may be willing to accept a substantially reduced payment (or maybe even waive reimbursement entirely) if there are liability issues (questions as to fault) or causation issues (such as pre-existing conditions or other issues which challenge the relatedness of your injuries to the accident) which prevent you from recovering the full amount of your medical bills. Based on your prior lawyer pushing for such a low settlement, I assume that there are some problems with your case.

      At a minimum, by law medicare will have to reduce their lien by your recovery costs (the percentage of your recovery taken by attorney’s fees and costs). So, if your recovery costs are 40% of the total recovery, the medicare lien would be automatically reduced by 40%.

      Medicare liens are pretty tricky for a lay person to handle (especially if you are seeking a reduction beyond the standard “recovery cost” reduction), so if you can eventually find some other lawyer to take your case, I’d definitely recommend it.

      • Danyelle Hanna says:

        Thanks for your response, this really helps. Thirty years ago, I had cancer related surgery and the insurance company is definitely trying to relate this to my accident (surgery for hand and this is a soft tissue neck, shoulder, and back injury). My former lawyer has told them that he believes that the pain I am feeling is from previous surgery although my medical records show otherwise. I am still in a lot of pain and he advised me not to continue going to the doctor and the bill collector’s are still harrassing me about unpaid medical bills. I could not get a straight answer from previous lawyer about medicare bills and medicare reimbursement. Now that I know that they are not aware of the accident, how should I tell them? What course of action should I now take?

        • fl_litig8r says:

          You can report the accident to the Medicare Secondary Payer Recovery Center (MSPRC). Here is a direct link to their pdf information form about reporting a claim.

          There appears to be a new “fixed percentage” settlement option (just implemented Nov. 7, 2011) for people who settle liability claims for $5,000.00 or less. It allows you to settle your entire Medicare lien for 25% of the amount you received from the liability settlement. So, for a $5,000.00 settlement, that would be $1,250.00 to wipe out the whole lien. Here’s the information sheet for this new option. You should really browse the MSPRC website, as it has a ton of information (unfortunately much of it is in pdf form).

          Your former lawyer may have claimed that the pain was related to your pre-existing condition to try to avoid you having to pay back medicare, as medicare is not entitled to recover payments it made for treatment unrelated to the accident. Of course, conceding that an injury is unrelated to the accident reduces the overall value of the claim, so this is not always a wise strategy.

          It appears your options would be to (1) keep pounding the pavement to find another lawyer, so you can get more than $5,000.00 to settle your case or (2) take the $5,000.00 settlement and possibly settle your medicare lien for $1,250.00 using the new fixed percentage option. Of course, if the $5,000.00 settlement offer is based on the unrelatedness of certain injuries to your accident, you should recalculate your medicare lien to exclude treatment for those injuries before deciding whether to use the percentage option.

          • Danyelle Hanna says:

            Thanks so much. The medicare issue was my biggest concern. One last question. Now that the case is at a standstill, can I still pursue a settlement from the insurance company? They were still willing to offer a settlement, but former lawyer stated that they were considering taking legal action against me for not taking the settlement. The statute of limitations has passed, but a lawsuit was filed in court before it was up. However, since a settlement could not be reached, can I contact them directly or would it be best to let another lawyer handle this. I really appreciate your advice, it has been very helpful. Have a Happy New Year!

          • fl_litig8r says:

            As far as the insurance company “taking legal action against you”, I assume your former lawyer just means that they will hire a lawyer and defend the lawsuit. If your statute of limitations has run, you need to confirm that your lawsuit hasn’t been dismissed for failure to prosecute. This happens if a lawsuit sits without any record activity (nothing filed with the court) for a certain period of time (usually around a year, but it varies among states). As long as your lawsuit is still active, you can either (1) see if the $5,000.00 offer is still open by contacting the insurer (or its lawyer if it filed an answer to your lawsuit) or (2) find another lawyer to step in and take over your case. If you want to take the $5,000.00 offer, don’t be surprised if the insurer needs to confirm that you no longer have a lawyer before it is willing to speak to you directly.

            As to whether you should take the offer, that’s a question that only a lawyer with access to all of your medical and accident records can answer. You’ve already had one lawyer tell you to take it. If you are having a hard time finding another lawyer, that may indicate that your case isn’t very attractive.

  20. Danyelle Hanna says:

    Thanks again.

  21. Laura L. says:

    Hi,

    I have a quick question about Virginia personal injury and bankruptcy.

    I was recently involved in an automobile accident in VA. I have just been notified that the person who hit my car has filed for chapter 13 bankruptcy and the letter states that she has listed me as a liability in her bankruptcy petition. I have been told that I can petition the bankruptcy court to lift the automatic stay as it pertains to her automobile insurance policy because her auto insurance is not an asset of hers and therefore I would not be asking the bankruptcy court to take any of her assets out of bankruptcy. She has a creditors meeting coming up I believe on the 10th of January (2 weeks or so). My trial was already scheduled to begin on January 24, and now I am being told that the trial won’t happen because of the stay. How soon after the creditor’s meeting can I petition the court to get the stay lifted so that I can get another trial date? Also is there any way possible to keep the same trial date? If there is no way to keep the same trial date because of the automatic stay, can my case be escalated on the court’s docket for a new trial date once the “stay” has been lifted? Other than what I have mentioned, are there any other options are available to me and any other tips you can share with me?

    Thxs for your reply!

    • fl_litig8r says:

      Wow, talk about lousy timing. I’m assuming that the bankruptcy trustee won’t oppose the lifting of the stay, as it has no impact on the other creditors. Lifting stays in situations like yours is fairly routine and common. However, different judges move at different speeds. There’s no guarantee that the bankruptcy judge will enter an order lifting the stay in time to meet your trial date, even if the petition is filed immediately. Have you had your pre-trial conference in your tort case yet? If not, the stay will prevent that from occurring, which would probably require bumping the trial date as well.

      As far as getting expedited treatment after your trial is continued, I think this is unlikely. Most court calendars are set far in advance (often a year or more), so you’d basically have to bump another case off the calendar to squeeze yours in early — something I can’t see any judge doing. The only way to get an earlier trial in most cases is to accept a later position on the trial docket. As you may already know, courts schedule multiple trials for the same day, due to the vast majority of cases settling. Frequently, there will be four or more cases set to go to trial at the same time, with each case being assigned a priority (1st on the docket, 2nd on the docket, etc.). So, if case #1 settles, case #2 goes to trial that day. If cases #1-3 settle, case #4 goes to trial, etc. If you’re not #1 on the docket for a trial date, and the cases ahead of you don’t settle, your trial gets bumped to the next available docket (which could be many months down the road). So, you may be able to get an earlier trial date by accepting a lower docket position in the hopes that all of the cases ahead of you settle. It’s a gamble, but it’s the only way I can see you getting an earlier trial date. If you want to wait for a trial date when you are the #1 case, you’ll likely be waiting a long time (it’s a year or more in courts in my area).

      Sorry I couldn’t give you better news. The only way you can keep your trial date would be if the bankruptcy court would entertain your petition on an expedited basis (a few days, usually). I’m no bankruptcy expert, so I can’t give you the odds of this happening. I would think that an unopposed petition seeking expedited review due to an imminently pending trial date would have a decent shot, but I’m just speculating on that.

      • Laura L. says:

        Yes, it was rather lousy timing. But it’s a new year and I am going to think a positive outcome of this matter into existence.

        A friend told me about your website and helped me to send this message. Thank you for sharing time and information.

  22. lauri m says:

    I was in an accident a few months ago in Ohio-the other driver’s fault. Medical insurance has paid all bills associated with this. I am currently in process of settling with the other driver’s insurance company and want to make sure I do this right. Bills totalled over 6000 with their “allowed” amount being 3000 and they payed 2500. Which figure will I pay back-dont want to assume. Also trying to figure pain and suffering portion-had a lot of pain and doctor visits, therapy, mri, etc. for 2 months. I know you can’t give exact but just looking for ballpark figure.
    thanks

    • fl_litig8r says:

      You never have to pay back more than the insurer actually paid, so $2,500.00 would be the maximum to which it would be entitled. Of course, depending on the “make whole” language of your plan and your negotiating skills (and the personality of the subrogation adjuster you deal with), you could pay even less.

      As for the pain and suffering, this is really impossible for me to even ballpark without more information (which I am not asking for). Think about the following: is your pain gone now; if not, is it permanent? If it’s gone, and you only had 2 months of it (not to downplay two months of pain, but in the personal injury world, this isn’t a long time), it really becomes a matter of the severity of the pain for that two months.

      If your pain was moderate or less for a fixed period of time, use the lower end of the multiplier scale (1-3x medicals). The more severe the pain, or the longer it is expected to continue, the higher you go on the multiplier.

      A lot of this is really academic, as it boils down to what you are willing to accept versus what the insurer is willing to pay. Just remember to always start higher than what you want (e.g., you could ask for your medical bills plus twice what you really want for pain and suffering). Let the insurer bid you down to (hopefully) what you really wanted in the first place.

      Don’t forget your out-of-pocket expenses, wage loss, and travel costs (gas isn’t cheap these days) for medical visits. Also, don’t forget to project any future medical costs and pain. You won’t be able to come back to ask for more after you’ve settled. Good luck.

