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.

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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.

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

  1. Melissa says:

    I was in a head on collision this year. Even though the driver of the other car crossed into my lane and hit me, the state cop said the “evidence of debris” showed that I was at fault and gave me the ticket. My lawyer advised taking a plea of “defective vehicle” which I did. I consulted a lawyer about pursuing a lawsuit and he said that because the officer gave me the ticket and because the drivers of the other vehicle were military personnel and would show up in court in their dress-blues that I would probably not have a chance in court. I presented exhaustive evidence of my innocence to my insurance adjuster. The UIM branch determined that I was not liable and awarded me 100K. The other guy’s insurance determined I was liable but has offered to pay 20K which I have not taken yet. My medical bills will be nearly 300K, not to mention my car, lost time at work and pain and suffering. I have medical insurance. There is also a lien from the hospital. So, do I need to pay the hospital out of that 100 K even though they have submitted their 190K bill to my health insurance? Will that 100 K be subject to subrogation from the health insurer? There is a subrogation clause in my contract with my insurer but my state is a made-whole state and the contract says “After you have been fully compensated.” How do I prove that we have not been fully compenstated? What does that mean? Love your website. Thanks for your help.

    • fl_litig8r says:

      If your hospital submitted the bills to your health insurer, and your insurer pays them, you’d only be liable to the hospital for any amount you’re responsible to pay under your health insurance policy, like a co-pay or coinsurance. You’re not responsible for any amounts by which the hospital reduced its bill due to its contractual relationship with your health insurer.

      With respect to the health insurance lien, it sounds like you have a very strong case for not paying them back, due to the language in the policy which practically embraces the made whole rule instead of repudiating it. Proving that you haven’t been fully compensated, when your settlement (so far) doesn’t even equal your medical bills shouldn’t be too tough. If the insurer asserts a claim for reimbursement, you point out their policy provision and show them your medical bills, stating that your claim was clearly worth more than $100,000 (or $120,000 if you take the liability insurer’s offer) based on the medical bills, anticipated future medical care (with past medicals that high, I expect you’ll have some continuing treatment for some time) and pain and suffering typically awarded to plaintiffs with comparable medical bills — throw in the wage loss issue just to pile on, even though it shouldn’t be necessary once they compare your settlement to the medical bills.

      • Melissa says:

        Thank you very much. Those are the conclusions I had come to but wasn’t sure I was correct. Thanks for doing this. It’s very helpful.

  2. Ang says:

    Hi, I have a question. My husband was involved in an auto accident where he had injuries to his neck and spine and we are now ready to submit our demand letter to the insurance. In totaling our health insurance bills, do we claim the amount that we actually paid (times pain and suffering, etc) meaning co-pays after the insurance paid their portion, or do we claim the amount that we were billed by the providers before insurance kicked in and then pay the insurance back the amount that they covered for our medical bills after the settlement comes back – provided we are offered a settlement. Our medical bills are under $10K

    • fl_litig8r says:

      As far as your claim for past medical expenses, you should claim the amount that equals (1) the amount you paid out of pocket + (2) the amount that your health insurer actually paid, not the amount billed. As for what number to use to calculate pain and suffering, you could use the billed amount (just don’t say how you reached your number in the actual demand), as I’d expect you to ask for more than you expect to receive in your initial demand, anyway. If you haven’t already, you may want to check out my three articles on handling your own personal injury claim. I cover demand letters and other things in them.

  3. Marcia says:

    I was hit from behind while stopped at a red light. The insurance company paid me 642.00 for the damage to my car. I was seen at the E.R and was told I had whiplash .. I was in so much pain I went to my family doctor. My family doctor order a Mri , and some physical therapy.. the Mri, showed some signs of bulging disk .. So my family doctor sent me to a Neurologist , the Neurologist said I also had a pinched nerve and that i needed to get sent to a Orthopedic Pain Management doctor to get steroid shots and future care , so I am under 3 different doctors care. My family doctor said more than likey I will need surgery. I have been on Pain Meds, and Muscle Relaxers and nothing is working. The accident happened in Nov 2013 and it is July 2014 and the insurance adjuster knows I am not done with the medical care and he called and offered me 1,000 .. He said that it was a low impact and he doesnt see how my pain should still be, and that the mri showed bulging disk cause of age..I told him I would think about it and get back with him. I called him back told him that 1,000 would not even cover medical bills or the 9 months I have been in pain and that my future medical bills and surgery . I told him also that i could counter offer but i am sure he would turn it down , so i think i will sit on it awhile and speak with a lawyer.. He called me back and i let it go to voice mail.. He said He would like me to offer a counter offer that it would not hurt anything and that he wanted to be fair.. so please get back with him with one.. He called my claim a unusual claim seeing I am in so much pain and it was in his words a low impact.. the impact was not low, it threw me forward and back and broke my upper also broke the glove box .I am preparing a demand letter.. as for medical bills I am on medicaid and they are handling my bills and the insurance guy knows that, my question is does he only pay what my insurance company pays . The bills have write off and discounts cause of my insurance .. does he only pay what they paid or does he pay all including before discounts and write offs . I live in Oklahoma and as far as I am thinking since the person that hit me has insurance with Traders Insurance I am sure it is a bare min insurance policy.. 25,000 I am thinking not sure what she has.. can i ask the insurance company what her policy is..

    • fl_litig8r says:

      Oklahoma used to be one of those states that allowed you to recover the full amount of medical bills incurred in a personal injury claim, regardless of any reduction made by a health insurer or the actual amount the insurer paid. Unfortunately, it passed a statute a few years ago that completely changed this rule, 12 O.S. §3009.1, which clearly states that for all civil cases for personal injury filed after November 1, 2011, the plaintiff can only recover the “actual amounts paid” for medical treatment. Therefore, as long as your medical providers are accepting medicaid’s reduced payments, you can only claim the amounts medicaid actually paid (and any out-of-pocket expenses).

      As to your question about whether the insurer must disclose its policy limits, in Oklahoma the answer is no. If you were to file a lawsuit against the tortfeasor, the policy limits would be discoverable thanks to a 1994 Oklahoma Supreme Court case, Tuller v. Shallcross (before this case, Oklahoma plaintiffs couldn’t even find out the defendant’s policy limits via discovery), but there is no Oklahoma law requiring a liability insurer to disclose its limits before a lawsuit is filed. You can always ask them — they just don’t have to answer.

      You probably already considered this, but out of an abundance of caution I’ll remind you that if you have UM/UIM insurance, you could always make a claim against your own insurer as well, if the tortfeasor’s policy limits are inadequate. If you have UIM insurance limits which exceed the minimum bodily injury liability limits ($25,000 in Oklahoma, as you seem to know), you should notify your own insurer about your claim against the tortfeasor, and gets its consent to settle if the tortfeasor tenders its inadequate policy limits. Failure to do so may waive your ability to bring a UIM claim.

  4. Retta says:

    Hello and I’m not sure if you can answer my question but I wanted to ask that if someone isn’t qualified for medicaid before an auto accident, can they qualify for the Medically Needy Spend Down version to help pay the medical bills as a result of the accident? I understand that it can help if one has excess medical bills that can’t be paid out of pocket and it can assist as long as the amount of the bills are over a set amount such as for example 1500.00 for a particular time frame of certain months. I had applied for SSDI due to some other issues before the accident but my spouse’s income disqualifies me for medicaid. He already is receiving SSDI. I have an attorney that issues liens so should I leave it at that or try to get the state’s help for the bills since they are pending for payment?

    • fl_litig8r says:

      You raise a really interesting question, one which I am unfortunately not able to definitively answer. Because states have different methods of determining qualification for medicaid under medically needy spend-down programs, and it’s not clear that you’d meet the requirements for this program prior to proving your disability anyway, it’s tough to say whether your accident-related medical expenses will be sufficient to qualify you for medicaid benefits. One thing that works in your favor is that the medical expenses need only be incurred (and not necessarily paid) during the spend-down budget period, so that obtaining your care under a letter of protection shouldn’t preclude these expenses from being counted towards the spend-down requirements.

      In short, I think you may be on to something and it’s certainly worth a shot to try to become medicaid-eligible using the spend-down method. If you qualify and medicaid winds up paying the bills you’d otherwise have paid via a letter of protection, it should benefit you because those bills will be reduced to medicaid’s payment level. So, you’ll wind up with a medicaid lien for the amounts it paid, but that’s going to be lower than the full bill amount, which is what you’d pay under a letter of protection. Even though doctors will often reduce their bills when settling a letter of protection, it would likely not be nearly as low as the amount medicaid would reduce them to.

      For others who may be interested in learning more about the Medicaid Medically Needy Spend-Down program, this article (pdf warning) provides a very good overview. Don’t be disappointed if there are parts that seem confusing or terms you don’t understand — it’s a very complicated program with state variations, so even lawyers have trouble navigating it.

  5. cheche says:

    first of all, I would like to tell you that your website is really a big help on advices. I learned a lot on every case or questions brought up by victims like me. this time, my query is about my aunt. she was into a slip and fall accident, happened inside target. this was about aug ’12. she stepped on a clear substance, fell I think on her right side. there was no sign anywhere of caution that liquid. an employee gave her ice pack. she did an incident report, acknowledging there was really a clear substance on the floor. my aunt is a retired senior citizen. she was wearing a proper pair of shoes when it happened. days later, she developed a large bruise on the part where she landed on the floor. she had a hard time walking and of course, it hurt. she went to hire a lawyer to look into the situation. in short, a case was created. her lawyer referred her to therapy. she was doing therapy for weeks until she felt better. the therapist released her and all paper works were done. she brought them to the lawyer. the statute of limitation is nearing, aug ’14. and yet, no settlement was exchanged between her lawyer and target’s insurance company. in fact, no settlement offer hasn’t been started at all. medicare has already sent a letter to her lawyer ( that was dated june ’13) that up to date, medicare has not paid for bills related to the accident. but target’s insurance, replied that the letter medicare supplied was not enough. so my aunt was advised by her lawyer to go to social security office to acquire a written documentation stating that it (ssa) has not paid any medical bill related to the accident. my aunt went there 3x with 3 different employees, saying the same answer: they don’t take care of medical bills or will not issue any written documentation because they don’t deal with those bills. period. they only take care of retiree benefits. my question on this part is: is it really the social security or the medicare? because according to my aunt’s lawyer, this is what the insurance adjuster is looking for. is this really true? my aunt is getting frustrated because she feels that her lawyer is telling her to do something that is impossible to accomplish. the last ssa employee told her to get a hold of the medicare as it deals with medical. but her lawyer’s secretary keeps insisting it’s the social security. so, my aunt is caught in the middle. secretary said her case is not really worth pursuing to court as it may cause more expenses to a low settlement amount. she even said, her case should have been dropped 6 months after filing because it won’t lead them anywhere. if that is the case, why did her lawyer wait till statute of limitation is in a month from now, to tell her this? so now, my aunt will call medicare tomorrow to furnish her lawyer a letter again stating that medicare has not paid her medical bills up to date. but her lawyer is trying to come up to settle before this month ends. I know this letter is sooo long. but please advise. where is the insurance adjuster leading my aunt and her lawyer into? does social security meddle on this or the medicare? my aunt is 76 years old and she is so confused. that’s why she hired a lawyer. thank you so much and hoping for a speedy reply. have a good day.

    • fl_litig8r says:

      Your aunt only needs to obtain the lien information from Medicare, through what is known as a conditional payment letter. Why her lawyer would send her to the SSA to get this information is beyond me, as they don’t deal with these issues. The new Medicare homepage for information regarding liens is here. Unfortunately, it’s not as user-friendly as the former site.

      If her lawyer has already obtained a conditional payment letter from Medicare stating that none of her accident-related treatment was paid for by Medicare, and this letter was dated after her last treatment was billed, that is enough. She doesn’t need anything else, and any claim otherwise is her being given the runaround by either Target, her lawyer, or both.

      I have to say that it sounds like the only person shooting straight with your aunt is the secretary. Her case sounds too small to be worthwhile to an attorney, and there may even be questions as to whether Target is liable at all. They would only be liable for the clear substance on the floor if an employee caused it or if it was there long enough that they should have reasonably discovered it prior to your aunt’s slip. If some other customer spills something on the floor, and your aunt slips on it 5 minutes later, it’s likely that Target wouldn’t be liable — unless you can show that some employee had seen the spill and done nothing in the interim.

      I get the feeling that this is a case the lawyer should have dropped a long time ago, but he kept putting it off and now that the statute’s about to run, he’s stuck because he doesn’t want to face an ethical problem for dropping a case right before the statute runs. At least this should motivate him to try to get something for your aunt and make her go away (which is better than just dropping her case and getting her nothing). If he’s sending her off to the SSA to get Medicare lien information, though, it may be so he can trump up some BS reason as to why his inability to settle was her fault. The SSA thing is a total wild goose chase.

