A reader identifying herself as “Rachel” posed the following question in a comment on my “About” page (where no one would probably see it, so I decided to make an article out of it). Just to let you all know in advance, I’m not going to make a habit of answering such lengthy or specific questions, so if anyone else posts a question like this, prepare for disappointment. Short questions about topics covered in my articles and posted as comments are fine, but I named my website “I Do Not Want to Be Your Lawyer” for a reason. That being said, on to Rachel’s question:
Florida. Auto accident, at fault party cited 100% fault. Victim, in no fault state ( FL) with severe injuries has only 10K PIP and 5K med pay. The at fault party’s policy limits are 50K, the injured victim’s UM is 25K.
The injured is elderly, while not a direct Medicare recipient, they have a health plan ( advantage type) that Medicare recipients are able to get, by being Medicare eligible, but again not a direct recipient of Medicare ( the laws on subrogation of this are sketchy)
The injured victim was first seeing a chiropractor for 2.5 months and only XRAY’s of cervical and lumbar spine performed, yet the XRAY results mentioned severe cervical disc space narrowing, as well as particular language of lumbar disc herniations, as did the neurotesting done at same chiropractic facility.
Early report stated they would send patient for further testing ( MRI ) if problems persisted, this never happened. Family got involved and demanded MRI. The severity of injury as reported on Cervical MRI should be clear to the adjusters, given they claim medical literacy of serious injury and MRI’s.
A demand for policy limits was made after MRI, before a surgical consult was obtained. The carrier refused and repeatedly offered 3K ( less then the medical bills, granted at the time were only 6K, however, as said the MRI dictated severe injury of the cervical spine, herniated torn discs, deforming spinal cord, causing severe central central cervical stenosis, also stenosis of several foramina regions.
The carrier denied the MRI and medical evidence suggested severe cervical spine injury and then offered 10K. ( past the demand date ) The carrier acted in bad faith on many occasions, prior to this ( rejecting a Fl General Durable POA for the elderly accident victim ) Adjuster stated his legal dept stated a family member could not use this to discuss and settle the injured victims claim dispute ( which was finally resolved, mysteriously) Guess they realized the legal document is in FACT all needed.
The adjuster also told the elderly victim the pain and disability form MVA were the result of their AGE and not injuries from the MVA, in addition, went a step further and claimed to have medical records in hand that showed prior injury, because of this fraud the claimant demanded proof, which they could never produce, hence the claimant and injured victim had NEVER had any history of neck or back injury in their life, the adjuster was abusing the elderly victim at every angle possible.
The adjuster concealed the true policy limits of their insureds policy, this is known because the demand was made for 25K ( what the elderly injured victim thought the document said and when the POA demanded numerous times the policy limits in amount of what was thought to be 25K the adjuster NEVER corrected this and continued to lead all parties into believing the policy limits were 25K and not the true limit of 50K.
This has all been well established and documented for proof, and the POA has literally begged the carrier to act in good faith.
The injured claimant has finally gotten the neuro surgery consult and learned there is in fact Myleopathy and that ANY fall, bump maybe even sneeze could cause paralysis. The 3 level cervical fusion surgery is est to be 100K give or take.
The inured was elderly, but full time employed, now working VERY little just to eat and keep their job ) its the only way for them to survive, they work independent contractor ( as errand runner and driver, if they refuse all work given they will lose job completely, so they are forced to attempt some errands and drives because of the threat as well as needing some income to EAT and help supplement a small SS check monthly.
The claimant is unable to do anything as they normally did due to myleopathy ( used to golf 3 to 4 times a week, no longer able to do that at all, used to bowl, dance socialize) while driving a couple hours a day and running an errand here or there, that is killing the injured, they are laid up in bed suffering pain and obvious disability.
Given the injured needs a 100K surgery, given the total of policy limits ( both carrier and UM ) do not even total the cost of surgery. Given the severely injured claimant will have an obvious long recovery and no guarantee the surgery will repair the damage already done to the spinal cord…and obvious impact on future earnings, and given the MEDICARE subrogation laws….
This elderly severely injured claimant will be ruined not only physically, but financially.
Is this what the severely injured claimant deserves?