      • lauri m says:

        thanks so much!!! very helpful! one last question: when multiplying medical bills by the 1-3x scale do i use total billed figure or the allowed amount figured by medical insurance company?

        • fl_litig8r says:

          Ohio law allows the defendant to introduce evidence of the actual amount paid to satisfy your medical bills, so juries will tend to award only the amount paid. Therefore, I’d use the actual amount paid (including out of pocket), as that would be the amount a jury would likely consider when figuring out your non-economic damages. In states where the jury only hears the full amount billed, and not the amount paid, I’d go with the billed amount.

  23. Mitz says:

    I was rear-ended in California in June 2010 which resulted in neck injury/whiplash. I had chiropractic treatment for 4 months with medical bills totaling $3,500 paid by my health insurance. However, 10 months later, I experienced neck pain and this time i went to a neurologist and underwent MRI and physical therapy which totaled about $4,000 paid by my insurance company.

    I settled my property damage separately. As for my personal injury, the auto insurance’s final offer was $5,000. They stated that my medical bills have already been paid by my health insurance. When I told them about my subsequent treatment, they stated they will not consider it because it was one year after my last treatment with my chiropractor.

    I am honestly tired of dealing with them. If I settle for $5,000, and my health insurance later on sends me a form about my treatments, will I be able to state that I only settled for general damages and there was no settlement for the specials? How about my subsequent treatments, will I be able to state that I received no settlement for it?

    Note: (if important), I was rear-ended 2 months before my wedding, so some important elements were affected and stated during negotiation.

    Any advice will be appreciated.

    • fl_litig8r says:

      The insurance company knows damn well that you’ll have to pay back your health insurer, so their line about “well your health insurance paid for it” is clearly an attempt to deceive you. As far as settling and telling your health insurer that your damages don’t include your medical bills, it won’t work. If it was that easy to get out from under a health insurance lien, every plaintiff would insist that a “this isn’t for my medical bills” clause inserted into their settlement agreements. If your health insurer decides to sue you to recover its payments, no court will buy that argument. When you settle, make sure that you get enough to pay back your insurer (note that they probably paid less than the full billed amount due to discounts they get from medical providers).

      As to the year-long gap between treatments, this presents a different issue. If you can’t prove the relatedness of the subsequent treatment to your accident, and you don’t want to hire a lawyer to prove it for you (if possible), this could get you out of repaying the health insurer for the second round of treatment. It’s not a sure thing, but you’d have a much better chance claiming that the settlement didn’t include the subsequent care due to lack of evidence of relatedness. As hard as it is for you to prove relatedness now, it will be just as hard for your health insurer, should they try to get reimbursed for it.

      If the amount of the settlement is so low that it clearly doesn’t include the subsequent treatment, that would also work in your favor when arguing against reimbursing your health insurer.

      Be sure to check your health insurance policy for the “make whole” language I discussed in the article. It’s usually in a section labeled “reimbursement” or “subrogation.” If the insurer didn’t preserve its right to recover even in the event you were not made whole (which is pretty rare these days), you may not have to pay it back (or you could pay back a whole lot less than the full amount).

      To be super safe, you could contact the health insurer’s subrogation department and see if they’ll give you a lien amount before you agree to settle. They may not include the subsequent care, or you may be able to explain how since the liability insurer considers the subsequent care unrelated, they should remove it from the lien.

      Good Luck.

  24. Melinda F (last name removed by admin) says:

    Hello,

    A quick question. I was speaking with my doctor the other day. He mentioned he has appeared at many personal injury trials and that insurance company are so determined to not accept responsibility when someone is injured by “their insured” that they are willing to spend $100,000 to defend paying $20,000. This includes have multiple people follow you day and night like a tag team trying to get something on you or catch you bending, lifting or whatever. Why do they go to such lengths. It is annoying being followed day and night. I basically just stay inside unless I absolutely have to go out. I actually get some enjoyment watching them from my window waiting hours and hours upon hours for me to come out so that they can follow me. It is amazing the lengths they go to and they don’t have one car follow you. They use several like a covert spy operation. Totally blows my mind when I see them racing to keep up with me.

    • fl_litig8r says:

      Don’t let your doctor make you too paranoid. Usually, when surveillance is done in a personal injury case, it’s only for 2-3 days in a row (whether they get anything or not). If the first round of surveillance doesn’t produce anything, they may try again another week for another 2-3 days. Usually they give up after 2 failed attempts. Unless your claim is highly unusual or worth millions of dollars, I can’t see the insurer doing more than that amount of surveillance.

      Also, if insurers acted as your doctor suggests, they’d go bankrupt. While there are some types of cases that justify them spending more than the value of the individual claim in defense (i.e., cases which would set a bad precedent that would affect many future cases), for the most part they try to settle when the defense costs look like they’ll exceed the value of the case. Of course, sometimes an adjuster will have a personal vendetta against a plaintiff which make him want to spend whatever it costs to screw that plaintiff (if they’ve exchanged heated words or letters before the lawyers got involved or the adjuster is convinced that the plaintiff is committing fraud), but this is extremely rare.

      So, unless your case is special (potentially precedent setting) or worth a ton of money, I’d expect the defendant’s insurer to behave reasonably, and not do more than a few days worth of surveillance. Just wait the surveillance out. They will give up before too long.

  25. Melinda F (last name removed by admin) says:

    Thanks for your reply. I have been under surveillance for nearly 2 years not 2 or 3 days. I kid you not. Once you know you are under surveillance you are able to pick up their habits of how they operate, and basically if you (the plaintiff) are an astute observer, you can s their whole modus operandi. It’s almost like they hand you their daily game plan in advance of your leaving the house each day. The key and operative words being “an astute observer”.

    My case is potentially worth a half million dollars. I know without fail they have been following me for 2 years since my accident. They have tried it all. One of the ways is trying to get me to cause an accident. How, you ask? They plant a car a little ways away from your normal route and it’s just sitting in the shoulder lane. The car has plenty of time to do a u-turn because no other cars are approaching it except yours. They make sure no other cars are in their lane or yours. Then when you are right there bumper to bumper on opposite sides of the street, that car suddenly does a u-turn in front of your car leaving you no time to stop to avoid hitting them — that is at least if you weren’t expecting them to do that. Fortunately, their eyes are so focused on you as you are approaching on the opposite side of the street it tips you off, so stop at the half of a second when you saw their wheels move because you knew what they were up to and you avoid hitting them.

    There have been other times when they have tried to catch me speeding or committing some other traffic infraction, etc. I have seen them sitting in the shoulder lane — their favorite lane — and as soon as my vehicle passes they pull off behind me. Unbeknownst to me — or so they think – they have a device monitoring my speed and they are also taking pictures. They don’t think I can see the hand-held devices in their hand. Of course, I do the speed limit, stop at stop signs, turn my signal on when turning and thus, this is why 2 years later they are still trying to get something, anything, that they think they can use against me should my case go to trial.

    I’ll go even further to show how desperate they are. Whenever I do not show my face and leave my house for 3 or 4 days on a straight, they call my home and cell numbers and hang up. I don’t have enemies and I don’t get involved with people who would have a need to call and hang up so I know after a few days of being inside that the hang up calls are coming from them. Again, it’s their habit, they have shown it to be their modus operandi and it’s easy to recognize the their timeline for doing things. After a few days of no show by me, they get to wondering if I’m still in the home, have I slipped under the radar without them knowing etc. because they ask themselves who goes 3 or 4 days without being seen, etc. Seriously, I CANNOT TELL YOU the number of times I have detected them following me, trying to catch me speeding, etc. I even recall more than one occasion when I went to get into my vehicle and “they” were waiting for me to come out but I sneaked out and walked right up on them and when they saw me coming they actually ducked down in their seat almost hitting the floor mat trying to conceal their face. Who does that? I don’t live the type of life for these type of things to be happening. I just don’t. There is no reason to be dishonest about what I am saying. I am telling you how far they have gone for the last 2 years and how far they will continue to go. This comes no where near to being paranoid since these are facts through solid observation. A coincidence? Maybe? For 2 years? Not!

    It just begs the question of why because my injuries, doctors reports and medical bills support my injuries.

    • fl_litig8r says:

      I’ve got to admit, I’ve never heard of such a thing. A half million isn’t a small claim, but I’ve handled multi-million dollar cases where nothing close to this has happened. I can’t see why anyone would care if you committed any traffic infractions, as those would not be admissible in your case anyway. I also fail to see how causing you to have another accident two years after your initial accident would help their case.

      I’m assuming that you’ve shared your concerns with your lawyer. In most states, you can find out through discovery whether surveillance has been done on your client–if they assert a “work product” privilege, they should still have to generally identify the materials that are being withheld pursuant to the privilege (e.g., “5 videotapes and 10 pages of written reports”). If the defendant intends to use those materials at trial, you can even get copies of the reports and videos.

  26. Melinda F (last name removed by admin) says:

    I kid you not. They sit in front of my home for hours. If I leave out, they leave out behind me. Some days I don’t even go out because I don’t want to be followed. I am sure it frustrates them to sit for hours upon hours 2 or 3 days in a row and I don’t even come out. When I don’t come out after 2 or 3 days, they call on the phone. I have started not to answer the phone because the timeline of the hang up phone calls is like clockwork.