  6. Gienevieve Appel says:

    I was in a car accident 3/18/13 rear ended. sought ER treatment took 4 hours before anyone saw me. Requested to go home, they told me to come back if my neck,headache or anything felt worse. I returned early morning 3/19/13 because I was in much pain!!! was told not to get an attorney by my auto insurance because the other side had accepted full responsibility for the accident. My health insurer paid all the bills from both dates except one from 3/19/14 over $9000.00. I filled out their forms requesting more information of MVA and set it back several times. Meanwhile they were denying claim, hospital put a lien in my name for the entire amount. Settlement time came by the other parties auto insurance and was told that there was an existing lien “i didnt know until them” the settlement was a little of $11,000.00 but by the time they paid the lien directly I was left with a little of $2,000.00. Contacted my health insurer many times through the year only to receive a letter in May 2014 stating that my claim was denied again for untimely filing. I appealed it in writing and followed up week by week. I spoke with the supervisory of the escalated department who stated that I should be reimbursed some type of money because the hospital attended was in network and they would only have paid the contracted amount and stated that the hospital would owe me money in addition. I was told today that it is being denied again because my settlement amount needed to pay the entire claim as it stood. In the past employment history of claims insurance department, we more than oftened paid the claims and our subrogation department would set out to recoup the amount of payment they paid but under the contracted amount. (ex. hospital bill 10,000.00 In-Network provider contract rate allowable -4800.00 and $5200.00 the hospital wrote off because they were in network. Subrogation department would set in and only go after the $4800.00 they paid on the claim.) my health insurer’s are stating that they are treating my case as if I had no coverage because it was a settlement. This is wrong. I had to pay out of the settlement money which is pretty much out of my pocket in order to see the measely $2,000.00. I live in Aurora, CO and the insurance carrier is Meritain a network of Aetna and yes they are ERISA. What do I need to do to get them to return a portion of monies I feel is due to me.

    • fl_litig8r says:

      You need to speak to an ERISA health insurance lawyer ASAP. ERISA claims have very tight deadlines both for initial claims and appeals, so he or she would need to see if you met those deadlines and preserved your right to sue. This is a pretty complicated case involving a relatively small sum (by lawsuit standards), because it involves not only having your insurer agree to pay the denied claim, but getting the hospital to refund the payment and you then reimbursing the health insurer for the reduced amount. ERISA lawyers are pretty rare as it is, especially for health insurance claims (many just do disability insurance), so finding one willing to take a case with so little money at stake may be a challenge. While ERISA allows prevailing plaintiffs to recover attorney fees in addition to the disputed amount, they aren’t automatically awarded as they are in certain other types of claims, like civil rights or employment discrimination, so lawyers may be reluctant to take your case if they think they may only be entitled to a percentage of the recovery. If fees aren’t awarded, you may wind up paying the same amount after the ERISA lawyer takes his or her percentage, which any potential lawyer would also want to avoid.

      The only thing I can recommend is to hit the phones and hope you get lucky finding an ERISA lawyer willing to take your case.

  7. Harry says:

    I was in motorcycle accident last May 2012 in Los Angeles, bike was totaled and just got the settlement this Feb. 2014. Blueshield insurance, I acquired from employment paid my hospital bill, the bill was 26,000 less discount of 21,000, my insurance paid 4,000 and I paid 1,300 as deductible. According to my lawyer on March 2014, Blueshield put lien to the case after the case was settled, I gave all the power to my lawyer and found out that he missed this one, when I received a letter from Rawlings Company demanding 21,000 to be paid in full in 15 day. I contacted my lawyer but he told me that he cannot represent me because my case was already closed. Out of settlement amount 25k, I received a check amounting 8k not even enough to all the loss wages and expenses it incurred on me and my lawyer gets about 10k and the rest to hospital and therapy expense. I don’t have the money anymore and paid all my bills. How can I proceed from here? Why my insurance asking for the discount amount from the hospital bill where the actual payment is only 4k? How can I dispute this? Will this ruin my credit or there will be wage garnishment? Please help.

    • fl_litig8r says:

      I’m a bit confused as to exactly what is going on here. If your insurer paid a $26,000 hospital bill with $4,000 in cash and $21,000 in contractual reductions (with you paying the rest as a deductible), then the hospital shouldn’t be able to seek that $21,000 from you. This is a practice known as “balance billing”, which California doesn’t allow even in cases of emergency care. If the $21,000 wasn’t a contractual reduction, but was the health insurer reducing the bill unilaterally because it claimed the charges were unreasonable (which I can see happening in the case of emergency care from an out-of-network facility), then the hospital’s recourse should be only against the health insurer, as discussed in the article I just cited.

      Your personal injury lawyer really should have helped you with this issue. Even though handling lien disputes is not a mandatory part of a personal injury case, most decent lawyers do it anyway. At this point, it may help to contact a lawyer specializing in debtor/creditor law, as the hospital may be engaging in unlawful collection activities, especially if they are seeking recovery from you on a bill that the California Supreme Court has already said they can only seek from your insurer.

      It would help to know if the care provided was emergency care, whether the hospital was an out-of-network facility and specifically what your medical insurance statement said was the reason for the $21,000 in reductions.

  8. pam says:

    I was in an accident June of 2013
    my medical bills total over 57k most has been paid for by either my auto ins or my medical ins. (all but about 1000.00)
    i have an atty, when the settlement offer comes in do i figure on paying my ins out of those monies?
    or is that something the atty works out and includes before my amount?

    • fl_litig8r says:

      When your lawyer passes a settlement offer on to you, he’s telling you the gross offer. Any attorney’s fees, costs and medical liens will be deducted from that amount, so you should take that into account before accepting an offer. Your lawyer should be able to give you at least a good estimate of his costs and your liens if you ask him. He may not be able to give you an exact number, because costs keep accumulating during the settlement process and your insurer may not be willing to negotiate its lien before a settlement is reached (leaving your lawyer to guess what kind of reduction they’ll offer).

  9. margo says:

    hit and run accident, owner of car has minimal insurance 30,000 medical coverage, medical bills 94,000 pd by health insurance ,my bills at this point about 8,000 plus lost wages 8,500, school tution lost 3,000 suffer intense pain and trama, broken forearm 5 fractures plus broken wrist, broken fingers head concusion. Health insurance subrogation asking info.about the accident Do I respond first or negosciate for limited recovery of 30,000. Does fighting for your right to partial recovery of loses affect the insurance relationship as to how they respond to covering my health issues in future

    • fl_litig8r says:

      It might help to talk to the subrogation department before you settle. Right now, you have a little bit of leverage to get them to reduce their claim, because you can always just walk away from the personal injury claim and force them to try to make a recovery without your help. If they insist on taking the whole amount of the potential settlement, you have no reason to pursue that claim at all.

      Negotiating the lien down with your health insurer won’t affect your future coverage with them. Not negotiating with them and instead, taking and spending the settlement money before they can collect from you would. They expect you to try to negotiate down their lien, so they won’t hold it against you moving forward if you ask for a big reduction. They know that you’re getting screwed by the inadequate policy limits of the at-fault individual, too, so it’s not like they think you’re trying to pull a fast one.

  10. Nadine Davis says:

    Thank you for this very informative blog. It has cleared up a lot of information. I hate asking my lawyer a million questions because I know he is extremely busy. The last time I spoke with him about a month ago he told me that our case had to be cleared through medicaid but they only had a 30% hold on the funds and normally is there was any issues that there would be 100% hold and that we could take a loan if we needed to but it would be soon to clear. I know you cannot make a precise determination but in your experience how long would you assume that we have left to wait?

    • fl_litig8r says:

      I really can’t say how long resolving your medicaid lien will take. It varies from state to state (and even varies within states), though under optimal conditions you’re looking at a month or two. I’m not sure what your lawyer meant by a “30% hold on the funds”. If he means that the maximum amount of the medicaid lien (before any possible reductions) is 30% of the total settlement amount, then he should be able to hold back that amount in the trust account and distribute what is left to you (after his fees, costs and any other medical liens are accounted for). He can then distribute any amount left over after the medicaid lien is fully resolved. A partial distribution of your settlement while the lien is being resolved would be far superior to taking out a lawsuit loan.

  11. Confused G says:

    Often the claim goes through an attorney and therefore the PIP claim is sent directly to the lawyer of the patient; Can you explain me why?

    • fl_litig8r says:

      Your name should be “Confusing G”, because you’ve totally confused me with this question. For most of my clients’ PIP claims, the insurer pays the medical provider directly. I only get involved when the PIP insurer denies a claim. If the client pays the bill out of pocket while we fight with the PIP carrier, then the PIP carrier can either send the money through me when they agree to pay or directly to the client. It doesn’t really matter to me, because I don’t take my fee from the client’s PIP money anyway — when I win a PIP claim, the insurer has to pay my fee separately based on the number of hours I’ve put into litigating the claim. I don’t know if lawyers in other states with other PIP laws do things differently.

  12. Trina says:

    Hello. I’ve been reading most of these comments trying to find answers to my questions. I live in CA. My daughter was in a car collision in March 2014. She was a passenger in the vehicle which was 100% negligent. The vehicle was insured (State Farm). Policy limit for BI is 15/30. I don’t know what the single policy limits are. The driver was also insured. Driver won’t give up her insurance info. There are 7 parties involved. My daughter’s medical bills totaled $49,000 plus medical air of $5,500. Her health insurance is Medicaid. As for following up with a PCP, it’s difficult. My daughter’s physician’s office policy is not allowed to bill Medicaid for accident related injuries. I have to pay out of pocket for her doctor visits, exams, medication or whatever else they do, which I cannot afford. Medicaid has a lien. There haven’t been any talks of a settlement being reached because we’re waiting for the final lien and other people involved.

    My question(s). Would my daughter’s compensation be close to nothing? Would it only be the single policy limit? How can I find out how much that may be? Everything will be shared amongst 6 or 7 people. What can be done? If I read correctly on previous comments, Medicaid will be reimbursed for what is paid not billed, correct? I just feel like my daughter won’t be properly compensated.

    UPDATE: I just received a final bill. The insurance paid for everything. So it was paid based on the bill. Now what’s next? Should I be expecting a call from the adjuster with a settlement?

    • fl_litig8r says:

      With respect to the 15/30 BI coverage for the vehicle’s owner, the absolute most your daughter would be able to recover is $15,000. The first number in a split-limit policy is the per person limit, which is a cap on the coverage each person who suffers injury in an accident can claim. The second number is the per accident limit, which is a cap on the total amount of coverage that will be paid to everyone injured in a single accident combined. In this case, with 6-7 people suffering injuries, there’s a good chance that the per accident limit will come into play as well, further lowering the amount your daughter is offered by State Farm.

      Because the per accident limit will likely be a factor, I’d suggest not waiting for State Farm to contact you. You’re going to be competing with all the other injured people for a piece of that $30,000 coverage (with the most any one person can get being capped at $15,000), so it may come down to the early bird catching the worm, or at least a bigger piece of the worm. While State Farm will no doubt try to settle with everyone injured in the accident, lobbying early for your daughter’s share of the coverage may get her more than just sitting back and waiting to see what they eventually offer.

      If the owner’s insurance were the only coverage available, then sadly your daughter would probably ultimately wind up with nothing or close to nothing due to the inadequate BI coverage and her substantial medicaid lien. How much she may ultimately recover comes down to the amount of the driver’s BI coverage (and if your daughter had UIM coverage, that would pay as well).

      I’m a bit confused by your update about “the insurance paid for everything”. Whose insurance paid, and how much? Did they only pay the bills of the doctor who wouldn’t take medicaid? Did they pay back medicaid as well?

  13. Debbie says:

    I live in Nc. Over 3 years ago I was driving home from a doctors appoint when my car was t-boned totaling it.The person pulled out from the right side road into the main st and at the same time a truck that was excessively speeding and weaving in and out of traffic hit their car sending her into the side of my car. I had my foot on the brake and still I was plowed several feet before it stopped.I was taken to the the Er but was released after several hours.The doctor scaned my head as it hit the window and broke the glass. My arm was numb and I had problems moving it. It was very numb.
    I had no car and though the other 2 were found at fault for speeding and illegal turn, their issuance wouldn’t pay for a rental car . My insurance paid it. SO I got an attorney right away since I had to work then.
    I grew worse over the days. I went to a Chiropractor who had their doctor also. After several days of being in such pain. I went to see my regular doctor. I had also contracted a serious kidney infection. I believe this was from the accident also. My insides felt like they were almost torn loss. I hurt horribly. My doctor checked me and agreed my internal organs were most likely shifted in the accident and this was the pain also. I was gave antibiotics and pain meds and continued Physically therapy and was sent to an orthopedics because my arm had became hard to move. Later I had surgery and more physical therapy. I regained 65% use of my arm.
    The settlement happened with one person only which was very low since she was 19 and had bad insurance. Seems 17,000 was put in escrow and after the attorney received their part and I received the least of all. $5,000.
    I paid 20% every doctors visit. My insurance which is Tricare made the payments for the rest.
    It’s been over 3 yrs, tricare was sent a letter but never sent a lien for repayment. The statue of limitation has been up and I was told the escrow should go to me since they never applied.Now I ma told I have to wait another 3 yrs. For a total of 6 yrs. I wasn’t told this in the begining. My attorney says he cant release it now till 6 yrs are up because of Nc state law on Torque considering a federal insurance.
    I have tried to find this Torque law and anything that might give me some insight to this problem. Is this true. Federal law says 3 yrs and now he says State says 6 yrs because its a government insurance . He cant release the escrow to me because of this for another 3 yrs.
    That he could take it to court but chances I would loose and tricare could ask for repayment for the next 3 yrs or sue him and me?
    Is this true. After reading your prior questions I dont see anything asking about the Torque law. Can you please tell me about this?