I realize Medicare or insurance plans want medical monies paid back they have had to forfeit, why should they PAY because neither policy affords the cost of even surgery, but what about the poor victim, through no fault of their own, having to live their last days in pain and severe disability, not able to work to even supplement the small SS check to eat, and live and ends up like this.
Is there a possibility to request full policy limits for pain, suffering, future lost wages for both policies totaling 75K, for the pain, suffering and future lost wages and be able to use their medicare ( ADVANTAGE PLAN ) for the surgery itself, which would secure the policy limits to enable the claimant food for the rest of their life and supplement income no they are no longer able to gain by working?
Well, Rachel, you said a mouthful here. To start with, I take it you have some connection to the legal field due to the terminology you’ve used (correctly). I can understand why the plaintiff would try to deal with this matter without hiring a lawyer, as the last thing you need when facing inadequate insurance coverage is a lawyer taking 33 1/3 – 40% of that coverage. However, once the tortfeasor’s carrier refused to tender its limits, the plaintiff should have hired an attorney, as she now has a potential bad faith claim that needs to be explored. This isn’t something a non-lawyer should attempt.
Also, you need to be very careful in Florida when dealing with UM coverage. Before settling with the tortfeasor’s liability carrier, you need to obtain permission from the UM carrier. I know this sounds odd, but this is required by statute so that the UM carrier can preserve its subrogation rights against the tortfeasor (in the event the tortfeasor might be able to pay an excess judgment). If the UM carrier refuses to give this permission, it doesn’t really affect the plaintiff, as the UM carrier must pay the plaintiff the amount of the tortfeasor’s liability insurance to make this refusal. In the case you describe, you’d send a letter to the UM carrier asking permission to accept the $50,000.00 BI limits, and the UM carrier can do one of two things: (1) send you a letter saying it’s o.k. to accept the limits and release the tortfeasor or (2) send you a letter saying you cannot release the tortfeasor along with a check for $50,000.00. Failure to obtain this permission from the UM carrier before accepting the BI limits will likely void the plaintiff’s UM coverage.
While this isn’t really an issue in the case you describe, as the limits were never tendered by the liability insurer, it’s just a warning as to a potential “trap for the unwary” a plaintiff can fall into if she doesn’t have a lawyer when settling her own case. On to your more specific questions:
Is this what a severely injured claimant deserves? Obviously not, but unfortunately the only real protection one has against an underinsured driver is adequate UM insurance. In this case, the plaintiff only had $25,000.00 in UM. This is fine for fender benders, but not nearly enough for any serious injury. I’m not trying to kick your plaintiff while she’s down, but I will use her as a cautionary tale for other readers who may not have adequate UM insurance themselves.
As to your more relevant question, which I read as “Can the plaintiff get the $75k in BI and UM, use the medicare advantage (MA) to have her surgery, and not give any of the $75k to the medicare advantage plan?” If this were a pure medicare case, I’d say absolutely not. With medicare, you’d have to set aside a portion of the settlement to reimburse medicare for future medical care (called a “medicare set-aside”). So you can’t avoid paying medicare by postponing a surgery until after the settlement. With medicare advantage, I’m not so sure (never had it come up). If you can get the insurers to pay limits and settle with the MA plan for past medicals before your plaintiff gets the surgery, this may be possible (I’d definitely hire a lawyer to make that determination, though).
If you’re asking whether you can settle the claim for policy limits and avoid repaying MA by cleverly not asking for any medical expenses in your demand, you wouldn’t be the first to try. Even if you can say that all of the settlement money was paid for things other than medical expenses, you’d still have to give the tortfeasor a full release of all claims, which would include medical expenses. In short, I doubt that there is a court out there that would support a characterization of the settlement as being for “other than medical expenses” when you are giving the defendant a full release. So, while I appreciate what you’re trying to do, I don’t think it will work. I think you’d have a better shot with the tactic of delaying the surgery until after you repay MA (it’s not like they can demand you pay in advance for a surgery the plaintiff may decide to never have).
I hope this addresses your question. If not, you can comment on this article (not on my About page please). If any readers have any experience with this situation involving a Medicare Advantage plan and subrogation claim, I’d encourage you to comment as well.