    Regarding discovery, I have retained an attorney and informed their office of the non-stop surveillance. When my attorney sent out interrogatories and requested surveillance tapes and reports, they gave some bogus answer by saying they reserve the right to supplement their answer even though they did not answer the question. In hindsight, to me, they were basically saying “yes, we have surveillance and a report, we’re just not sure it will do us any good because so far we have not been able to catch your client doing anything illegal, we could not catch her doing anything she said she was physically unable to do before she reached maximum recovery and therefore we reserve the right to supplement our answer because we are determined to find something we can use against your client; that’s why after 2 years we still have her under surveillance. In fact, they (the defendant on the direction of her attorney) hardly answered any of the interrogatories. Question after question basically was answered the same way…we reserve the right, etc. It now makes me wonder since you brought up interrogatories, why my attorney had me answer their questions, yet they would not answer ours.

    One thing is for sure, I have learned more than any personal injury attorney could have taught me about the sneaky side of how insurance companies and insurance company lawyers operate.

    • fl_litig8r says:

      If they said that they don’t have any surveillance materials “but reserve the right to supplement”, they’re saying that they haven’t done any surveillance, but may in the future (after the date of their answers).

      If they objected based on work product, your lawyer can likely file a Motion to Compel to have them generally identify what materials are being withheld (most jurisdictions require this so the attorney who asked for the items can make a preliminary determination as to whether the work product privilege applies).

      Most defendants give lousy and vague interrogatory answers. Your lawyer could move to compel better answers, but most of the time it’s not worth the effort (and may not be strategically desired). Your lawyer had you give complete answers to avoid any arguments by the defendant that certain evidence be excluded from trial due to lack of disclosure (like if you omitted a doctor from your answers).

      Also, it’s really just an issue of interrogatories being more useful against a plaintiff than a defendant. Plaintiffs have lists of doctors and wage loss issues which can be probed effectively with interrogatories. Those types of questions just don’t apply to defendants, so the plaintiff is left asking questions about how the accident occurred and what witnesses and evidence will be used at trial. Most lawyers (both plaintiff and defendant) give vague answers to “how the accident happened” type questions, which usually winds up being a moot issue as these questions are better answered during depositions anyway. As to questions about witnesses and evidence, most lawyers respond with something like “no final determinations have been made at this time as to who will be called as witnesses at trial or what evidence will be introduced.” Most courts don’t require lawyers to commit to witnesses and evidence at trial until the deadline for final witness and evidence lists is set in the pre-trial order.

  27. Melinda F (last name removed by admin) says:

    Also, regarding your comment that you don’t see why anyone would care if I committed any traffic infractions, I see why. Their client was talking on the cell phone when they rear-ended me. I, on the other hand dont’ have anything on my driving record as far as accidents so it seems like it is sort of tit for tat trying to create a bad driving record for me. Also, I believe everything they are trying to get on me is for trial sake. Not for settlement sake. They are trying to build a case against me just in case we have to go to trial.

    • fl_litig8r says:

      My point was that even if you had 10 moving violations which don’t stem from the accident at issue, it wouldn’t be admissible. It wouldn’t help them at trial one bit. It really wouldn’t make sense for them to waste time on this, either for settlement or trial.

  28. Paul says:

    Quick Question.
    I was in a hit and run car crash that made my car a complete loss in October of 11′. I was taken by ambulance to the ER and underwent physical therapy for 3 months, as well as multiple bruises and marks. They caught the person responsible and their insurer is taking 100% liability.
    However, it is time to settle, and they claim they have reached their “max offer” at medical bills repayment plus a pain and suffering that is a fraction of my medical bills.. I was under the impression that the offer was going to be at least 1-3 times. Theirs is a fraction…
    Also, my health provided paid some of my bills, and now they want to recover them. How exactly can I negotiate to make the repayment less than what they paid?
    I really don’t think that their insurance is giving me a fair offer, and I really really really do not want to sue the lady that caused my crash. Her insurance were so good with settling my car loss, but they are HORRIBLE when it comes to my PI claim.
    HELP!!!?

    Also, this happened in Baltimore, Maryland

    Thanks for the advice!

    Paul

    • fl_litig8r says:

      The 1-3x medical calculation for pain and suffering is just a rule of thumb, not really a hard and fast rule. If all you suffered in the accident were bumps and bruises, and you’ve made a full recovery after only 3 months of therapy, your pain and suffering won’t be worth much. Any trip to the hospital will inflate your medical bills if it turns out that all they did were x-rays and tests to rule out serious injury. I’m not saying that you shouldn’t have gone to the hospital. It’s always better to be safe and get checked out. However, you need to be realistic about the amount of pain you had and for how long, and not let a rule of thumb blind you to what may be a fair amount for your actual pain. You also need to ask yourself if a lawyer could get you enough above the insurer’s current offer to offset the 1/3 fee and costs. It may be time to get a free consultation.

      As to dealing with your health insurer, the first thing you need to do is look at your plan’s “make whole” language to see if it reserved the right to be repaid in full even if you haven’t been fully made whole by the settlement. If you don’t have a copy of your plan, you can either ask your employer for one or ask the insurer’s subrogation department to fax you the make whole provision. If they didn’t claim the right to be repaid in full regardless of whether you were made whole, you’ll be in a much stronger bargaining position.

      To settle the claim (after you’ve found out the make whole language), you’ll need to deal with the insurer’s subrogation department. Ask it to fax you an itemized listing of payments for which it is claiming a right of reimbursement. You want to make sure they aren’t including anything unrelated (it happens). You may need to look up some billing codes online to interpret the statement it sends you. Once you have confirmed that all of the payments are related, it’s really just a matter of asking the insurer to come down from the full amount.

      Tell the insurer the full amount of your settlement (do not tell them the breakdown between pain and suffering and medical that the liability insurer agreed to — you don’t want it to know that the settlement presumed full medical reimbursement). Play up your pain and suffering and how you’re settling for less than the full value of the case just to avoid having to pay a lawyer (and maybe getting less). Then, start with an offer lower than where you want to end up (offer them 1/3 or 1/2 of what they claim).

      You probably want to get the health insurer to commit to a number before you agree to a settlement with the auto insurer. This gives you more leverage, because if the health insurer is unreasonable, you can always tell them that it wouldn’t be worth it to you to settle your case at all if they are going to demand that much (basically threaten to walk away from your liability claim entirely just to see that the health insurer gets nothing). Don’t be aggressive or take an attitude with the adjuster while doing this. Just sound really disappointed, and explain that you are just trying to make a deal that’s fair to both sides. (Why should they get paid in full when you’re not?, Why should you do all the work settling the claim when they get most of the money?, etc.).

      A lot of times, lawyers will make a deal by proposing to split the settlement 3 ways: 1/3 to the lawyer, 1/3 to all medical providers and insurers, and 1/3 to the client directly. In your case, you may want to make it 1/2 to you and 1/2 to them (or not, depending on how the math works out).

      Just remember, you will never pay them less than the highest number you offer. So start low, and if they counter, don’t rush to “split the baby” between the two offers — see if they’ll do lower than that first.

      Good luck.

      • Paul says:

        Wow. Thanks for all the great information. Unfortunately, I still have not settled the claim with the car insurance company. I told them that before I settle, I really want to get my knees checked out to make sure there is no permanent damage (as they still ache and crack). I went to see my primary car doctor, who referred me to get new x-rays, and to see an orthopedist. The orthopedist diagnosed me with pantello-femoral syndrom as a result from an impact (aka colliding with the dash board). The doctor said that although I have a diagnosis, there is not much that he or I can do. He said things that I can no longer do like certain exercises, and certain exercises that I must do to help reduce irritation.
        At this point I am completely lost. I have absolutely no idea what my claim is worth, but now I know that my knees are going to stay in the condition they are in for quite a while.
        Also, my health provider has only set me a recovery letter for my main hospital stay so far. Is that all they will want, or can they come after me later for the ambulance, xray, and other doctor bills.
        I am just confused in general, but am still not sure if I should hire a lawyer. I realllly do not want to have to pay one, but they also just make me kind of nervous. (no offense.)
        Any sort of other advise would be great. Again, I really appreciate all of the information you gave me before, it was extremely helpful!

        Thanks!!!

        • fl_litig8r says:

          Patellofemoral Syndrome is new to me, so I had to look it up. Unfortunately, the sites I checked did not link this disorder to trauma. Rather, they attribute it mostly to either congenital issues, or from long term overuse issues (frequently among athletes). You’re going to be hard-pressed to prove that this condition was caused by the accident. More likely, it sounds like you may have had this condition already, but it possibly became aggravated by the accident. One positive result of this injury not being related would be not having to pay back your health insurer for any knee-related treatment.

          As to the knee treatment, what your doctor said is consistent with what I’ve read. In most cases, it is treated with over-the-counter pain medication and exercises to strengthen the surrounding muscles. In some cases, severe arthritis occurs which can be treated surgically (which I’m assuming your doctor doesn’t feel that you need).

          What this means for your lawsuit is that your knee injury probably won’t be worth much. Even if you can prove that the condition was caused by the accident, which looks like it will be quite a stretch, the treatment is cheap (which doesn’t add much to your damages).