    • fl_litig8r says:

      Your lawyer was referring to “tort” law, not “Torque” law, which explains why you weren’t able to find anything about it. Why tort law is relevant to the question relates to the statute of limitations applicable to claims brought by Tricare pursuant to the Federal Medical Care Recovery Act (FMCRA). The FMCRA authorizes the government to bring claims against a tortfeasor (either by separate action or through intervention in a plaintiff’s claim) when a plaintiff receives accident-related treatment covered by Tricare.

      Here’s where the 3-year/6-year statute of limitations issue comes into play. Under 28 U.S.C. §2415, the statute which sets the statute of limitations for FMCRA claims, there are two potentially relevant provisions. Subsection (a) provides for a 6-year statute of limitations for any government claim for money damages “which is founded upon any contract express or implied in law or fact”. Subsection (b) provides for a 3-year statute of limitations for a claim “which is founded upon a tort”.

      If the government were to sue a tortfeasor directly for causing the plaintiff to incur Tricare-paid medical expenses, there’s no doubt that it would be subject to the 3-year statute of limitations set forth in Subsection (b), because the government essentially steps into the shoes of the plaintiff to bring such a claim, and the plaintiff’s claim against the tortfeasor is clearly “founded upon a tort”. Therefore, the tortfeasor in your case is now free and clear from any claim by Tricare, if for some reason Tricare (technically, the U.S.A.) didn’t intervene in your lawsuit or bring its own claim.

      However, when the government seeks reimbursement from the plaintiff herself, it’s less clear whether this would be a claim “founded upon a tort”, or in fact, whether it is a legitimate claim at all. While the underlying action from which the money was derived was founded upon a tort, the government’s claim for reimbursement from the plaintiff derives purely from a settlement agreement (a contract) with the tortfeasor, assuming that settlement agreement requires the plaintiff to satisfy the the government’s lien. If the settlement agreement contains such a provision, then the government’s claim arises from a contract, and the 6-year statute of limitations applies, as stated in Cockerham v. Garvin. If the settlement agreement does not specifically require that the plaintiff reimburse the government, then the government has no legal right to seek reimbursement from the plaintiff’s settlement at all, as stated in Holbrook v. Andersen Corp.

      The question you need to answer is whether your settlement agreement with the tortfeasor expressly required that you repay the government’s lien. It’s not enough that the agreement required that you would indemnify the tortfeasor against any lienholder’s claim — it must state that you have to pay the lien for the government to have a claim for reimbursement against you. If your settlement agreement contains a provision requiring you to repay the government lien, then your lawyer is probably right that you need to wait 6 years for the statute of limitations to run out on Tricare’s claim. If your settlement agreement contains no such provision, then Tricare likely has no claim against the money and there’s no point in waiting any longer. The tortfeasor is now beyond the 3-year statute of limitations, so Tricare can’t sue him or her and put you at risk for an indemnity claim.

      Before marching off to your lawyer demanding that he pay now, it should be noted that the caselaw in this area is pretty thin. The cases I cited are not from your federal circuit (the Fourth) and are technically not binding on your federal courts. In theory, they could reject the opinions of both cases and make their own interpretation of how FMCRA reimbursement works when a plaintiff has settled in a case where the government failed to intervene. Therefore, there is risk involved in accepting these cases as “the law”. I don’t have access to professional-level caselaw research resources for the Fourth Circuit (I’m in the Eleventh, myself), but my informal research has come up empty on these issues. Your lawyer may have specific Fourth Circuit authority on this issue which runs contrary to the cases I’ve mentioned. Even if he doesn’t, I can understand if he is hesitant to accept either or both of these cases as being sufficient security to disburse the settlement money. Therefore, after you’ve read these cases, I’d suggest talking to him about why he feels the 6-year statute of limitations is an issue. If your settlement agreement required reimbursement of Tricare, then he’s probably right. If not, then find out what authority makes him feel like the government has any right to reimbursement from you at all.

      Don’t be confrontational. I didn’t give you these cases because I think your lawyer is wrong. He may be right, but I wanted to educate you on the caselaw out there so that you could discuss this issue with him from a position of knowledge.

  14. Frank Lobb says:

    Your comment on paying back a health insurer really misses the mark. Because essentially every health care provider as signed a managed-care provider contract with an enrollee’s insurer, providers have voluntarily surrendered their right to bill an enrollee via a state mandated Enrollee Hold Harmless clause that is binding in both contract and law. Furthermore, the utilization review clause in these contracts bars providers from billing enrollees when coverage is retroactively denied. Furthermore, there is no contract between an enrollee and an insurer so there can be no applicable clause requiring and enrollee to return monies the insurer has paid to a provider. Remember insurers pay providers not enrollees as a matter of contract and law . Even more to the point, the issues I have raised are so secretive and sensitive to the insurance industry’s power over our health care system that they can’t afford to have them discussed publically. —- You have my e-mail address if you are interested in discussing the subject.

    • fl_litig8r says:

      It’s your comment that totally misses the mark. First, my article isn’t about balance billing, so your claim that I got that part wrong is entirely misplaced. Balance billing is irrelevant to the issue at hand. Second, your statement that “there is no contract between an enrollee and an insurer” is patently false. Each insured is a party to a contract with an insurer, even in a group plan setting, and they are bound by the contract terms which practically always require repayment when the insured makes a recovery from an at-fault third party. There is tons of caselaw on this issue in both the ERISA and non-ERISA context.

      You really don’t know what you’re talking about, and the second-to-last sentence you wrote makes you sound like a wacky conspiracy theorist, like one of those guys who claims that you don’t have to pay federal income taxes because they’re unconstitutional. I hope you haven’t given this bogus advice to anyone who might think it is true.

  15. Staci says:

    Hi there, I live in CA and was rear-ended 2/21/14 while at a complete stop. The other driver (proven on the police report) was on her cell phone and was going at an excessive speed, but never cited for either. Paramedics & police were called (I had an extremely elevated heart rate), but opted to have my husband take me to the ER once the police report was taken. ER doctor only gave me a once over and said I probably had whiplash. The accident happened on a Friday; felt pretty banged up the following days and subsequently saw a physiatrist. I got an X-ray, MRI, had bulging discs (amongst many other things), physical therapy and was advised to receive steroid injections to my back and neck. I was under excruciating pain (taking muscle relaxers, pain killers (morphine and other extreme meds) for months; wrote a diary. I have a 1 year old that I couldn’t even lift or carry. We started to lose a lot of closeness and it was emotionally depressing.
    I have yet to contact the other insurance carrier (I know I have a year, but I was waiting to see how long I’d be feeling this debilitating pain). They are aware that I was injured and have accepted full fault. My auto insurance company has been very unwilling to help me in any way because I don’t have BI on my policy; which I wasn’t aware of till this happened. I have my medical insurance via Kaiser Permanente and they were quick to have their medical subrogation firm, Rawlings Company call me and ask full details of my accident so they can be reimbursed for my medical treatment. I suppose my first step is to find out how much the insurance lien is?
    I’m finally starting to feel better, so I am going to call the other insurance company (fly by night, Freeway Insurance) and put together a demand letter. They have already paid for all the repairs on my car and paid for my “upgrade” rental in full since it was comparable to my car. So, I guess my question is how much should I be asking for? With co-pays, prescriptions and needed help aids, I believe it’s a little under $2k, not much. (+) I had to use several sick and vacation days for doctor appointments, procedures and bed rest, and I calculated that time at $3k. Should I assume Rawlings will disclose the amount of my insurance lien? (+) If so, do I add the entire insurance lien amount? What would you suggest for the pain and suffering multiplier…3-4? My doctors aren’t sure I will need another injection to my back, but at this point, I’m 3 months pregnant and cannot undergo any procedure or medication…this shouldn’t be a factor in my case…yes, and/or they don’t need to know this?

    • fl_litig8r says:

      You definitely need to find out the amount of Kaiser’s lien before you negotiate any settlement, so that would be the first thing I would do. They will tell you the amount. There’s no reason for them to keep it secret — they want to be repaid. As far as how much to ask for, I refer you to this article. You should also see my three-part article on settling your own case, which includes basic instructions for generating a demand package, starting here.

      Your pregnancy shouldn’t really be a factor, aside from using it to explain a gap in treatment/medication down the road, if necessary. I don’t see a need to volunteer it at this time.

      • Staci says:

        I mailed my demand letter and all supporting documentation to the other insurance company requesting $50k for damages/med/pain/suffering and they came back in 1 week with a counter of $15k. Also, Kaiser’s subrogation company came back to me with a larger lien within the same week of speaking to them as well! Claim they missed a few treatments and my lien is now $6300…$2k more than their previous itemized bill 4 months ago!! Can they do this?! I was furious! Also, do I “assume” the other party has CA state minimum in BI if I was offered the $15k? I know there is no way of finding out their limits unless I open a lawsuit again them…I’m at a loss…how do I even proceed? My demand letter was excellent and I know my case is worth much more…what do you advise?
        Thanks again for your help!

        • fl_litig8r says:

          Kaiser can revise their lien amount, even though it’s a pretty shitty thing to do after you’ve already made a demand based on their representation. However, be aware that California has some very favorable (to plaintiffs) health insurance lien laws, like Ca. Civil Code § 3040, which reduces the amount health insurers can claim for capitated charges (like Kaiser’s often are) to 80%, and limiting the total amount of the lien to 1/2 of the settlement in cases where a plaintiff did not retain an attorney (it’s 1/3 in cases where they did hire an attorney). This article has a more useful plain English explanation of the statute, as well as some general tips for lien reduction in California. Of course, given the lien amount and the amount of your settlement offer, Kaiser is already below the 50% threshold. Still, the 80% reduction for capitated charges and the make whole doctrine may still be useful in negotiating their number down.

          I can’t say whether the other driver likely has the $15,000 California BI minimum or if the insurer offering that amount is just coincidence. I would think that the insurer would be willing to tell you if asked, just because it creates more incentive for you to take the offer and not sue their insured if you know that they’re offering policy limits. If they won’t, then the only way to find out for sure is to sue their insured. You could try countering their $15,000 offer and seeing if they offer anything above it. If they stick to the $15,000, it certainly increases the odds that that is their policy limit.

          • Staci says:

            I did not send a counteroffer to the insurance company, but I did send a letter standing by my original demand of $50,000. I received a reply within the week of the exact letter that they had originally sent! Nothing changed, no explanation, nothing! The same duplicate letter offering $15,000. I’m at a loss. I just received paperwork from them this week to sign off on their offer…this is wrong. Do you suggest I call the adjuster & speak to her directly & ask…what? Not sure what I should say & how to go about my next step. $15,000 seems like such a slap in the face! Thanks for you advice!

          • fl_litig8r says:

            They may have just resent the same letter because you didn’t change your demand. You initially asked for $50,000 and they countered at $15,000. If you send them another demand asking for the same amount, regardless of whether you said different things in your letter, you increase the odds of them responding with their same offer, too. It may be as you initially suspected that the driver only has $15,000 in coverage, so they’ll never offer more. You won’t find out by demanding the same amount that generated the $15,000 offer in the first place.

            If their driver really only has $15,000 in coverage, they have no real incentive to bother writing a different letter to you. Once they’ve offered their policy limits, they’ve pretty much protected themselves from a bad faith claim. It may be worth it to call the adjuster if for no other reason than to see if she’ll say whether the $15,000 is policy limits. Just level with her and say that you don’t want to bother hiring a lawyer (and they sure don’t want to pay one of their own) to sue their insured if they’re offering policy limits. If they need their insured’s consent to disclose that they’re at the policy limits, tell them that you’re planning on suing if they don’t confirm the policy limits in writing, so they should let their insured know that if consent is not given, his or her time will be wasted on a lawsuit that may be completely avoidable. Nobody wins if they have $15,000 limits and they just aren’t willing to confirm that. Lack of that confirmation indicates to you that the limits are higher, because it would just be unreasonable for both their insured and them to not tell you that $15,000 is the limit (if true) if that is all it takes to avoid a needless lawsuit.

            I wouldn’t really take it personally that they responded with the exact same letter. From their perspective, you sent them the same offer twice and they responded the same twice. The numbers mean more than the words to them when it comes to negotiating.

  16. Jason [last name removed by admin] says:

    Very interesting. I was involved in an auto accident with a drunk driver in Spain. I was in hospital in Spain and had back surgery twice in the U.S. My medical bills were paid by my US insurer, Anthem. I have hired an attorney in Spain. What would the health insurers require when it would be a lawsuit in Spain vs in U.S. court? Should I be including medical bill amounts that Anthem paid for in the total amount of claim? Thank you!

    • fl_litig8r says:

      If the Anthem policy was issued in the U.S. then it will be governed by U.S. law and the law of the state in which it was issued, so I would be sure to account for having to reimburse Anthem in negotiating a settlement. The reimbursement provision is part of a contract, so the relevant question is where the contract was issued, not where the accident occurred.