          As to your health insurer, as long as it knows all about the injury and the related treatment, I’d only pay it back what it asks for. You could call them to confirm that the information in the recovery letter is their entire claim for reimbursement, without volunteering any other information about the care you’ve received. Just tell them that you are considering a settlement offer and you don’t want to be blindsided with another recovery request after the fact. If they confirm that the amount requested is accurate, ask them to put it in writing and either fax or mail that to you, so you have it for your records.

          Whether you should hire a lawyer or not really depends on how happy you are with the liability insurer’s offer, after your health insurer is repaid. If you’re happy (or at least, not unhappy) with the offer, go ahead and settle on your own. If you’re not happy, talk to a lawyer and see if he thinks he can do better for you after his fees and costs are deducted. Most will discuss your case with you on the phone before having you come in to see them (to weed out the cases they obviously wouldn’t take), so that should be less distressing for you than a face-to-face meeting. I know we make a lot of people nervous, but really we’re just people, too. If you don’t like how one lawyer sounds on the phone, don’t make an appointment with that one. Find one that sounds personable and you’ll feel a lot more comfortable meeting with him or her face-to-face. Remember, if you don’t like what they have to say, you don’t have to hire them.

  29. Paul says:

    That is interesting because the majority of sites that I have reviewed (medical journals and college sites) listed overuse and sports as causes, but also specified that traumas such as automobile accidents can be a cause as well.
    When I was speaking with the doctor, I specifically asked him if this was an issue that could have been caused by something else. He specifically said the causes, but that he truly believes mine is a result of the auto accident.
    How would I go about proving that to their insurance?
    All I know is I am 19 years old, and had no prior issues with my knees what so ever, but now I do.

    • fl_litig8r says:

      I just looked at the top 3 reliable-looking sites I found through a Google search for Patellofemoral Syndrome. There certainly could be other sites that state that it could be caused by trauma. It’s funny that you mention that you’re 19, as normally I would think that would help you. However, the sites I reviewed specifically state that patellofemoral syndrome is most common in adolescents and young adults (they didn’t explain why).

      As to how to prove that it’s related to trauma, it comes down to your doctor’s opinion and any authoritative journals that support this theory. If a lawsuit is filed, this would likely come down to a swearing match between experts, and who the jury finds most convincing. Pre-suit, you need some statement from your doctor (whether this be in his medical records or via a short letter) in which he states that your patellofemoral syndrome was caused by the accident. You could then submit this written statement to the insurer. Whether they accept his opinion is an entirely different matter.

  30. Jenny says:

    I am so fortunate to have stumbled upon your site, most of my questions have been resolved in the previous posts, but I am wondering how to ask for the whole policy limit. In my accident the at fault party has a $250,000 limit and as of now my medical bills are almost $125,000. I was hospitalized for three weeks and had two surgeries to repair a very nasty break to my tibial plateau. Also fractured a finger and my wrist, I couldn’t walk for three months. Future prognosis could be total knee replacement. My pain was unreal. As such I am convinced I deserve more than the policy limit but I am willing to settle for the 250k. My question is when someone in this situation is preparing their settlement demand and its obvious they could get more had the cap been higher, do you start off by throwing a bigger figure out there like $400,00, and then negotiate down to the $250,000. Or since $250,000 is the limit do you start off asking for the limit and then providing all evidence supporting why you should get the whole amount. I want the insurance co. to take me as serious as possible seeing as I am going rogue on this. I’m afraid to ask for too much and have them think- “is she stupid, the cap is 250,000 and she know that”, but am also afraid to ask for 250,000 and them try to low ball from there. Any input from you is just invaluable and I appreciate it so much. Thanks!

    • fl_litig8r says:

      If you are sure that the liability insurer’s limit is $250,000.00, there’s no point in trying to ask it for more. In fact, by making a demand that does not exceed policy limits, you put yourself in a position to possibly sue the insurer for bad faith if it should refuse your offer (or not accept it before a reasonable deadline). You should give the insurer a 30 day deadline to review your demand and supporting documents. Any less than 30 days, and you jeopardize your potential bad faith case.

      Before you go rushing off to settle, though, are you sure you’ve tracked down all the insurance that’s available? For example, if this is a car accident case, do you have UM coverage? Also, if it’s a car accident, was the driver that hit you the owner of the car, as well? If not, there may be two liability policies available, one from the owner and one from the driver.

      Make sure the liability insurer you’re dealing with sends you a copy of its insured’s declarations sheet to prove that the limits are, in fact, $250,000.00, before you offer to settle for that amount.

  31. Jenny says:

    Hi, thanks for your answer! I am certain that the cap is $250,000, and the at fault person was the owner of the car. I do have UM in the amount of $25,000 however was told by my insurer that in order to for them to pay me anything my policy would have to be double that of the at fault parties, which it is not, I don’t know if that is statute or just a run around they are giving me. So, at this point I’m afraid that 250,000 is really all there is to work with. When I make my demand for policy limits, do I sweetly insert in the demand letter that they have 30 days to respond or they will be acting in bad faith? Or, do I send my letter and if they have not cut me a check within 30 days then I hire an attorney and start bad faith proceedings. Thanks again for your help!

    • fl_litig8r says:

      What state are you in, Insurancelandia? Your UM coverage is triggered once your damages exceed the tortfeasor’s liability limits (or immediately in the case of an uninsured tortfeasor). There is no requirement that your UM be twice the liability coverage of a tortfeasor before it pays out. That’s a pretty ridiculous claim for your insurer to make.

      So, as long as your damages exceed $250,000.00, your UM has to pay the excess amount up to $25,000.00 (for a total of $275,000.00 in coverage between the tortfeasor’s and your insurance).

      Depending on your state, you may need to get the approval of your UM carrier before accepting a settlement from the tortfeasor’s liability carrier (failure to do so could waive your UM coverage). The purpose of this is to preserve the UM carrier’s subrogation rights against the tortfeasor. Basically, if the UM carrier thinks that the tortfeasor has enough money to reimburse it out-of-pocket for the amount it has to pay in UM benefits, it can sue the tortfeasor to get its money back (this is subrogation). If you settle with the tortfeasor, you’ve destroyed your UM carrier’s subrogation claim. So, in some states, like my state of Florida, you need to get the UM insurer’s permission before settling with the tortfeasor and destroying the UM carrier’s subrogation claim. If the UM carrier denies permission, it must pay you the amount you were going to settle for, in addition to whatever UM amount it owes you. Then it sues the tortfeasor and his liability insurer to get its money back.

      It’s complicated, but you are safe as long as you request (in writing) that your UM insurer give you permission to settle with the tortfeasor for his policy limits, and receive the UM carrier’s approval before you settle.

      As to the demand letter to the liability insurer, you never mention bad faith. All you say is that your offer to settle will remain open for 30 days from the date of your demand letter, and that if you do not receive a settlement check for the amount demanded within that time, your offer is withdrawn and you will proceed to litigation.

  32. Jenny says:

    Insurancelandia?lol! No, just Georgia. How does one essentially prove non economic damages without a trial? If my provable economic damages are thus far 125k is it possible to prove that my future damages and pain and suffering will be more that 250k thus resulting in UM having to pay. Or is this only MY opinion and thus not taken into account.
    In regards to the settlement demand, say they write back stating that are willing to settle for less than the policy limits, do I simply rewrite my letter and tell them I do not accept and that the 30 days is still ticking? Thanks for your help, if I could I would make u brownies!

    • fl_litig8r says:

      How do you prove non-economic damages without a trial? The same way you prove them with a trial — you describe your pain and suffering and emotional distress. In your demand letter, describe the pain you felt from the accident, from the medical treatment, pain you currently have, etc. and how it has affected your life. Be persuasive. Describe the activities you used to do that you now can’t, or that you can only do with pain: grocery shopping, playing with children, long drives, golfing, swimming, etc. Mix in work/chore type activities with recreational, so they get a more full picture of how you’ve been affected. Don’t just say “my knee hurts”, say “I wake up in the morning and my knee is swollen and stiff, throbbing with pain. I dread the pain I feel when I first put weight on it getting out of bed.” Then go on to describe your day and how it feels through a typical day’s activities. Tell a story, but don’t go completely overboard and exaggerate. It might help to break down this part of the letter into sections: 1) pain after the accident but before 1st surgery, 2) pain after 1st surgery, 3) current and expected future pain.

      The better you tell your story in the letter, the more convinced they will be that a jury will sympathize with you at trial. There is no guarantee that they will be moved by your story. They may just look at your medicals and make their own guess at how much your pain is worth.

      If they come back with a counter-offer, that is a rejection of your offer under the law. At that point, the 30 days no longer matter and you need to decide whether you want to negotiate for a less-than-policy-limits settlement or hire a lawyer. If their counter-offer includes a letter disputing your valuation of the claim, and you feel they’ve overlooked or misinterpreted some key facts, you could write back and explain how they’re wrong (and give them until the original deadline to change their minds), but realistically at that point they’re probably not going to pay the limits without you filing suit.

      Instead of brownies, I will always accept a Facebook “like” or Google “+1″ on any articles you find helpful (buttons are at the bottom of each article).