      • Jason [last name removed by admin] says:

        Thank you for the quick response. I can certainly include the amounts that the insurance company paid for the Spanish lawsuit. A couple of questions:
        How would Anthem know that it was an auto accident related claim in another country, and how would they know that I would be filing a lawsuit settlement? Would they send me a letter telling me to make the lawsuit and they would expect reimbursement? I haven’t received anything from them and it has been 2 months.

        I was a passenger in the car, and had to kick the door out to get my wife and young kids out of the car and between the collision and vehicle escape,it damaged my back. My Spanish attorney is concerned for collision “causal” link and will be a problem with my claim. I don’t get that. Any thoughts? Many thanks.

        • fl_litig8r says:

          I don’t know all the ways that health insurers find out about accident claims. There is a nationwide claim database that they can use, but that likely (I’m guessing here) wouldn’t include accident claims outside the U.S. They get requests from personal injury lawyers for their records to be used as part of the claim, which is a clear tip off. They may even have flags set up to review certain types of claims activity related to treatment for trauma, so if your whole family suddenly starts getting X-rays out of the blue, that may prompt them to investigate further. Technically, your contract requires you to notify them of the claim, but if you’re considering breaching the reimbursement provision, I’m guessing that the notification requirement won’t sway you. The bottom line is that you may or may not evade their radar for reimbursement, but it’s a risk, and one that will hang over your head for however long the relevant statute of limitations for contracts is in the state where your policy was issued (which is likely several years). Do you really want to wait and see if they sue you to recover their money years from now, after you’ve likely spent it?

          With respect to your attorney’s concerns over causation, I’d say it comes down to how reasonable it was for you to kick open that door. For example, if someone is trapped in a second story office after an arsonist set fire to his building, and that person has no way to escape the flames other than to jump out the window, I can’t imagine any jury saying that the injuries he suffered in the fall shouldn’t be attributed to the arsonist. However, if he has a clear path to safely escape from the fire via the stairs and opts to jump out the window anyway, that’s probably going to raise questions as to whether the arsonist should be liable those injuries. The question in your case will likely boil down to whether a jury thinks you acted reasonably under the circumstances when you kicked open the door.

  17. Dodie [last name removed by admin] says:

    I don’t have any legal questions, but I have been reading throughout this site, and you are a remarkable human being…It’s only people like yourself who make this world a better place….Thank you Sir……

  18. Kelly [last name removed by admin] says:

    Thank you so much for all you do. My question is as follows: I had an accident which was my fault, no other vehicles or person’s involved. I hit a yellow concrete pillar sticking up out of the ground about the height of my car bumper, the impact damaged the left drivers side of my car completely peeling back my drivers door and damaging the drivers side front panel. I am 55 years old and In the 35 years I have been driving I have never hit anything or anyone, this is the first time I have ever made any kind of claim against my auto insurance. The impact caused $3,200 worth of damage to my 2011 Chrysler 300, because this accident is my fault am I entitled to any compensation for left shoulder injury, since everything will be handled through my insurance company? Thanks in advance.

    • fl_litig8r says:

      What you’re entitled to recover depends on what type of coverage you have. You won’t be able to receive any pain and suffering, but if you have medical payments coverage, it will pay for your medical bills and if you have personal injury protection (PIP), like in a no-fault state, it will pay a certain percentage of your medical bills (often 80%, but it depends on the specific coverage) and likely a certain percentage of any lost wages (often 60%, but it also depends on the coverage), up to the coverage limits. Certain non-auto insurance can also come into play, if you have it, like a disability insurance policy or an accident policy (like those sold by companies like AFLAC), which will also compensate you for wage loss in accidents where you were at fault.

  19. Douglas says:

    Well, I think I messed up by not reading (finding) your advice earlier. Almost 2 years ago, I tipped forward off a badly eroded curb in a dimly-lit parking lot owned by a prestigious university and fractured my kneecap. There was no curb where one should have been. I did not trip, but fell directly on my knee. Surgery was required and, although I have regained most of my ROM, the leg is weak, it still painful every time I go downstairs, and my usual activities have been seriously curtailed due to weakness/pain. We took pix and gave them to the entity doing the follow-up (PMA). The university went in and completely re-did the lot shortly thereafter.

    We believed the university (btw, my spouse’s employer) would help us out and we did not bring suit. Experience has been that they are not interested in helping out. The health plan paid approximately $10K for the medical expenses ($25K was the billed amount) and I am out-of-pocket “only” +/- $1K. The university is self-insured, the plan is administered by Aetna. They have subrogation rights. Here is the text, in part: “In addition, if a Covered Person receives any payment from any Responsible Party or Insurance Coverage as a result of an injury, illness or condition, the plan has the right to recover from, and be reimbursed by, the Covered Person for all amounts the plan has paid and will pay as a result of that injury, illness or condition, from such payment, up to and including the full amount the Covered Person receives from any Responsible Party.”

    In this case, the Responsible Party and the plan are essentially the same entity. How does that affect my situation?

    I have not yet been able to get my maximum medical expense because my MD did not want to do hardware removal until at least a year had passed and then I was caught up with buying/renovating a house and could not schedule surgery. The statute of limitations is 2 years, so my time is running out.

    I did consult with a PI attorney and he is anxious to take my case, saying that the university likely will try to offer dimes on the dollar of what my case might be worth. Basically, I just want this to be over and have any costs of the hardware removal covered without fear of being hit with a claim from a health insurer or (I am close to medicare age) the government. Can you advise what I need to look out for?

    I just sent a request to PMA for twice the amount of the billed medical expenses. I really didn’t think it through. I did say I wanted to be protected from claims from Aetna for payback. What do you think?

    • fl_litig8r says:

      While your situation, with your health insurer being a self-insured fund operated by the same entity as the liable party, might seem odd because it would basically involve the entity paying itself back for your medical care, it’s likely that this is exactly what it would want to do for bookkeeping purposes. Its liability fund (assuming it is self-insured for that as well) is separate from its health insurance fund, and it would want its records to reflect that the money paid for your accident-related health care was attributed to the liability fund. There are lots of reasons for this, including how it calculates premiums for its health coverage recipients, but the long and short of it is that you should make sure you settle for an amount that takes reimbursement of the health plan into account, unless they are willing to waive reimbursement as you requested in your demand (in writing).

      • Douglas says:

        Thank you for taking the time to respond, litig8tr. Will Medicare be able to make a claim for reimbursement from me if I have the hardware removal (after I am covered by Medicare)? If I receive funds from the university without bringing suit, do I have to inform them (Medicare)?

        • fl_litig8r says:

          Because your treatment will occur long after your settlement, Medicare wouldn’t have any basis to claim reimbursement. In theory, it could refuse to pay for the treatment because you didn’t use a Medicare set-aside, but as I discuss in this article, Medicare really doesn’t do this in personal injury cases. I don’t see any benefit to you notifying Medicare about your settlement, unless you plan to implement a Medicare set-aside as part of your settlement (which 99.9% of personal injury lawyers won’t do in non-workers-comp injury cases). Yes, it’s a gamble that Medicare won’t pay for the future procedure, but the odds are overwhelmingly in your favor.

          If it is a huge concern to you, you could just set aside money from the settlement on your own, informally, to cover the cost of the future procedure. Then, if Medicare refuses to pay, you have the money ready to do it on your own. If they pay without question (as is most likely to happen), then spend that money on whatever you want.

  20. shar says:

    I was injured while working but was asking for you to temp agency.I fell at work and had to have surgery on my shoulder injured my right knee and my lower back.just recently took it to trial picture I found the defendant negligent.but I was even given only 86,
    000. after I pay my attorney’s fees and my medical insurance for the insurance company which is a self insured employer I will have nothing. if I have not signed anything saying I would accept the settlement offer can I appeal this? I just find it very unfair because I will be injured for the rest of my life and I got nothing out of it

    • fl_litig8r says:

      It sounds like you got a judgment, not a settlement, so there wouldn’t be any way for you to refuse to sign anything to reject the amount awarded. Unless the jury awarded you so little that it was below the minimum amount the evidence proved (evidence from both sides, not just yours), there’s probably no basis to challenge the verdict as being clearly erroneous. There may be some technical grounds upon which to appeal, such as an incorrect ruling by the judge on an evidentiary issue, jury instruction, etc., but I wouldn’t be able to speak to that without knowing your whole case and the court’s rulings. Only your lawyer will be able to answer that.

      If your damages were reduced due to comparative negligence (i.e., the jury found you partially responsible for your own injuries), then you should be able to reduce the health insurance lien by the same percentage. You may also be able to reduce their lien by the percentage you paid in attorney’s fees under what is known as the common fund doctrine, though because your health insurer is apparently a self-funded ERISA plan, this may not be possible and would depend heavily on your plan’s language and how your local federal courts have ruled on this issue in the past.

      While you may view this result as unfair, jurors don’t take your attorney’s fees into account when rendering their verdict. They felt that the amount awarded was fair enough to compensate you for some reason. Unless their award was completely unsupported by the evidence, you won’t have any grounds to challenge it based on the amount being inadequate. As I said, there may be other grounds for appeal, but that’s something your own lawyer would need to address because it requires an analysis I can’t do, not knowing what went on in your case procedurally.

  21. travis says:

    Hi, I will be getting a small settlement after being in a very bad car accident. I sued the at fault driver’s insurance an negotiated with my insurance company to keep a small amount.. I cannot sue the at fault driver now. My medical bills are over 300,000. I want to know why I have to use my settlement money which is 60k to pay my medical bills that my insurance company wont, which is 35k. Why does the at fault driver not have to pay my medical bills? I want to keep this small about of money as I will have a lot of medication, disabilities from the accident. Can you please point me in the right direction? I want him to pay. Thanks a million, and good luck.

    • fl_litig8r says:

      When you settled with the at-fault driver’s insurer and agreed to release the at-fault driver, you gave up any right to seek additional compensation from him. The settlement amount was meant to include your medical expenses, so technically the at-fault driver has paid your medical expenses via the settlement. If the settlement amount was inadequate to cover these expenses and fairly compensate you, this is something you should have considered before accepting it. Your medical bills and health insurance liens are all part of your claim. They aren’t some separate amount which should be paid in addition to any settlement.

  22. James [last name removed by Admin] says:

    Just finished going to trial, only received $5,000, won the case, still in shock over trial.
    It happen 7-3-12, 2:40 am, just got off work. The guy tried killing himself by hitting me head on, (hit from driver door back (totaled, I flew out of car, was 57 at time, now 60, havent had any kind of ticket in over 25 years).
    He was arrested over it, had been drinking, (alcohol only was .01), none of this was aloud told, wasn’t allowed in trial, nor who ins him. (which I had same ins). I didn’t go to hospital at time of wreck did 9 hours later.
    My medical bills are over $24,000, car was paid for over $13,000, and I owe lawyer 30% of $5,000. I still need operation on back still. can’t afford time off work to get operation (bills), turn down $37,000 before court.
    I take Hydrocodon just at work, 1 when work starts, and 1 at lunch, I just deal with pain, and go on.
    I’m very glad I lived know matter what.
    Haven’t talk to lawyer since case yesterday, other then appeal, which he did say we could get.
    Now my question is what are my options from here other then appeal, can I get my auto ins company to pay for operation since I won the case, or what?
    Just need to know few things before I see my Lawyer.
    James Myers.

    • fl_litig8r says:

      Your options really depend on how the jury arrived at such a low number. If they found the other driver 100% at fault, the only way they would be able to award so little would be if they found that a good deal of your care was unrelated to the accident. If that’s not the case — say the defendant didn’t argue that you had preexisting conditions or some other medical causation argument — then you just got a terrible jury and you might even be able to move for a new trial before your current judge before having to appeal.

      I don’t see why you would think that your own auto insurer would now pay for a surgery that the jury didn’t think was necessitated by the accident. I’m assuming that you’re referring to underinsured motorist (UIM) coverage. That only pays for damages caused by the accident which exceed the at-fault driver’s policy limits. If the jury didn’t attribute those damages to this accident, your UIM insurer wouldn’t have to pay for them.

      With respect to the issues you raised about the driver trying to kill himself and having consumed alcohol before the accident, I can see why those things weren’t put in front of the jury. With respect to the alcohol, the BAC you cite (.01) isn’t even remotely close to evidence of impairment. If anything, it would be proof that he wasn’t impaired. With respect to the allegations of attempted suicide, I doubt your own lawyer would want to make this argument. If you argue that he intentionally hit you because he was trying to kill himself, you’re arguing battery, not negligence, and his own insurer would likely deny coverage under several policy exclusions, including the “criminal act” exclusion and the exclusion for “intentional acts”. Assuming you could prove that this was a suicide attempt (and short of an admission, I’m not sure how you would do that), you may wind up worse off than if you alleged that it was negligence — because now he would have no insurance coverage. While your own UM insurer could still be liable in such a scenario, depending on your own policy limits and potential exclusions, arguing intentional conduct might not have been the best approach from a tactical standpoint.