  33. james monroe smith says:

    hi i have a attorney i live in georgia and i was in a car accident the other driver was found at fault for rear ending me my attorney contcted me today and given me a new offer from the driver who hit me rear ended me for $30,000.00 my bills total up to little over $22,000.00 not counting the 40% attorney fees attorney has sent another offer out but has told me state farm wont come above no more then $35,000.00 i still have major headaches and pains in my neck i dont want to sue anyone but im not sure what to do due to i know a lawsuit can take up to 2 to 3 years and advice would be great thanks

    • fl_litig8r says:

      Well, just doing some simple math shows that a $35,000.00 settlement, after a 40% fee (which doesn’t even include costs) would net you $21,000.00. With medical bills of over $22,000.00, what incentive do you have to take this offer?

      You should sit down with your lawyer and have him break down for you how a $35,000.00 settlement would be paid out. Unless he has some plan for reducing or eliminating your medical liens, so that you get some money in your pocket, there is no reason why you settle for $35k. Your lawyer would get paid. Your health insurer would get paid. You would not. The only advantage you have is that your lawyer can’t settle the case without your permission. So, use that advantage to make your lawyer sweeten the pot for you.

      Of course, if your case is clearly worth more than $35,000.00 (I can’t give an informed opinion about that), the only way to get more might be to file a lawsuit. It may take a long time for the lawsuit to get resolved, especially if it has to go to trial. But, given the position you’re in now, it seems that you have nothing to lose. If the only pre-suit settlement offer the liability insurer will make puts no money in your pocket, you’re no worse off if you file suit and wait 2 years for the chance to get some money.

      In short, unless your lawyer can work out a way for the $35,000.00 settlement to pay you enough to satisfy you, your only real option is to file suit and try to get more.

  34. junior more says:

    Hi,
    Hope you can help me figure this out.
    After my accident 4-6-11, I recieved 2 settlement checks for loss of use and for totaled car. They told me I should be getting one more settlement check for medical for $3900, but they wont send it until they find out how much kaiser charged for the treatment (wich was paid thru my work ins.) I get a letter from healthcare recoveries for Kaiser saying they want reimbursement for $1900. So am I supposed to give them (kaiser) $1900 when the ins. sends me the $3900 settlement?
    Thanks for any help

    • fl_litig8r says:

      Unless you have some grounds for disputing Kaiser’s right to reimbursement, or the amount it is claiming, then yes, you do need to pay them the $1900 back. Has Kaiser sent you an itemized statement identifying the treatments for which it is seeking reimbursement? You should make sure that all of these bills are related to your accident. Sometimes insurers mistakenly include unrelated medical bills in their reimbursement requests.

      It may be worth your while to call Kaiser to see if it will accept a reduced amount. The worst it can do is say no. It’s worth a 10 minute phone call even if they just knock $100 off the bill. If it does agree to a reduction, make sure it confirms this in writing.

  35. wondering says:

    ok hre is a question we had a medical malpractice suit. my gf went to the doctors for a lump they told her she was fine. sent her for films , no problems, 10 months later she was found to have stage 4 breast cancer spread to the lymphnodes and lungs, to make it short, we caught the physician doctoring the records, and the radiologist didnt read the films he went totally of the technicians report. so they settled out of court, for just under 2 mil. we just got a letter from medicare because that is the insurance she had. are we going to have to pay back all of her old medical bill,s the cost of 4 surgerys, chemo everything?

    • fl_litig8r says:

      If your girlfriend was represented by a lawyer in the malpractice case, she probably won’t have to pay back the full amount Medicare paid for her medical treatment. Medicare will almost always reduce its claim by the percentage of the recovery that went to attorney’s fees and costs. For example, if 40% of the recovery went to attorney’s fees and costs, Medicare will reduce its conditional payment reimbursement request by 40% of the total amount it paid. Your girlfriend’s lawyer will need to provide the settlement and fee figures to Medicare.

      Also, if Medicare is asking for reimbursement for expenses which were not caused by the malpractice, you can challenge those and try to have Medicare remove them from the reimbursement request. In your girlfriend’s case, it may be that she would have needed some of the treatment she received even if the doctor had timely detected the cancer. Those costs should not have to be repaid. Again, this is something best handled by your girlfriend’s lawyer.

      The Medicare Secondary Payer Recovery Contractor website has a great deal of information about how these liens are handled, particularly in the “Tool Kit, Attorney” section.

  36. seekingadvice says:

    My wife had a fender bender last year around June. She was pregnant at the time (8 months or so). Because of the accident/pregnancy she ended up in the ER room and hospital for 24 hours for observation because she had contractions. At the time we didnt know anything about the other driver until we received the police report. The police report found the other driver at fault. We went back and forth with the other driver’s insurance because they claimed she was 30% at fault. That insurance wanted to settle with only $560 for property damage and $4000 for medical. The hospital bill itself was close to $13,000 (including doctor bill and ambulance bill). Property damage was estimated around $1,300, not including rental. We had health insurance and assumed they would cover the medical bills. Finally in December we decided to hire a lawyer. Last month the lawyer finally settled for $25000 plus property damage. At the same time the hospital sent us a bill for the expenses because our insurance had only paid a prorated amount and not the full amount. We forwarded the bill multiple times to our health insurance. They responded with a letter stating they had filed a complaint with a state regulatory agency because the hospital was not honoring some type of billing rate that insurance companies have. Now our health insurance is claming the full amount paid to the hospital from our settlement. I am about to meet with our lawyer and see to what extent we can settle this claim. Any assistance/advice would be greatly appreciated. We live in California. Thanks in advance

    • fl_litig8r says:

      Well, a lot will depend on whether the health insurance plan is an ERISA plan or not. If the insurance was issued through a non-government, non-church employer, ERISA will apply.

      If ERISA does not apply, you will be in much better shape. You can argue the (1) “make whole doctrine” (I didn’t make a full recovery, therefore the insurer should get nothing — or a reduced amount), (2) the “common fund doctrine” (the insurer’s recovery should be reduced by the percentage you paid in attorney’s fees) and (3) “reduction due to comparative fault” (the defendant paid less because my wife was partly at fault — therefore the insurer’s recovery should be reduced by the same percentage of fault). Using all three of these arguments should result in a significant reduction.

      Unfortunately, because most health insurance plans will be subject to ERISA, as most people get their health insurance through an employee benefit plan, the ability to win any of the above arguments will be questionable — although the “make whole doctrine” should work in your favor if the health insurance plan at issue doesn’t specifically disavow it (check your policy!).

      This gets even more complicated by the fact that some ERISA plans are insurance-based (an insurance company not only handles the claims, but pays them from its own funds) and some are self-funded (an insurance company may handle the claims, but the employer itself pays the bills). Self-funded ERISA plans are the worst for plaintiffs, because any favorable state laws that regulate insurance and are not preempted by ERISA won’t apply to self-funded plans. So, while your lawyer should make all three arguments I listed above in any case, if push comes to shove and a lawsuit gets filed to resolve this issue, your odds of winning go down if it’s an ERISA based plan, and down even further if it’s a self-funded ERISA plan.

      From what I’ve gathered browsing some California law blogs, no one seems to have any clear answers as to how ERISA liens will be resolved. Fortunately, this uncertainty (on both sides of the issue) makes it more likely that your wife’s insurer will be willing to negotiate its lien down to a more reasonable level. Given the low amount of the lien, relative to the expected cost of the insurer having to sue to try to make a full recovery, I suspect your insurer will be willing to negotiate.

      As a final reminder, if you have an ERISA plan, make sure your lawyer has checked the policy for its “make whole” language.

      • seekingadvice says:

        Thank you very much for your response. Yes, I forgot to mention our health insurance is government based employer.

  37. Tammy Capps says:

    We reached an out of court settlement for a 7/2006 injury that occured out fo state (FL) 30 days ago. The out of state attorney told us last month they were verifying with our insurance company if there was any pending lein. (we never received any notification of one.) Now 4 weeks later we were told a letter would be sent to Blue Cross Blue Sheild of TN (our home state) to check for a lein nect week, to which they have 30 days to respond to. Will the insurance company have the abililty to place a lein after the settlement was reached or does this have to be done prior? What is a normal timeline after a settlement is reached to receive the funds? Wal Mart was the company so I know there is no financial issue causing the delay.

    • fl_litig8r says:

      Usually, your health insurance policy will provide that you have a duty to notify it of any personal injury claim which could result in being compensated for treatment for which it paid. So, the burden is on you to contact them first — not the other way around.

      It is very likely that your health insurer will be able to assert a lien at this time. The “30 day” notice that the attorney refers to is likely a state law which gives a health insurer 30 days to assert it subrogation/reimbursement right after receiving notice of a settlement. If it fails to respond within that time, it can’t assert a lien on the settlement. It may still be able to seek reimbursement. It just cannot seek that reimbursement through a lien on the settlement.

      As to when you should get paid, see this article.

  38. Mel Bee says:

    Recently a family member won a lawsuit and my concern is why after getting all of his monies and paying my brother did he keep out the below even though my family member is paying medicare/medicaid back from the monies paed to him: This information is listed on the settlement statement.
    Medicaid (projected lien)
    Medicare (projected lien)

    Thanks in advance for any information you can provided

    • fl_litig8r says:

      It sounds like the attorney doesn’t have the final lien amounts and is withholding an amount that he knows will be sufficient to satisfy those liens. Medicare and Medicaid are notoriously slow when it comes to providing final lien information, so the lawyer withheld these amounts so that he could distribute most of the money while the lien issue was still unresolved. After he gets the final lien amounts, if they are less than the amounts withheld, he will distribute the rest of the money to your family member.