  23. Teri says:

    I was involved in a head-on collision in Nov. 2012. The other driver came into my lane. He was charged totally. My medical insurance paid my hosp bills. I was never told about any reimbursement & the med insurance never contacted me about this until last week. I settled, without a lawyer or sueing, for the max benefit of $50,000. My medical bills were over $150,000. My settlement with his insurance was done within 6 mos. of the accident. I live in Georgia which I know is against reimbursement to med. insurance from settlements. I also know that there are legallities for this. I have not been made whole physically or financially. What chances are there that I will not have to reimburse my med insurance? Why did the med insurance not contact me earlier and why did the auto insurance not say anything about this? Hope you can give me some answers. I know I will have to get a lawyer in all probability.

    • fl_litig8r says:

      Your odds of avoiding repayment to the health insurer under Georgia’s anti-subrogation statute, O.C.G.A. 33-24-56.1, depend on what type of health insurance plan you have. If it’s an individually purchased plan (not through an employer), the statute will definitely apply. If it’s an employer-based plan that is underwritten by a health insurance company (the employer pays premiums to a health insurer, but that health insurer pays for treatment), then it’s very likely that the anti-subrogation statute will still apply due to what’s known as ERISA’s “savings clause”. If it’s an employer-based plan that is self-funded by the employer (the employer pays for medical treatment out of its own funds), then the anti-subrogation statute will not apply due to what’s known as ERISA’s “deemer clause”. However, the general “make whole” rule can still apply if the plan language itself doesn’t disavow it (which it probably does, but it never hurts to check).

      I know I’ve just hit you with a bunch of legalese at once, so I’ll try to explain it in more detail here. Georgia’s anti-subrogation statute is basically a statutory form of the “make whole” rule — it says that health insurers are not entitled to reimbursement from their insureds unless their insureds have made a full recovery from the third party tortfeasor. In your case, because you’ve settled for the tortfeasor’s policy limits, you have about as good as claim that you were not made whole as you can get, so you’d really like this statute to apply. If you bought your health insurance policy on your own, and it isn’t through an employer, it’s practically guaranteed that the statute applies and you owe the health insurer nothing.

      If your health insurance is through your employer, this is where things get complicated because federal ERISA law likely comes into play (assuming you don’t work for a church or government agency, to whom ERISA doesn’t apply). ERISA starts with broad proposition that it preempts all state laws regarding employer-based benefit plans. However, it then creates a pretty broad exception to this preemption by stating that it does not preempt certain state laws which “regulate insurance” — this is known as the “savings clause” because it saves from preemption state laws that regulate insurance. Several Georgia federal court cases have found that O.C.G.A. 33-24-56.1 is a statute “regulating insurance” within the meaning of ERISA’s savings clause (see this case and this case). Therefore, as long as you are dealing with an actual insurance company, and not a self-insurance fund, Georgia’s anti-subrogation statute should still apply and you should still owe the health insurer nothing.

      If you are dealing with a self-insurance fund, this is where ERISA’s “exception to the exception” about preemption comes into play, known as the “deemer clause”. ERISA provides that state law cannot deem a self-insurance plan to be insurance for purpose of its state regulations. So while Georgia’s anti-subrogation statute appears to apply to self-funded plans as well as insured plans, ERISA doesn’t consider the statute saved from preemption when it comes to self-insured employer-based plans. ERISA basically says that it will allow state laws that regulate insurance to stand, but it won’t allow states to deem self-insured plans to be insurance for purposes of such regulation.

      I’m sorry if this is all really confusing, and I know it won’t be easy to translate this into an argument against your health insurer, but this subject is very difficult to explain to lawyers, much less lay people. What you really need to know is that you shouldn’t have to pay the health insurer back unless your health insurance plan is an employer-based, self-funded plan. Even then, there is a remote chance that the make whole doctrine would apply if the employer didn’t expressly disavow it in the plan language.

      With respect to why your health insurer didn’t approach you sooner, it’s probably because they weren’t aware of your claim. Plus, under nearly all health insurance policies, the burden is on the insured to notify the insurer of a possible claim against a third party — not the other way around. You’re supposed to approach them when a reimbursement right might arise.

      The defendant had no duty to advise you about you possibly having to repay your own health insurer. The risk of missing something like this is assumed by all pro se litigants. You can’t rely on opposing counsel or an opposing insurer to tell you your own legal duties — they aren’t your lawyer.

      • Teri says:

        Thank you so much! My insurance is BCBS and is a group policy through my employer. I never had a copy, which no one does, because my employer, which is a state university, holds the policy. This is why I knew nothing about any reimbursement. I guess I will have to get a lawyer to answer the letter I received from BCBS and state what hopefully will help me, if not wipe out the claim, greatly reduce it!!! Thanks so much again for putting the “made whole” subject in lay terms I could understand!!!

        • fl_litig8r says:

          If your employer is a state university (a true “state school”, not just a university in the state), then ERISA wouldn’t apply because it doesn’t apply to benefit plans offered by government agencies. So, unless there’s a specific Georgia statute that contradicts the general anti-subrogation statute for state government employers (and I didn’t see any, but you should ask a Georgia lawyer), I’d say that it’s very likely that any claim the health insurer has for reimbursement is foreclosed by the anti-subrogation statute, even if it turns out that the plan is self-funded and only managed by BCBS.

          • Teri says:

            It is the University of Georgia. Do you think it is possible for me to answer BCBS with the subragation statute,just to see what happens or should I let an attorney handle it?

          • fl_litig8r says:

            I see no harm in trying it yourself. When you respond, cite the statute and make it clear that you were not fully compensated by the settlement. Make sure they know that the defendant’s insurer paid policy limits.

  24. Teri says:

    By saying ‘foreclosed’, do you mean that they have no claim for reimbursement or aren’t entitled by the statute for reimbursement?

    • fl_litig8r says:

      I’m not sure what distinction you’re drawing between the two, but I mean that the statute precludes them from “requiring” (the statute uses the word “require”) reimbursement from a beneficiary who has not received a settlement that exceeds the full amount of the beneficiary’s economic and noneconomic damages. I guess technically that allows them to “ask” a beneficiary who wasn’t fully compensated by a settlement for reimbursement. It just precludes them from doing anything if the beneficiary says no.

  25. TJ says:

    I was involved in an accident last April 2013 in which I was injured and everything has settled. I received 140000 and my lawyer got his 33.3 which was 46620 and 4000 fees. I live in PA and he said not to worry about my medical payment to my health insurer. I work for a goverment agency (not the federal goverment) and I was wondering about ERISA in regards to the amount I would need to pay back if any?? My medical bills are around 25000. Any feedback would be greatly appreciated. Thanks

    • fl_litig8r says:

      ERISA wouldn’t apply to your claim because it doesn’t apply to plans issued by governmental employers at any level — federal, state or local. However, the inquiry doesn’t end there with respect to whether you’re in the clear. Pennsylvania has an anti-subrogation statute, but my own brief research shows that this statute has been held by the state supreme court to be inapplicable to HMOs (thanks to poor wording in the anti-subrogation statute that hasn’t been corrected since the 2006 opinion was issued). If your plan is an HMO, you may want to discuss this issue in further depth with your attorney. The state supreme court case, Wirth v. Aetna, can be found here.

      • TJ says:

        What if it’s a PPO, does that make a difference???

        • fl_litig8r says:

          I would think that it would, but this is a question that really requires access to professional level research tools for Pennsylvania caselaw to answer with any level of confidence — as a Florida lawyer, that’s not part of my research subscription. Ask your lawyer specifically if he’s not concerned about subrogation because of the fact that your plan is a PPO, and that he’s sure that Pennsylvania’s anti-subrogation statute applies to PPOs.

  26. Gene says:

    I live in Arizona and was involved in a auto accident in which i accumulated bills in access of $250,0000. I received $25,000 from the at fault driver insurance, $100,000 from my under insurance and $50,000 from other insurance.

    I hired a lawyer who is entitled to 28% of the $175,000. That leaves $126,000.

    My medical insurance, AETNA, paid out $71,000 for medical bills resulting from the auto accident.

    The subrogation company Rawlings claim for reimbursement is $78,000. AETNA has agree to accept $21,309.00 in settlement. This is the first offer from AETNA and my lawyer encourages I accept.

    Should I counter offer a lower amount? Say $10,000? Should I mention an Interpleader to strengthen my counter offer?

    • fl_litig8r says:

      If Aetna has an enforceable subrogation claim, then their offer sounds really good and you should take it. Basically, unless Aetna has no right to recover at all, this is a great offer and I wouldn’t suggest pushing your luck if your lawyer advises against it.

  27. Henderson [last name removed by admin] says:

    If a person receives money from a group settlement for pain and suffering due to the impact on their body of a poor medical product, does that person have to pay their settlement funds to the insurance company that paid for their five surgeries in California that were a result of the poor medical product even if that patient has not received any notice of lien?

    • fl_litig8r says:

      I assume that the money you received was not just for pain and suffering, but was for the totality of your claim, including your medical expenses. Whether your health insurer has any right to repayment depends on many factors you haven’t mentioned, mainly (but not exclusively) whether this is an employer-based health insurance plan (and whether that employer is a government agency, church, or other ERISA-exempt entity) and whether your plan purports to exempt itself from the make whole rule. Also, when you say you haven’t received any notice of lien, did you notify your insurer about the liability claim you just settled? Your policy likely requires this. Insurers can’t send notices of liens when they don’t even know that there is a third party claim to which a lien may attach.

  28. Jennifer says:

    My husband was hit (on a motorcycle) by drunk driver (also on a motorcycle) in October of 2013 and was flown by helicopter to the hospital where he remained and had 8 major surgeries over a period of just 25 days. He was then moved to a skilled nursing facility to have even more surgeries and try and recover with physical therapy. Fast forward to now- it’s been 13 months since his accident and as a result of this woman’s negligence, my husband has endured 14 major surgeries to date and has one more scheduled in the spring of 2015. We have racked up almost one million dollars in medical bills, he has lost his job, I have lost mine due to needing so much time off to care for him at home, and the only money we received was from our insurance company and the owner of the at fault motorcycle. Now our health insurer (Aetna) has sent me 2 letters saying it’s their right to subrogate the entire amount they’ve paid out in medical claims. Our settlement is a total of $125,000 from the two combined insurance checks. We live in Florida and I looked up the “made whole” doctrine to see what they were entitled to since we still need that money to pay coinsurance amounts and whatever costs we incur for his future surgery as well. From what I’ve read, in Florida, Aetna cannot recover any money unless my husband has been “made whole.” What constitutes “whole?” Is it the amount of medical costs we’ve incurred from all of the surgeries he’s endured to try and put his bones and joints back together again? And if so, can’t Aetna only try to recover if we received MORE money than what they’ve laid out in medical costs? Is THAT the Florida law? If I’m wrong please let me know, Aetna’s law group is on my back to “negotiate” an amount THEY think is fair that we should pay them out of the $125,000. I appreciate any help and advice you can give me since we are doing this all without a lawyer (our lawyer simply dropped us one year after the accident saying that there wasn’t enough money in it for them). Thank you!

    • fl_litig8r says:

      Welcome to the nightmare of health insurance subrogation issues. Unlike many states, Florida does not have a strict antisubrogation statute or a statutory version of the make whole doctrine. In fact, Florida Statute §768.76 specifically allows subrogation without any mention of the insured needing to be made whole. Only when the insurer fails to provide proper notice of its right to reimbursement by failing to respond to respond to proper notification of the insured’s claim against a third party within 30 days does it completely waive its right of subrogation. Fla.Stat. §768.76(6). If the insurer in your case made such a blunder (and assuming your husband had provided the proper notice to trigger the 30-day deadline), he has a strong argument that he owes them nothing, even if his insurance is an ERISA plan, because Florida courts have held that Fla.Stat. §768.76 is “saved” from ERISA preemption as a statute regulating insurance.

      If the 30-day notice provision was not violated, you would have to argue the make whole doctrine applies, which in Florida is a common law doctrine (judge-made law, not statutory). Unfortunately, under ERISA, a common law make whole doctrine can be contracted around, meaning that if his insurance plan contains language specifically disavowing the make whole doctrine (and most do these days), the make whole doctrine doesn’t apply. Therefore, if his policy is an ERISA plan, the odds are good that the insurer could make a legitimate claim to the entire settlement, leaving bluffing and negotiating with the insurer your husband’s only options. If his policy is not an ERISA plan, Florida caselaw is less than 100% clear as to whether a specific contractual disavowal of the make whole doctrine will override the common law rule, though it hints that such a disavowal would be upheld.

      Therefore, unless the insurer definitely blew the 30-day deadline from Fla.Stat. §768.76(6), or the insurance contract does not adequately disavow the make whole doctrine (it must contain language saying that the insurer gets paid first from a settlement or that the insurer gets paid regardless of whether the insured is made whole) I would recommend trying to negotiate some kind of settlement with Aetna, as the odds are not in his favor that the make whole rule will apply. It sucks and it’s unfair, but this is the current way these issues are decided in Florida.