      When you say that your family member is paying back these liens from his share of the money (money after attorney fees are deducted), I don’t think you mean that he’s cutting a check himself (at least he shouldn’t be). The lawyer holds back an amount sufficient to cover the liens in his trust account. This amount comes from your family member’s share of the settlement. So, it’s not like the liens will be paid twice.

      Just to give you a scenario to help explain the process, say a client settles a case for $100,000.00 and the lawyer knows that Medicare paid $15,000.00 in related medical bills (from either billing records or medicare records). The lawyer expects medicare to reduce its lien by 40% to account for recovery costs (attorney’s fees), but Medicare is dragging its heels in telling the lawyer that its final lien is $9,000.00 ($15,000.00 – 40%). Instead of making the client wait for Medicare to confirm its final lien amount and holding up the entire distribution of the settlement, the attorney withholds the full $15,000.00 as a “projected” or “estimated” lien amount (an amount he knows will cover the lien), and distributes the rest of the money to the client. When, later on, he gets confirmation from Medicare that it will accept the $9,000.00 final amount, he pays them the $9,000.00 and pays the remaining $6,000.00 to the client.

      Doing this saves the client months of waiting for final lien resolution before he gets any money, and protects the attorney, who must ensure that these liens are paid or risk personal liability for them.

  39. George says:

    my daughter’s dog bit my neighbor, long story short as his medical bills came in we paid the total amount, not just what medicare didn’t cover. Is he required to reimburse medicare for what they spent since the cost of the total bill was paid to him?

    Thanks!

    • fl_litig8r says:

      Yes, he would be required to repay medicare. Depending on the amount of the settlement and whether he incurred attorney’s fees, he may not have to pay back the full amount. See this website for more information.

      • George says:

        there was no settlement, we paid him for the bills including what medicare covered, there were no attorney’s fees as none were involved. I am just trying to not commit medicare fraud.

        Thanks.

        • fl_litig8r says:

          I’d be careful in saying that this wasn’t a settlement. What was it? A gift? If that’s the case, then he doesn’t have to pay medicare back.

          I’d get him to sign a release if I were you, and include language that he will indemnify and hold you harmless for any third party medical/medicare/insurance liens he may owe.

          If you don’t have a release, both he and medicare are still free to sue you. “Accord and satisfaction” would be a partial defense against him individually, to the extent of bills paid, but he could always sue for pain and suffering.

          Did you not have homeowners insurance to cover this claim? Or did you not want to use it for some reason?

  40. Karen says:

    What if my insurance company was offered the money for 2 years but never responded and it was then given to me due to statue of limitations time being up. It is a collection agency now all of a sudden harassing me even though it was there for them to take and the second I got it they want it. Is this just a scare tactic?

    • fl_litig8r says:

      If the statute of limitations (which will vary by state) has truly run on the debt claim, you can tell the debt collector to never contact you again (sometimes a certified letter works better) and there’s not a thing it can do about it. Never admit that you owe the debt or make any agreement to repay, as it could restart the statute of limitations.

      Be warned, if the debt is only 2 years old (this is unclear from your question), it’s very unlikely that it is beyond the statute of limitations. In Wisconsin, the statute of limitations for most debts is 6 years, though there may be other lien statutes that apply which would prevent an insurer from collecting if it failed to respond to requests from your lawyer for lien information.

      You should call your old lawyer to ensure that the statute has run, or that there is some other grounds for avoiding repayment. In the meantime, simply telling the collection agent to stop contacting you should stop the harassment — this is all you need to do under the Fair Debt Collection Practices Act, even with a valid debt. Of course, with a valid debt, they can still file a lawsuit.

  41. Ashanti says:

    I was in auto accident in South Carolina but I live in Va.I was hit by a car while crossing the street and tore my ACL and LCL which cause me to go to physical theraphy. Medicaid paid for all my medical care because I did not have the girls insurance information till later. My question is, Is it true that my lawyer has to report my settlement to South Carolina Medicaid instead of Va? How long does it normally take for medicaid to make a decision ?

    • fl_litig8r says:

      Generally, medicaid won’t pay for another state’s resident’s medical treatment. However, there is an exception for emergency care. So, if you received emergency treatment in South Carolina (and you don’t have health insurance), there’s a good chance that South Carolina’s medicaid paid for that. If you received treatment in Virginia, its state medicaid would have paid for that. So, your lawyer would be required to notify both agencies of the settlement to determine what liens they may be asserting. Unfortunately, the timing of these agencies’ responses to lien information requests varies from state to state, and medicaid won’t be bound by state statutes which require insurers to provide lien information within a certain time period (or have their lien deemed waived). It could be a while (maybe months) before the medicaid lien issues are resolved.

      If your case has already settled and this issue is the only thing preventing your lawyer from disbursing money to you, you could ask him to make a partial distribution. Basically, he could hold a certain amount of the settlement in his trust account which would be sure to cover any medicaid liens and distribute the rest of your share to you. After the lien issues are resolved, he would cut you a second check for any amount remaining.

  42. Toni McCall says:

    The date of my accident was 9/2011.My son was driving he was at fault.His car have been paid off.How long does it general take for the case to be settled?Today date is 7/8/2012.

  43. Michael says:

    I was involved in a rear end collision in March 2012. It was the other person’s fault. My medical bills were about $36,000, covered by my health insurance, Cigna. I will have received from both insurance carriers (mine and the at-fault person) a total of $50,000. Do I have to fully reimburse Cigna $36,000?

    • fl_litig8r says:

      As I say in the article, a lot of this depends on whether your health insurance is an ERISA plan and what kind of “make whole” language your policy contains. With most private insurers, you can negotiate down the total repayment even when the law and language work against you. I would expect that they’d be willing to accept a reduction, given the amount of the lien compared to the total settlement amount (I assume you got policy limits from both policies?)

  44. Susan says:

    This is a wonderful website! A attorney who will help injured people with out charging! and also help a lay person in on the behind the scene actions that are never shared with us so we understand if we have a good attorney or not! Are you available for some medical malpractice and pretrial questions? Thank You so much, Susan

    • fl_litig8r says:

      While I’ve done some med mal, it’s not my specialty. Also, state laws regarding med mal (pre-suit procedures, damages caps, etc.) tend to vary widely. That being said, ask away and I’ll see if I can answer.

      P.S. If you like my site, Facebook “likes” and other social sharing is appreciated (share buttons located at the bottom of each article).

  45. Vicki says:

    My husband and I were in a car accident in CA 1/2009, caused by the other driver running a stop sign. Our vehicle was totaled, the driver & 2 passengers ran from the scene to avoid DUI charges. The DA dropped the case. We are pro per, and have 2 offers this week…..with trial next week! The vehicle driver/owners insurance is 30/60. One offer is $30K (vehicle, medical, lost wages @ $36K) and 2nd is $5 ($13K medical & lost wages) but with a newly diagnosed medical complication that will require surgery and 2-3 weeks off work.
    1st question is: Do I have to have approval from my auto insurer (State Farm) to accept the offer of $30? I will file a demand for arbitration for UIM with them. They have a lien for $2000 paid medical. Will they add the vehicle ($9,000)and deductible ($500) to the lien? What is the statute of limitations to file the arbitration? How do I argue/negotiate the 2nd offer at this last moment? We have 1 day and Pre-Trial settlement will be Monday?
    Thank you for any information you can help us with,
    Vicki

    • fl_litig8r says:

      Nothing like an impossibly difficult series of questions about widely unsettled areas of California law to make a Florida’s lawyer’s day miserable. Just so that it doesn’t seem like I’m ignoring you, I’ll start answering your questions with the answers I have so far, and update as I figure out the others. Remember, I’m not a California lawyer (and not your lawyer), and you should do your own research to verify anything I claim here. That being said, I’ll start:

      California law regarding underinsured motorist coverage is an abyss of horribly worded statutory provisions and seemingly simple questions which appear to thusfar have not been answered through caselaw. To start, I will refer you to the nightmare which is California Ins. Code §11580.2, which deals with both uninsured and underinsured coverages. Under this law, you can only recover underinsured (“UIM”) benefits if your UIM coverage exceeds the bodily injury (“BI”) coverage of the tortfeasor, and only to the extent that your UIM exceeds that coverage. So, using your facts, because your tortfeasor has $30k in BI coverage, you need more than that in UIM coverage in order to recover anything. Also, you must deduct the $30k from your stated UIM limits to determine how much you can get. If you have $100k in UIM coverage, you can only recover $70,000.00 (this is a ridiculously stupid law which you guys should change). Assuming you can recover anything, we turn to the statute of limitations issue:

      There is no statute of limitations stated in this statute! Instead, they just list conditions precedent to claims accruing. For UM coverage, the statute gives you 2 years to do one of three things to preserve your claim: (1) file suit against the uninsured motorist; (2) settle your claim for UM benefits; (3) institute arbitration proceedings against the UM carrier to resolve your claim. See California Ins. Code §11580.2(i). What the statute completely fails to address is how long you have to file for arbitration if you rely on option (1). Great drafting, guys! But, wait! That’s not all! This isn’t even the condition precedent one must follow in order to preserve your right to UIM coverage. For that, you need to look at California Ins. Code §11580.2(p)(3), which states:

      This coverage does not apply to any bodily injury until the limits of bodily injury liability policies applicable to all insured motor vehicles causing the injury have been exhausted by payment of judgments or settlements, and proof of the payment is submitted to the insurer providing the underinsured motorist coverage.