      • Jennifer says:

        Thank you for your advice- unfortunately I have no idea whether Aetna was informed that we had already been issued checks by both insurance companies not even 5 days after his accident, which we then turned over to our lawyer at the time to negotiate any medical expenses that Aetna wouldn’t cover. The law firm handled EVERYTHING. I have no idea to this day if they ever contacted Aetna with our settlement information. I didn’t even know that a healthcare insurer could do that. We weren’t told by our lawyer until about 2 months ago(before they dropped us!) that Aetna could even do this. I assumed that since we paid our copays, monthly premiums and presurgical fees, that health insurance covered ANY illness, accident or injury you had. Why else would you pay to have it? So now Aetna believes it’s fair to recover for the amount it’s laid out in medical costs (the last figure I was told was about $700,000) against a total settlement of $125,000? How much of it are they entitled to? And if they say HALF, can I refuse to pay that much and haggle with them to bring it down? Florida is a right to pay state anyway, what can they do to me if I refuse their terms? They can’t garnish wages or repossess any vehicles, or even put a lien on my house. How much power does a healthcare insurance company really have?

        • fl_litig8r says:

          In theory, the insurer’s subrogation/reimbursement right is meant to prevent a plaintiff from receiving a windfall — having his medical bills paid for by health insurance and then claiming those same expenses he didn’t actually incur (yeah, I know he paid premiums, but we’re talking about a whole lot more than the premiums he paid here) as part of the lawsuit. Of course, it runs into logistical problems in situations like your husband’s where there isn’t adequate insurance to cover all the damages — a problem that was supposed to be solved by the make whole doctrine, which has been stymied by terrible court decisions (at least in the ERISA context) allowing health insurers to nullify the make whole doctrine by contracting around it. Intellectually dishonest judges justify these rulings by pretending that health insurance contracts are created through bilateral negotiations between parties with equal bargaining power, so that if an insured doesn’t want the insurer to opt out of the make whole doctrine, he can use the free market to find or negotiate a health insurance contract that doesn’t do this. Considering that no one but lawyers has ever heard of ERISA or the make whole doctrine (until they get screwed by them, that is), it’s laughable that courts even entertain this notion. Plus, the fiction that people have a wide range of choices in health insurance is something that any working person could dispel in two seconds. Basically, these court decisions demonstrate that even the judicial branch isn’t divorced from politics. Certain interests get more favorable treatment than others. Unfortunately, these issues are so complicated to explain to your average Joe and only affect a small percentage of people at any given time, it’s hard to imagine any public outrage being generated over them to spur change any time soon. There’s a reason that the Monica Lewinsky scandal took off and the Whitewater scandal received a resounding “huh?” from the public. Eyes glaze over when you try to generate outrage over something dry, complicated and hard to explain.

          As far as what the health insurer can do to your husband (again, assuming that they’ve opted out of the make whole doctrine — something you need to check by asking for that policy language), it can sue him and get a judgment. Then, it can use whatever means any judgment creditor can to collect on it. While you are correct that Florida places some serious restrictions on what types of funds and assets can be seized to satisfy a judgment, if your husband keeps any of the settlement in cash or equivalents, that can be seized. Plus, an unpaid judgment will trash his credit rating and he can expect to be harassed by collection agents for a while.

          If you determine that the insurer has the right to any recovery (again, check the policy language to confirm that the insurer disavowed the make whole doctrine), you might be able to negotiate them into a reasonable settlement based solely on a fairness argument. Sometimes is pays to tug on an adjuster’s heart strings. Considering how severely your husband’s life was affected by the accident, ask them how in good conscience they could ask him to take a fraction of what is already a small fraction of his damages. That money isn’t going to affect the insurer’s bottom line by even a single percent, but the difference it can make in your husband’s life is substantial. When they respond with “we have the legal right. . .”, ask the adjuster to be a human being and do the right thing here. Just because the insurer can legally do something doesn’t justify doing it. Whether such an appeal to humanity will work varies from person to person, but it’s worth a shot if you have nothing else. People don’t like to feel shitty about themselves, so hopefully the person you deal with has some form of conscience. Lay on the guilt, but try to remain sympathetic without getting hostile. If you get the person angry, they can use that anger to override any guilt they might feel about screwing over your husband.

          • Jennifer says:

            I understand and will do the right thing. But I WOULD like to know exactly what “language” or key words I am searching for in our contract. I have over and over it and I see somethings that give me hope in what I understand of this contract, but it would be such a help to me if I knew EXACTLY what words would tell me whether or not they disavow the made whole doctrine or if I have some glimmer of hope in this that we might win this. Not that this is a war against the wolves of government and corporations that seem to have little or no regard for the individuals that are struggling every day to keep their heads above water, but then again, isn’t it? Please, if you have any specifics that I should be looking for in the contract that would let me know one way or the other if I have a leg to stand on, I would be so grateful. Then I can get on with the business of dealing with this head on and putting it behind us. Thank you again for all of your help, I have a much better understanding of how these things work and that what you don’t know, CAN hurt you.

          • fl_litig8r says:

            Unfortunately, there is no uniform language used by insurers to disavow the make whole rule. Some are blatantly obvious, specifically using the term “made whole”. Some are less so, claiming to be entitled to the first dollar in any settlement, with the plaintiff receiving no priority for his or her damages. What you need to do is find the section of the policy dealing with the insurer’s right to reimbursement and/or subrogation, which in my experience is always clearly labeled with its own heading in large or bold print. It’s usually only a page or so long, so it’s not like you’ll need to pore over the entire policy to find it. It’s a lot easier to tell from specific language used if it clearly disavows the make whole rule than it is to speculate about all the possible ways it can be done. If you find the actual language and post it (you don’t need to post the whole section — just the part that looks relevant), I’ll tell you what I think (although it may be obvious when you read it).

  29. Lisa says:

    I do have a self funded insurance through work. I was in an accident almost a yr ago. I live in PA Everything has been settled and my lawyer has gone back and forth with employer and processing (insurance) company for a settlement amount for the amount they are requesting to be reimbursed. The employer has sent an affidavit (my lawyer requested) stating everythng but some of the information was incorrect so she requested it be corrected. Nothing has been done, it is like they put me on back burner. My lawyer called me today and asked if I wanted her to send them the check for the agreed amount or if I wanted her to send the check to me. My question….. If I would have her send me the check and wait, is there a chance they will take the deal off the table and try to collect the full amount? My lawyer also told me they could come after my house and sue me.

    • fl_litig8r says:

      On the one hand, you say you have an agreement, but on the other you say that corrections need to be made to an affidavit sent by the employer, which I assume is a listing of the medical payments they attributed to your accident. So do you really have an agreement for a settlement amount or are you waiting for them to correct their reimbursement claim to remove unrelated bills? In either event, I doubt that they would take their offer (before any requested corrections) off the table barring some newly discovered evidence. I don’t think that a delay while you try to address their alleged errors would cause them to pull them offer. That’s more of an emotional response you’d expect from an irrational individual, not a business decision from a corporate entity.

      If you are concerned about them coming after you if you delay, what you can do is pay the amount that isn’t disputed and hold back only the amount in dispute. That should really reduce the chances of them taking any action against you while the dispute is addressed, as now they’d have to make the business decision to sue you over a much lower amount, which may not be cost-effective. I don’t know your actual numbers, but if a lien is $50,000 and $5,000 of that is disputed, you’re much more likely to be pursued if you withhold the whole $50,000, as opposed to just $5,000, while you resolve the $5,000 dispute.

  30. Jennifer says:

    I literally copied this word for word (the paragraphs that seemed relevant to this particular matter) from my certificate of coverage explanation. ** SUBROGATION AND RIGHT OF RECOVERY
    If HMO provides health care benefits under this Certificate to a Member for injuries or illness for which another
    party is or may be responsible, then HMO retains the right to repayment of the full cost of all benefits provided by
    HMO on behalf of the Member that are associated with the injury or illness for which another party is or may be
    responsible. HMO’s rights of recovery apply to any recoveries made by or on behalf of the Member from the
    following sources, including but not limited to: payments made by a third-party tortfeasor or any insurance
    company on behalf of the third-party tortfeasor; any payments or awards under an uninsured or underinsured
    motorist coverage policy; any Workers’ Compensation or disability award or settlement; medical payments coverage
    under any automobile policy, premises or homeowners medical payments coverage or premises or homeowners
    insurance coverage; any other payments from a source intended to compensate a Member for injuries resulting from
    an accident or alleged negligence.
    The Member specifically acknowledges HMO’s right of subrogation. When HMO provides health care benefits
    for injuries or illnesses for which a third party is or may be responsible, HMO shall be subrogated to the Member’s
    rights of recovery against any third party to the extent of the full cost of all benefits provided by HMO. HMO may
    proceed against any party with or without the Member’s consent.
    The Member also specifically acknowledges HMO’s right of reimbursement. This right of reimbursement attaches
    when HMO has provided health care benefits for injuries or illness for which another party is or may be responsible
    and the Member and/or the Member’s representative has recovered any amounts from another party or any party
    making payments on the party’s behalf. By providing any benefit under this Certificate, HMO is granted an
    assignment of the proceeds of any settlement, judgment or other payment received by the Member to the extent of
    the full cost of all benefits provided by HMO. HMO’s right of reimbursement is cumulative with and not exclusive
    of HMO’s subrogation right and HMO may choose to exercise either or both rights of recovery. The Member and the Member’s representatives further agree to:
    A. Notify HMO promptly and in writing when notice is given to any third party of the intention to investigate
    or pursue a claim to recover damages or obtain compensation due to injuries or illness sustained by the
    Member that may be the legal responsibility of a third party;
    B. Cooperate with HMO and do whatever is necessary to secure HMO’s rights of subrogation and/or
    reimbursement under this Certificate;
    C. Give HMO a first-priority lien on any recovery, settlement or judgment or other source of compensation
    which may be had from a third party to the extent of the full cost of all benefits associated with injuries or
    illness provided by HMO for which a third party is or may be responsible (regardless of whether
    specifically set forth in the recovery, settlement, judgment or compensation agreement);
    D. Pay, as the first priority, from any recovery, settlement or judgment or other source of compensation, any
    and all amounts due HMO as reimbursement for the full cost of all benefits associated with injuries or
    illness provided by HMO for which a third party is or may be responsible (regardless of whether
    specifically set forth in the recovery, settlement, judgment, or compensation agreement), unless otherwise
    agreed to by HMO in writing; E. Do nothing to prejudice HMO’s rights as set forth above. This includes, but is not limited to, refraining
    from making any settlement or recovery which specifically attempts to reduce or exclude the full cost of all
    benefits provided by HMO.
    HMO may recover the full cost of all benefits provided by HMO under this Certificate without regard to any claim
    of fault on the part of the Member, whether by comparative negligence or otherwise. No court costs or attorney
    fees may be deducted from HMO’s recovery without the prior express written consent of HMO. In the event the
    Member or the Member’s representative fails to cooperate with HMO, the Member shall be responsible for all
    benefits paid by HMO in addition to costs and attorney’s fees incurred by HMO in obtaining repayment.
    Any such Right of Recovery provided to HMO under this Certificate shall not apply or shall be limited to the
    extent that Florida Statutes or the courts of Florida eliminate or restrict such rights.

    I would SO appreciate any thoughts and /or opinions you have about the terms of this contract and if it’s in our favor or not. Thank you again!!!

    • fl_litig8r says:

      Well, off the bat I’d say that’s certainly not the clear and express language I would expect from a plan that wanted to reject the make whole doctrine. This is kind of odd, because it does contain language specifically rejecting the “common fund” doctrine, which is a doctrine that reduces their entitlement to recovery by the extent of the attorney’s fees and costs incurred to obtain the settlement. The language about providing them a “first priority lien” could be argued to be an intended rejection of the make whole doctrine, but I think that such an argument would be a stretch, especially in light of the final sentence you quote, which could be interpreted as an affirmation of Florida’s common law make whole doctrine. I’ve seen other policies use language about having a first priority lien that then go on to explicitly say that it applies whether or not the insured was made whole, which indicates that those insurers didn’t feel comfortable that their “first priority lien” language would be enough to disavow the make whole doctrine.

      While I won’t say that there’s a 100% guarantee that a court would find that this language doesn’t reject the make whole doctrine, I will say that I would much rather be arguing the plaintiff’s position than the insurer’s position if this were to be argued in court. Aetna can’t feel confident that the make whole rule won’t apply to your husband’s case in a Florida state or federal court (the 11th Circuit, which Florida is part of, applies the make whole rule as the “federal common law” default even in ERISA cases where state law doesn’t apply).

      What you do with my opinion is up to you. You could tell Aetna to pound salt, and gamble that they won’t risk the expense of pursuing this claim based on such a weak argument, or you could use this leverage as a negotiation tactic to pay them a relatively small amount and obtain the certainty that this is resolved. In either event, you should definitely throw this language in their face and let them know that you’re aware of the make whole doctrine and the fact that it would be quite a stretch to argue that this policy language is an express rejection of it (as an aside, I wouldn’t even concede to them that they have an argument — when speaking with them directly, I’d say that it’s clear that they didn’t reject the make whole doctrine, and in fact, specifically adopted it via the last sentence you quoted).

  31. tony [last name removed by admin] says:

    I was in a car accident a year ago, its been settled and my attorneys been payed @ I have also, my problem is he held out money around 800.00 for my medicare and medicade payment its now going on 4 months since weve been payed ,I cant get him to pay my doctor bills ,he says they haven’t sent him anything,i call medicare and they say they have sent out 2 letters, and he hasn’t registered with them as my attorney, I want my money he has,and my hospital bills payed that come to 175.00 the rest is mine. what can I do to end this..thanks tony

    • fl_litig8r says:

      Your lawyer is legally obligated to pay back Medicare. If he doesn’t, and just gives you the remaining money from the settlement, he can be personally liable for the unpaid amount– so that’s not going to happen. I can’t explain why Medicare seems to indicate that he hasn’t contacted them about the lien. That may or may not be true, but that’s the real issue you need to discuss with your lawyer. He may have proof that he contacted them and the Medicare agent you spoke with may be mistaken. If Medicare sent out two letters, who did they send them to if not your lawyer? If they sent him letters, how can they say that he hasn’t “registered” with them as your lawyer? Some things just don’t add up.

      I can say from experience that Medicare will often drag its feet in resolving liens, so if I had to bet on who the culprit is in any delay, I’d say Medicare. I would discuss this issue with your lawyer, and I wouldn’t immediately assume that he’s the problem so the conversation you have should not start out confrontational.

      As far as your hospital bill, I can’t say why that wasn’t paid yet. That lien (which I’m assuming is separate and wasn’t a bill paid by Medicare) should be something he could resolve fairly quickly, especially for such a small amount. What does your lawyer say is the reason this bill has not been paid?

  32. Kristine says:

    Does a P.I. attorney have to tell you in writing IF there is a lien on my house, or not?
    He wrote it in 4 years after he took my case, without my knowledge or consent. My signature is hovering, so far above the signature line, it obviously forged or copy/paste.
    The “town” I live in says I have to either come in myself, or hire a professional title searcher.
    Its public record yet I cannot access this on the towns website.

    • fl_litig8r says:

      I have no idea why a personal injury attorney would have anything to do with a lien on your house, so my knee jerk reaction is to say that no, he has no obligation to tell you about a lien on your house.

      When you say “he wrote it in 4 years after he took my case” I don’t know what you mean. Wrote what into what? He wrote something into your fee contract? Something that involved a lien on your house?

      If you have to go to your clerk’s office to search the original documents, then do it. I see nothing unusual about a town not having such records available online. Many towns don’t.

  33. Cassie says:

    Hello, I just found this site, and I don’t see any recent posts, so I’m just hoping you are still available to answer questions. I was in an auto accident in June of last year (other party was at-fault), and I just settled with their insurance company recently. My insurance company is now sending letters wanting to know more about the accident. I’m trying to find out my rights regarding subrogation in GA. Here’s what I think I have learned. I have to find out if my health insurance plan is governed by ERISA or not. I’m not 100% sure on this yet. I have an individual policy purchased through the marketplace; it is not from my employer. So assuming it’s not governed by ERISA, I believe state laws apply. I’ve read some case law in GA that stated if I voluntarily settled within policy limits (I settled for policy limits) then it is assumed I’m made whole. Is this correct? If so, does this mean I will have to pay the health insurance company back every penny they paid? In my demand package, I stated the amount due was more, but due to policy limits that was my demand amount, which is about 28% of what was stated the claim was worth. There was really no haggling; I sent the letter; they accepted, and I signed the release. So I’m just trying to find out if now I am considered “Made Whole”? Also, if I find out the plan is governed by ERISA, does the Made Whole Doctrine apply at all? As a side note, I’m pretty sure my contract contains language basically saying that the Made Whole Doctrine doesn’t apply with my coverage, & I’m responsible for full reimbursement to them if I settle without notifying them first. Any advice or guidance is appreciated! 🙂

    • Cassie says:

      Sorry as soon as I posted, I saw more recent posts.

      • fl_litig8r says:

        No problem. I haven’t written an article in a long time (I kind of ran out of ideas), but I still answer questions in the comments, which have taken on a life of their own.

    • fl_litig8r says:

      I believe the Georgia case you’re referring to with respect to “a settlement equaling being made whole” is Thompson v. Federal Exp. Corp., which was a federal court decision (not binding on Georgia state courts applying state law) in an ERISA case. In addition to this generally being a ludicrous decision, I would fight against any application of this court’s faulty logic in a case where a plaintiff is paid the full policy limits (I’d fight it in any state court, but especially in a policy limits settlement), because such and interpretation of this decision would basically force plaintiffs to take cases to trial when the defendant’s insurer is already offering them all they will ever get up front. I wouldn’t construe this one badly-conceived federal case as being the law of Georgia, whose state law seems pretty hostile to subrogation.

      If you bought your policy in the general marketplace and not through an employer, I can’t see how it would be considered an ERISA policy. Even if it is, the make whole doctrine would apply (though the insurer’s disavowal of it in the policy would likely overcome that), but then you’d have to deal with that federal decision because your fight would be in federal court under federal law. I’d still make the “settling for full policy limits is different than settling for less than policy limits” argument to distinguish your case from Thompson, if it turns out that the disavowal of the make whole doctrine was insufficient.

      I would take the position with them that your policy is not governed by ERISA and that because you weren’t made whole you don’t owe them anything under state law. Let them make arguments to the contrary, if they have any, and then research it from there to see if they are right.

      • Cassie says:

        Thank you so much for taking the time to reply. This is great information & advice! I plan on contacting them in the coming week. I’m hoping this will go as smoothly as the first part with the auto insurance company. If not, I may be back here! Thanks again!

  34. Annie says:

    My Mother was part of the recall on the hip implants. Before she knew they were on recall she went through months and months of pain as they fell apart in her body. She had to have a total of 4 hip replacements before the age of 55. She will never walk normal or be out of pain again because of all the damage. She hired an attorney that fought her case and because she couldn’t work for years (because of her complications) she filed for Chapter 7 and was bankrupt. She was NEVER informed she would not have the opportunity to fight her case in court if the offered her a settlement because of chapter 7. She had to take the settlement that didn’t come anywhere near what she deserved. She was upfront she could be getting a settlement… My question is after she paid her debt back of $40,000 the trustee charged her $50,000 for their work and she didn’t have any asset to sell. She was also charged interest twice on her debt and had to pay her personal injury Attorney and two other attorney they said she had to pay as well. after everyone was paid her settlement was $190,000 for being disabled for the rest of her life with no option to ever fight for herself. how can a trustee charge so much money? Is it legal to not inform her she would not have any opportunity to fight her case in court before allowing her to file? Any help would be appreciated. Thank you

    • fl_litig8r says:

      Unfortunately, when a plaintiff files for bankruptcy, the claim she has becomes an asset of the estate and falls under the control of the trustee and bankruptcy judge. The trustee is paid a percentage of the amounts recovered on behalf of the creditors, so that would explain the large fee (it’s not hourly). How this fee is calculated, as well as the debtor’s right to challenge the fee, is discussed in this article from Nolo. I can’t say whether the trustee’s fee in your mother’s case was appropriate or not. I just don’t have enough information, and I’m not a bankruptcy lawyer. Any issues with her being charged extra interest would need to be handled in the bankruptcy court, which isn’t something I can speak to.

      When your mother met with a bankruptcy lawyer to discuss filing Chapter 7, she should have been informed about how this would affect her personal injury claim, assuming she disclosed the claim at that time. I can’t say whether it would have made a difference in her being able to take the case to trial though, as many lawyers handling mass tort claims like hip recalls have no interest in actually trying these cases. I also can’t say whether bankruptcy wouldn’t still have been the best option, even with the extra fees and loss of control of the lawsuit. It’s too fact-specific a determination to speak about in the abstract, and I am by no means a bankruptcy expert. Did your mother discuss this issue with her bankruptcy lawyer after the fact? What was his response?

  35. Marianne says:

    Had rear end accident 11/03 no fault has paid everything and lawsuit done 2009. Am now retired from our county with health insurance that is self funded. My no fault just ran out I need a surgery on back and my insurance carrier will not pay anything as they say I got a settlement and to use that money on medical bills then they will pay. I did not get that money for future medical bills and contacted my attorney who has talked with the ins company and suggests to appeal, etc. gave me a name of a resolution place who has dealt with this as they said this Ins co is always trying this and my paperwork does not state I use my money for future medical bills. I have 2 outstanding bills and a surgery scheduled so I started an appeal on the bills. If denied what do I do, and what can I do to show these monies are not not for that. They said I have no recourse. Thanks.

    • fl_litig8r says:

      It’s pretty rare for health insurers, even self-insurers, to deny future medical care on the basis of there having been a prior personal injury settlement. Unfortunately, it is an argument they can make, even though your settlement didn’t specifically state that any part of it was for future medical bills. Most personal injury settlements don’t delineate exactly what the funds are paid for because such an agreed-upon description would have no legal impact on third parties, like your insurer, anyway. It’s presumed that when a settlement is made in a case involving anticipated future medical expenses that part of the settlement is for those expenses. Even if your settlement said that it was all for pain and suffering, that wouldn’t be binding on your health insurer.

      If your appeal fails, your only recourse would be to sue the county for breach of contract. Because your former employer was a government agency, ERISA won’t apply, so you have that working in your favor. At the very least, you should be able to establish that not all of your settlement should be offset against future medical care. Just as it is unreasonable for you to argue that none of the settlement was for future medical care, it is even more unreasonable for them to argue that all of the settlement was for future medical care.

  36. rae says:

    i went to my in network hospital and they gave me an out of network the ER. they are billing me $1091.00 for 10 minutes of this guys time. I was supposed to be given an in net work doctor and they did not even bother telling me he was out of net work. why bother going to an in net work hospital if they are going to do this junk. Am i liable for the whole bill since it was their fault. also i am willing to pay them 10 or 20 a month but am on a very set income and too ill to work more hours. can they report me to the credit bureau even if i pay monthly. I live in NY state. thanks rae

    • fl_litig8r says:

      Last year, New York passed a new law specifically addressing this issue. I just found this myself in response to your question, so I’m hardly an expert on its application, but you can get started reading about it here. Unfortunately, it appears to take effect on April 1, 2015 and likely isn’t retroactive to existing claims. It’s still worth looking into, as any uncertainty about a retroactive application may give you additional leverage in bargaining.

  37. LivieM says:

    Hi, we recently agreed to settle with our insurance company for a claim that we have been negotiating over the past 8 months or so. Included in that claim was our medical expenses, which the insurance company of the at-fault victim agreed to pay the entire amount we requested for the health expenses. We requested the amount billed, rather than the amount paid. Unknown to us, the insurance adjuster stated (after we agreed to the settlement amount) that before they could send us any documentation of the agreement on our settlement, they had to first see if there were any medical liens and if there were, the at-fault person’s insurance company would take that directly out of our settlement and then send us the check with the remaining balance owed to us. We did not feel comfortable with the insurance company of the at-fault driver settling any amounts out of our claim as shouldn’t that be between us and our health insurance?

    So I called my health insurance today (they are through a federal provider) and they had no idea about the accident. We kept track of the explanation of benefits ourselves and submitted those with our demand letter as part of our demand package but we did not contact our health insurance company at the time concerning this because we figured we would be negotiating with a subrogation person after we receive settlement.

    After I spoke with my health insurance, they informed me that they have a 3rd party to settle subrogation and they sent me over to them. I answered questions pertaining to the accident, and they said they would set up a file and call us in several days. I offered to provide the explanation of benefits pertaining to the accident but they said they would “know” which ones pertained… not sure how when our health insurance had no idea?

    It concerns me that this 3rd party that works for our health insurance may be able to negotiate with the at-fault insurance and take $$ out of our settlement without negotiating first with us. Since they may end up using all of our EOB’s from the date of the accident until, who knows when, how will we ensure that there are not amounts that they try to obtain that are not accident related and then demand that amount as a lien which comes directly out of our settlement?

    Is this normal practice? Is there anything we have to be careful of in this procedure or steps we should take to protect ourselves? I feel so frustrated as we were hoping to receive settlement in a few weeks and now I’m afraid it may end up taking months to process.

    • fl_litig8r says:

      It sounds like you don’t have an attorney, which might explain why the liability insurer doesn’t trust you to pay your health insurance liens. While this doesn’t happen very often in cases involving a lawyer, I have heard of liability insurers wanting to pay pro se plaintiffs’ health insurers (and medicare and medicaid) directly as part of the settlement. They don’t want to risk the health insurer coming after them if the plaintiff fails to pay the lien, which can happen. So while I wouldn’t say it’s “normal practice”, it’s certainly not unusual in cases involving pro se plaintiffs.

      If the health insurer’s third party subrogation adjuster manages to get the liability insurer to pay unrelated bills, that technically shouldn’t affect your part of the settlement. While you lose out on possibly making money getting the health insurer to accept less than you were paid for their part of the claim, that’s one of the downsides of going it without a lawyer. No one trusts you with the settlement money the way they’d trust a lawyer. I’d proceed with negotiating the rest of your claim on your own, but I wouldn’t sign anything until you’re sure that an agreement was reached between the health insurer and liability insurer as well.

  38. Laurel j says:

    I am very impressed with your posts and the thoroughness. I am currently recovering from a rear end car accident in early December. I suffered a concussion (tbi) neck and back sprains from slamming against the car seat (which needed to be replaced) since the impact was so hard (I was in stop and go traffic and the at fault hit my car at over 50 miles an hour or more and claims he fell asleep). The brain injury does not show up on a catscan nor does the neck or back injuries. None the less I have suffered sever headaches, double vision, memory loss, ringing in my ears neck and back pain.