      OK, so the condition precedent to bringing an arbitration claim against the UIM carrier is proving that you collected the BI policy limits from the tortfeasor. Again, absolutely nothing is said about how long you have to ask for arbitration after this occurs. I can’t find a case addressing this, either. So, I suggest that you demand arbitration against the UIM carrier as soon as you can after you receive payment of the BI limits. Technically, if you’ve made a claim for UIM benefits, the insurer must give you 30 days written warning before the statute of limitations runs, and the statute of limitations is tolled until you are provided this warning. See California Ins. Code §11580.2(k).

      Do you have to get the UIM carrier’s permission to settle the BI claim? No. According to the California Supreme Court’s Macri case, unlike with UM insurance, UIM insurance does not require the carrier’s permission to settle with the underlying tortfeasor. This is because under California Ins. Code §11580.2(p)(5), the UIM carrier’s subrogation rights are limited to the amount of BI coverage available to the tortfeasor. Because you need to exhaust this coverage to even have a UIM claim, the UIM carrier really has no subrogation rights, so you don’t its permission to settle the BI claim (because the purpose of obtaining permission is to preserve subrogation rights). Simple, right?

      CAUTION: While you do not need to get permission from your insurer to settle with the BI carrier, California Ins. Code §11580.2(p)(6) requires that you give your UIM insurer notice that you filed a lawsuit against the tortfeasor:

      If the insured brings an action against the owner or operator of an underinsured motor vehicle, he or she shall forthwith give to the insurer providing the underinsured motorist coverage a copy of the complaint by personal service or certified mail. All pleadings and depositions shall be made available for copying or copies furnished the insurer, at the insurer’s expense, within a reasonable time.

      Once again, the statute doesn’t set a specific deadline for this notice (aside from “forthwith”) and it doesn’t address the consequence for failure to do so. If you haven’t done this already, I’d do it immediately.

      As to the offset/lien issues for the Med Pay claim, I’m still working on it. It looks like the answer is either: (1) yes, they can deduct the amount of med pay paid from your UIM limits or (2) they can only deduct the amount of Med Pay from your total damages, regardless of coverage, so that if your damages exceed your UIM limits by more than $2,000.00 you may still be able to get the full UIM limits. Still working on this one.

      With respect to the property damage settlement, that should not be lumped into the $30k BI settlement. The tortfeasor should have separate property damage coverage to pay for this. If you take $30k total, including the property damage, you have not exhausted the BI coverage and you can’t seek UIM coverage. Your insurer would be subrogated to the property damage claim to the extent it paid to fix your car and would be entitled to reimbursement for that. You’d be entitled to recover your $500 deductible personally. You may want to involve your own carrier’s collision adjuster to help you separately settle the property damage claim.

      More later. . . FYI, if this was a Florida case, I’d be able to answer your question clearly in less than 5 minutes. California UM/UIM law is ridiculously overcomplicated and confusing.

      • Vicki says:

        Hi ~
        Wow, your responses and detail are amazing and so much appreciated!
        Briefly, my vehicle property damage (totaled/plus deductible) was reimbursed by my State Farm insurance. Are you saying I can/should pursue reimbursement from Allstate (at fault insured)?
        My new question: should my insurance company (State Farm) helped me or represented me in this issue?
        I’m reviewing your responses, and will undoubtedly have more shortly. :)
        Thank you,

        • Vicki says:

          More thoughts~
          The offers are not making any allowances for pain and suffering for either of us….and the new medical issue is an epigastric hernia which his doctor is hesitant to connect directly to the accident in writing due to this type being congenital ….its appearance began only 1-2 months following the accident. He has no previous medical issues, takes no medication, has no time off work, no previous illness.
          I need a good negotiation tactic to use for the last letter of appeal to the insurance company before (or at) Monday’s pre-trial settlement conference. I must ask the judge for a short continuance to get further medical consultation…..how best to phrase this?
          Thanks again,

          • fl_litig8r says:

            Well, considering that California isn’t a no-fault state (where you usually need to prove a permanent injury to collect pain and suffering damages) I don’t know why the insurer isn’t ponying up for those damages.

            I did a quick look for traumatic causes for an epigastric hernia and didn’t find anything. Maybe you could ask the doc whether the hernia, even if not caused by the accident, could have been aggravated by it. At least then your husband could recover for the aggravation of a pre-existing condition.

            I would argue in the motion for continuance that your husband hasn’t reached maximum medical improvement (MMI) with respect to the hernia, and that you need more time for him to treat so that his injuries can be fully evaluated and valued fairly.

            As to negotiation tactics, for your claim you should obviously push the pain and suffering (not just from the accident, but the treatment as well). As for your husband, I’m not sure why they aren’t willing to pay at least for his medical bills (unless they are alleging that the injuries are unrelated to the accident, like the hernia). You know your case better than I do.

        • fl_litig8r says:

          To start with the Med Pay lien issue from your last post, I really can’t find a straight answer. While California Ins. Code 11580.2(e) provides:

          (e) The policy or endorsement added thereto may provide that if the insured has valid and collectible automobile medical payment insurance available to him or her, the damages that the insured shall be entitled to recover from the owner or operator of an uninsured motor vehicle shall be reduced for purposes of uninsured motorist coverage by the amounts paid or due to be paid under the automobile medical payment insurance.

          this provision doesn’t take into account the “made whole” doctrine, which I explained in the context of health insurance in this article. So, if your UIM coverage, combined with the $30,000.00 in BI will not be enough to fully compensate you, you could have an argument that the insurer doesn’t get to reduce your UIM coverage by the $2,000.00 in med pay under the made whole doctrine. If there is enough UIM coverage to fully compensate you, this shouldn’t be an issue.

          On to your property damage issue. You said in your original post “One offer is $30K (vehicle, medical, lost wages @ $36K)”, which I took it to mean that you have $36k in damages for those three items and the insurer is offering $30k to settle all three. If that is the case, then you are not exhausting the BI limits because the tortfeasor’s insurer will pay some of that $30k from its property damage coverage. If you don’t exhaust the BI coverage, you can’t seek UIM coverage. So, don’t take a $30k settlement that includes the car.

          The property damage claim for the car should be handled as a separate issue. Most times, an insurer that paid collision coverage will seek reimbursement from the tortfeasor’s property damage coverage (they will often also seek reimbursement for your deductible, but not always). What I suggest is that you contact the adjuster who handled your collision claim and see what they want to do about the property damage reimbursement. If they won’t deal with it, you should probably try to recover this yourself (to repay your own insurer) to avoid any issues when it comes time to release the tortfeasor (if you release him without getting reimbursement for the collision money, you may be giving your own insurer an argument to void the policy). This is just a CYA measure.

  46. Brian says:

    Hi, I just stumbled onto this website and its amazing to find real answers to insurance questions! I have one that i cant seem to find a straight answer for and I hope you can help. To make a long story short I was was in an accident in Colorado in February this year where the other vehicle lost control and ended up totaling my truck and causing me whiplash and 6 weeks of therapy. The other driver was 100% at fault, charged with careless driving and her insurance admitted 100% liability. I had Medical Payments Coverage with my insurance company and that paid my medical expenses of 4600 dollars. I am in the settlement process with the at fault drivers insurance and they tell me that I have no claim to the medical expenses because they werent paid by me but by my insurance policy. I think that I should be eligible for that because :

    a) my insurance may seek reimbursement from me

    and

    b) I paid for that protection coverage and I dont think it should matter who paid my medical expenses why should the at fault insurance company not have to pay me for damages their client caused? Because i protected myself they dont have to pay out?

    Your advise on this would be greatly appreciated, thank you!

    • fl_litig8r says:

      Under Col. Rev. Stat. 10-4-635(3)(a):

      An insurer providing benefits under medical payments coverage in the amount specified in this section or in a greater amount than the amount specified in this section shall not have a right to recover against an owner, user, or operator of a motor vehicle, or against any person or organization legally responsible for the acts or omissions of such person, in any action for damages for benefits paid under such medical payments coverage. An insurer shall not have a direct cause of action against an alleged tortfeasor for benefits paid under medical payments coverage.

      So, your med pay insurer has no right to reimbursement or subrogation. Sorry to be the bearer of bad news.

      As to your second argument, at best you would be able to recover the premium you paid for the med pay coverage, not the amount your med pay coverage paid out.