    I live in ny state-nofault. My pip insurance has covered most of my medical which I would say is some where around 5000 and I anticipate more as I continue various therapy. My loss of wages (actual of approximately 9000)and the value of sick and vacation time(25000) and climbing as I transition back part time to work. I would say I have had approximately 65 fully days off of work and another 43 partial work with at least another 3 weeks of working back to full time.

    Obviously I have been missing out on many things over the last few months, but one of the most difficult for me is the enjoyment of riding my two horses and visiting my elderly father who lives 2.5 hours away. My entire home life is built around horses, the home, barn and land (which cost me hundreds of thousands) was built around this passion. I have not been able to ride since the accident and I am told at best it will be 6 month before I can get on a horse if at all. Also one of my horses is very high stung and I Will likely never be able to ride him again no matter what.

    I have been encouraged by my insurance company to pursue bodily injury against the at fault (not sure why ) insurance company. I understand the bi is only 25000, but I have under insured of 175000. The at fault did call yesterday at my insurance company prompting.

    I know I have a case, but I am not sure if it worth pursuing, if I have to have a lawyer (which my insurance company suggests ) and how I go about justifying pain and suffering which I feel is a lot due to my passion of horses, but low medical. Finally since no fault covered medical and about 12k in losses wages, will I have to pay back my insurance company?

    • fl_litig8r says:

      I think it’s worth pursuing — certainly it’s worth consulting with a lawyer or two. Liability sounds pretty clear, but proving your damages is something best left to a lawyer because it sounds like soft tissue injuries to your neck and back (which tend to be contested) and possibly post-concussion syndrome, which can be difficult to prove and may have long-term effects (sometimes a year or more). Obviously, I defer to whatever diagnoses your doctors have made, but this is what it sounds like to me from what you’ve described.

      You’ll likely need a lawyer to prove that the injuries you’ve suffered meet the “serious injury” threshold under New York’s no-fault law, which is what you have to do to recover any non-economic damages (pain and suffering and emotional distress) from the at-fault driver. It’s not as easy as it sounds, as they’ve created their own standard for what a “serious injury” is. I’d expect the liability insurer and your own UIM insurer to dispute this issue, because if they can prove that you haven’t suffered a serious injury, it eliminates a great deal of your damages (forget about the emotional distress over losing your life’s passion). In cases like yours in particular, where the serious injury threshold can’t be disposed of through an objective test like an MRI or X-ray, you should always let a lawyer handle it.

      With respect to your question about having to pay your PIP insurer back, generally you do not. I say “generally” because there are some complicated exceptions, but if both you and the at-fault driver are driving private vehicles and have the basic insurance required under New York law, your PIP insurer isn’t entitled to any repayment from the at-fault party’s insurer. The reason for this is because you aren’t allowed to recover from the at-fault driver any damages paid under your PIP insurance. In short, in most cases your PIP insurer can’t seek reimbursement from you because you can’t recover the money it paid for your losses from the at-fault party under NY law.

      • Laurel j says:

        Thank for the response and yes doctors state post concussion syndrome. I did speak to a lawyer a few weeks after the accident and he didn’t seem interested because it was hard to prove and he said it would likely go to trial. I understand he is a good lawyer, but I think they are interested in higher dollar cases. I will see if someone else might be interested. I am getting better and can function ok for most things, just my job is high level very cognitive and of course no riding.
        What I am trying to figure out is why my own insurance company seems to be pushing me toward filing against the at fault. They did have me sign a subrogation document that I am required to sign as part of the policy so I wasn’t sure if that meant they are going after the at fault for reimbursement like the did with my car. One other thing, if my issuance accepted the diagnosis such that they have reimburse me up to nofault limits for lost wages and time, does that make it easier to prove the loss going forward. Thanks again.

        • fl_litig8r says:

          I’d definitely approach a few more lawyers before giving up. As you surmised, some firms only take what they perceive as high value cases. They’re not always right about evaluating a case, and it doesn’t mean that you have a bad case if they turn you down. You may have better luck with smaller firms. Don’t judge the quality of a lawyer by his advertising budget. I know many small and solo practitioners who are brilliant attorneys. You just need to find the right fit for your case.

          The subrogation document your insurer had you sign may have been automatically issued just in case your case met one of the exceptions I mentioned. It also may apply to your potential UIM claim, as they’d have a subrogation claim directly against the at-fault driver for any amount they pay under that coverage. It’s unlikely that they’d ever pursue such a claim, but they go through the motion anyway. Who knows? Maybe he will win the lottery within a year.

          I wouldn’t assume that just because your insurer paid for your treatment under your PIP claim that either the at-fault driver’s insurer or even your own insurer under its UIM coverage will be as accepting. Auto insurers tend to be a little more forgiving when it comes to questioning claims under PIP coverage than under liability coverages — though they will question PIP claims if they think they’re paying for unnecessary treatment if push comes to shove. It might indicate that you’d have an easier time selling your UIM claim to them, but it might not. I wouldn’t read anything positive into it aside from being pleased that they aren’t jerking you around on your PIP claim.

  39. cris says:

    I was involved in an auto accident about a year and a half ago and i am done treating for my injuries. I went to a chiropractor who i treated with in a previous case some time ago, who was then with a treatment center where they had multiple doctors and and facilities to work with but in recent times broke off on their own. I figured this would benefit me because this person was so good working with me in my old case and did such a good job. I had it in my head that this would totally benefit me as far as making a recovery with my injuries and even better in being compensated form my loses cause they were so on the ball with there records that went to my attorney from the previous case.In this particular case this person has been the total opposite, not only were the records completely thrown together, they were just records that they made me fill out in their office, by checking boxes for pain levels that they finally gave up to my attorney and they also held them back for like 4 months after i was finished treating at there office when my attorney requested them. When i was treating with this particular doctor, they kept getting crazy with me arguing with me when I would ask about going to a specialist. They got nuts with me because I wanted an mri and they gave in to writing me a script to go get one, but then belittled me because the mri place charged like 1400$ off of my open pipp and they were so pissed that my insurance was billed that much, and that could not go in their direction I guess.I knew what they were aiming for they wanted to be the doctor to bill my insurance for the 5k that i had in medical to treat with from my car insurance. Now the paralegal in my attorneys office tells me today that this particular doctors office billed 365$ a visit for my 38 so called times that i went and has an unpaid 5 thousand dollar balance submitted to my attorney (this is after the fact of exhausting all the medical from my car insurance and being paid from it in entirely except the mri). this person turned out to be a total scum-bag in my eyes an to me is just trying to hurt my case. I have unpaid bills that have to be paid and also i had to use my own medical coverage after they exhausted my pipp. I had to to cont. with treatment and see the very type of doctors using my own insurance that they should have referred me to while i was treating with them along the way when i had the money allowances from my car insurance to treat and see those type of specialists.
    I am living borderline homeless at this point, have recovered no loses out of this case, and I believe its not going to settle for much due to the type of records that I have to show for the injuries I sustained. Now I am supposed to sit back and let this fraud case over bill me to stay attached to my case. I believe they are also doing this cause i would not continue to treat with them by way of letter of protection thru my attorney to bill my case after the fact of settlement . I did not want to continue with treating with them that way because i was so uncomfortable thinking of this cause of the way they acted about being the only doctor on the case preventing me from treating with other docotrs, so after my car insurance medical was exhausted I just wanted away from them because of how I felt about their seemingly unethical practices.
    My questions are: Can they get away with billing that much 365$ a visit for simple chiro adjustments? What if my case does not settle for enough money to pay there balance off or they refuses to accept what my attorney will try to negotiate? Can they try to bill me for the balance they are stating that is owed? Is there something I can do to protect myself from this type of unprofessional behavior ? I want to go to the licensing board on there ass and file a formal complaint , but will this do any good for my situation?
    Any advice I have an attorney but he is always on the go and is hard to get ahold of and is very fast with me on the phone. his paralegal tells me not to worry. I will more than likely be asking him all these questions but am always the type of person who wants more than one opinion or hear more than one answer especially to legal type questions.I figured i would start by requesting the EOB’s from my car insurance adjuster to see what in the heck they could be billing that kinda of money for in a tiny little chiro office with just and adjustment table and a handheld heat treatment device. Also to see if the EOB’s match up to what they are saying the balance is owed for vs the per visit charges,

    • fl_litig8r says:

      Whether they can get away with billing you that much per visit depends on whether this is a reasonable rate. Because most medical providers and patients don’t negotiate rates for particular treatments in advance, there is an argument to be made that in these situations only a reasonable amount for the care is owed. Having some hidden schedule of charges that a patient agrees to generally by signing up for treatment usually won’t be upheld by a court if the charges are unreasonable and out of the range of what is customarily charged by similar providers. Of course, litigating such issues will usually cost more than the charges themselves, so these disputes are typically resolved informally. PIP and med pay insurers will almost always limit their payments to the “usual and customary rate” for such treatment, so seeing how much your auto insurer paid per visit should give you an idea as to whether the chiropractor is charging the industry standard rate.

      I’d hold off on getting into this issue with them (or filing any complaints with the licensing authority) until your lawsuit is resolved. You may need the chiropractor’s help, for what it’s worth, resolving your accident claim. You were smart to stop seeing him, though. He sounds pretty sketchy.

  40. Ross [last name removed by admin] says:

    I was rear – ended in late 2006 in Washington State. My attorneys settled in mediation with the other company for 150K. They took out their 50K, gave me 50K (less costs), and held the other 50K in an Iolta Trust account for medical liens. The last I heard from them was early 2012 where they had negotiated the two smaller liens (15K), but the larger 35K insurance lien was still being negotiated down. They had agreed via email to consult with me first regarding the negotiated amount. Then, a subsequent email said that after they negotiated the final lien they would send me the remainder. When I asked to discuss, one attorney referred me to the other and then the other wouldn’t write or respond to calls. I decided to back off and wait. Their commission had already been paid and I wanted them to have the space to negotiate the lien down Vs just paying it off full price. If they were stringing me out to keep the money, I’d have to hire another attorney and that seemed complicated and expensive. I decided to give them some rope and hoped the liens would expire or I’d have more leverage or proof later if they didn’t handle the trust account monies properly. It’s now been over three years! I have not wanted to call the lien holder insurance company given I was “represented” and because it seemed best to let sleeping dogs lie.

    Note: There is a negative review online about my same two attorneys that alleges they didn’t pay off a 3rd party insurance lien which resulted in lien being filed against the clients personal property. Another situation where an experienced attorney hands off a case to a rookie associate.

    My questions under two scenarios are:

    1) If it turns out my attorneys never negotiated the final 25K medical lien, is there a statutory deadline for liens to be paid off in WA state? If the lien is not settled or a lawsuit filed by the insurance company in response, does the lien obligation “expire”? If so, is it 3 years or ten years or? If it is 3 years then now I could safely call the lien holders and ask them what was the amount they asked / settled for and if they got paid? However, I don’t want to wake up a creditor who could still come after me if I have no money or access to pay them from my settlement.

    2) If it turns out that my attorneys did pay the liens and kept the balance, what are my options? In this scenario I suppose if I would need to risk contacting the ins. companies as to if the liens had been paid, then I could write the attorneys for the remainder of the money. They might pay or, might string me out again. It sounds like Iolta Trust accounts are NOT managed by any authority that I could contact to inquire or complain to. Or, I could re-contact my attorneys and ask what happened, point out the 3 year delay, ask for an accounting and that my “money” be disbursed to me. I just don’t want to loose leverage and start the clock again. Perhaps I’m in a good position given the 3 year gap and just want the best ideas for a strategy either to get more information about my liens or initiate some legal claim. I’d rather not pay another personal injury attorney 40% commission and another lawsuit to recover my money and it might be difficult to find one who would go after their own kind for “simply forgetting” to return my money.

    3) Finally, what if my attorneys say they will give me money back but claim more fees? Can they charge any more fees at all given they already split up the money, charged me fees and simply held out 1/3 for liens? What might be reasonable fees to negotiate 3 medical liens past settlement? I have considered complaining to the state bar about all this, but that takes energy and doesn’t force them to pay me back. Thank you so much!

    • fl_litig8r says:

      1) I’m not a Washington lawyer. I don’t know much about their lien laws, but I found this article that may be helpful in answering your question. Note that this article only discusses enforcement under the lien law itself. It doesn’t affect any additional claim the provider may have under a general breach of contract claim. It appears that a provider can keep a claim alive under the lien law indefinitely as long as they timely update it. A breach of contract claim would be governed by the state statute of limitations for such matters.

      2) If your lawyers kept the balance, then your recourse would be a bar complaint and an action against them for conversion. Also, a criminal complaint would likely be warranted for theft. Before assuming the worst, exhaust your attempts to find out what happened. Follow my advice in this article about getting a return phone call from your lawyer. Involve the bar if necessary to have them contact you and tell you what happened.

      3) Your lawyers can only claim a fee if it was part of your original fee contract. Some lawyers these days are charging fees to negotiate lien reductions, but most are not. The ones who do must spell this out specifically in their contract. If your contract doesn’t say they get a fee for negotiating lien reductions, then they don’t.

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