  47. Troy says:

    Hello, what a wonderful person you are. Volunteering your time to provide such useful information so we can at least have a fighting chance. I am extremely grateful for all of your insight. If you request it, honestly I won’t mind paying as these are all vital information. So here is my situation. I was involved in an accident back in Nov 2010, the at fault driver basically swerved into my lane on the highway, hit my car and caused some injury to my elbow, neck and back region due to the impact of hitting the car. His insurance already accepted liability. I had hospital visit, PT, radiology that amounts to approximately $29,000 total medical bills thus far and potentially more to come in the future. So far my health insurance have covered the majority of the bill especially with their negotiated adjusted amounts with carriers which brings their payout to about $15,000. Part of my diagnosis so far is a very worrisome herniated disc in my back that have made my life a living hell not just with the pain but also with tingling, twitching and numbness in the lower part of my body. To also be forthcoming, I have had a back injury from sports before in the past that has caused back pain and up until the point of my accident will surface every now and again, but obviously not the almost everyday occurrence that I current experience right now. Both my orthopedist and my neurologist are recommending surgical opinion as we ‘ve tried every possible treatment and nothing has worked thus far. The adjuster called me at a point when I was in serious agony and basically was questioning the validity of my injury. I was very furious and I snapped at him and basically told him to go to hell and never to call me again (probably not the smartest idea). He has made other attempts but I guess I was still furious about his actions that I ignore his calls until recently when I finally wrote him a letter and notified him of my intention to talk about the case soon so it can be evaluated. I also apologized in that letter if I might have came out rude but also reiterated the reason above (him trying to denigrate my injury) as to why I behaved in that manner. With the statute of limitation approaching (2 years), I was considering either settling or be prepping myself through a lawyer to file a lawsuit. So as a result, I have the following questions.

    Question 1: How is my spat with the adjuster likely to affect my case?
    Question 2: With surgical intervention already recommended and with that procedure not having taken place yet, I understand I might be doing myself a disservice by settling before such procedure. My theory is that if a fair offer is made potentially one that factors such procedure then, I will be open to settlement, afterall I have had prior pain in that back area before. What other options do I have here besides settling the case? and if I do, what are the key ingredients that needs to be reflected in my letter to convince the adjuster to factor in such potential procedure beyond what my doctor already included in my medical records?
    Question 3: My ethics probably was a bit compromised when the adjuster called me at that same time asking if I had a pre-existing condition and angrily said “No” due to the way he was coming at me. My whole thought process is basically that why should I disclose something so you can use it as ammunition against me despite the accident significantly worsening my condition. At this point of settlement, do I have a legal right at this point to disclose that information, though I haven’t provided them access to any of my medical records? Can they receive that information elsewhere?
    Question 4: When ‘am including my medical bill amount in my demand letter to compute special expenses, do I include those amounts at the total bill amount or at the adjusted health insurance negotiated amounts? What does Virgina allow? I have also heard about balance billing where a provider could come after you for the difference between the total bill and the adjusted amount. Is this allowable in VA? Assuming it is allowed to include at the total bill amount, do I need to provide justification in my letter that I am doing so based on future subrogation and balance billing claims?
    Question 5: As far as my health insurance coverage, I have had 2 since the accident with the first one covering the bulk of my bills. The first insurer (I no longer use) sent me a letter in the past asking accident related that might be associated with my MRIs etc.. and I basically pointed to the back pain I have had in the past as the recurring issue. The second one wrote recently as well and I basically said the same thing and ever since I haven’t heard back from either. With all the ERISA provisions that I kept reading here and the company’s right, I was wondering if:
    (i) Can I go back to both of them at this point and notify them of the accident and maybe request any liens that might rightfully belong to them and refund to them upon settlement?
    (ii) If they allude to my previous response, what sort of response can I provide to them that would not make me look like deceitful to them but rather as someone who is ready to do the right thing?
    (iii) Since neither have bothered me since, if I was to settle my case, how would they know that I have already settled anyway and come after me even in light of the response I already provided to them?

    • fl_litig8r says:

      (1) Your spat with the adjuster probably won’t be a big deal. You’re not the first irate claimant he’s dealt with. It’s just part of the job. Just try to keep your cool going forward and realize that his job involves asking unpleasant questions. He doesn’t know you personally, so he has no reason to accept everything you say at face value.

      (2) Settling before you reach maximum medical improvement is a big risk. When you are running out of time, the only safe way to preserve your statute of limitations is to file suit, which I really wouldn’t advise doing without a lawyer. If you can, you should have your doctor write out an estimate of the cost of the future surgery and follow-up care to include with your demand letter. If he’s willing (you may need to pay him for this), a written explanation of how the surgery was necessitated by the accident despite the pain being pre-existing would also help. If you were not having the numbness and tingling before, this would be the best angle to take, as surgery is far better at correcting these problems than at improving pain in herniated disc cases.

      (3) The insurer isn’t going to settle with you without viewing your past medical records. It will find out about the prior back condition before it cuts a check. There may be some footprints out there that the insurer can see that would indicate your prior back injury, but unless you give it a release, it shouldn’t be able to get your medical records. Of course, it will demand such a release before it settles. It is far better for you to come clean now and distinguish your current condition from the pre-existing one — you will lose a ton of credibility if you maintain the position that you had no prior back pain.

      (4) I’d provide them with the total bills. You’re going to need to send them the actual billing documentation anyway (they’re not going to take your word for it), so they will see the amounts your insurer paid and the contractual reductions. They will know about your insurer’s subrogation rights, though they may try to BS you about them, seeing that you’re a lay person. As to balance billing in Virginia, this link from Kaiser gives some basic info on that. You can go ahead and claim the whole amount in your demand (along with projections for future care, which are definitely recoverable) and let the insurer tell you that you can only recover the amount paid by your insurer as to past care.

      (5) Telling your insurers that your treatment was purely for pre-existing conditions was not the best move. If you actually file a lawsuit, this representation could be discovered and would clearly hurt your case. It would have been better to let them know that an aggravation occurred due to the accident, so that you could use that later on to settle your lien with them for a reduced amount. If you don’t make a full recovery due to the pre-existing condition, the health insurer should reduce its request accordingly. The right thing to do would be to tell them about the aggravation now and request their lien info. Just play dumb and say that you didn’t think that they were asking about aggravations, only new injuries. Realistically, if you settled today the health insurers may never know that you owe them. However, if you can’t settle and this turns into a lawsuit, you are looking at a huge problem. Your lawyer will have to honor the liens and he will also have to deal with your deception in dealing with both the health insurers and the liability insurer regarding the pre-existing condition. This will make negotiations with all of the insurers a nightmare. I think it would be best to try to clear this issue up now before it progresses further.

      • Troy says:

        Thanks for your response to my questions. I kind of figured I had created some mess as well once I started assimilating a lot of the different information that are out there regarding accident claim settlements. At this point, I ‘ll just take your advise and start putting the necessarily fixes in place particularly with my health insurer. Will update to seek additional advice as the process unfolds. Thanks much for your response to my lengthy questions

  48. nancy says:

    My lawyer has come to me with the person at faults insurance “Final offer”. My total medical bills 17k, which have been paid by my personal insurance, final offer 23k. 8500 to my lawyer. My lawyer telling me that there is currently no lien from my medical insurance, typically the will not come after me to be paid back. I feel very uncomfortable with this. He is telling me that if they do come to me after the settlement that, he, his firm, will fight with them and chances are they will just go away. I do not like his term “chances are”. Is he not being upstanding and approaching my insurance company because he does not want to spend more time on my case? How long does my insurance company have to approach me for repayment?
    Thanks in advance for your input

    • fl_litig8r says:

      It sounds like your lawyer is gambling with your money just so you’ll accept the settlement. It sounds like he hasn’t even notified your health insurer of the settlement, which could extend any applicable statute of limitations which may cut off its claim for reimbursement (keep in mind that this SOL will run from the date of settlement, not the date of your accident, so they’ll have quite some time to discover the settlement and come after you).

      Your lawyer’s offer to defend you if the insurer comes after you doesn’t do you much good if he doesn’t have a valid legal defense to its claim for reimbursement. I’d pin him down on exactly what legal argument he thinks will win the day for you. There are very few viable defenses to ERISA reimbursement claims — even fewer if you’re trying to completely avoid repayment. Unless he offers to indemnify you (pay for you) if your health insurer prevails, his offer of providing a defense is not at all appealing.

      Really, the safest thing for you to do now is to have him notify the insurer and try to negotiate the lien down before you agree to any settlement. If he truly has a defense to the insurer’s claim, why not use it now and avoid the risk of being sued after you’ve spent the settlement money? Once he negotiates the lien down, you’ll better know how much you can afford to settle for.

      Relying on wishful thinking that your insurer will never come after is not a strategy — it’s a recipe for disaster.

  49. Kevin says:

    I won a settlement but Rawlings aetna wants more money than I am getting with their lein. What can I do ? I live in pa but my insurance is through a NYC company

    • fl_litig8r says:

      Your health insurer can’t collect more from you than you receive from your lawsuit. Do you have a lawyer? If so, he should work on getting them to reduce their lien to a reasonable amount. Otherwise, you basically hired a lawyer and went through this trouble just to pay Aetna, which no one in his or her right mind would do. Most of the time, insurers won’t demand so much of the settlement that the plaintiff winds up getting nothing personally. They want to encourage their insureds to sue the third parties that caused the injuries so that they can be repaid, at least in part. If they insist on taking all of the settlement money, they know that word of this will get around the legal community, resulting in fewer of their insureds suing third party tortfeasors and them not getting reimbursed at all on future claims.

  50. Kevin says:

    Thank you for your response. I won 170 aetna wants 62 so after I pay my lawyer I get 47. Would this be allowed? My lawyer says that aetna won’t budge. What should I do? I don’t want to settle for less than what everyone else is getting since I went through all the suffering

    • fl_litig8r says:

      Yes, that distribution would be allowed. I know it seems unfair that you’re getting the lowest share of the settlement, but technically the part that is being paid to Aetna is on your behalf (you got the benefit of the medical treatment it paid for).

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