Articles Posted in Subrogation

Insurance lawyers understand subrogation policies.  Courthouse News Service published an article on April 18, 2017, that should be read.  It is titled, Justices Back Insurance Subrogation Policies.

Reinforcing insurance subrogation provisions, the U.S. Supreme Court was unanimous Tuesday that federal regulations clearly put state laws second to such policies.

The case stems from efforts by Missouri postal worker Jodie Nevils to keep the proceeds of his car-crash settlement out of the hands of the insurance company that already paid him $6,000.00.

Subrogation is a big issue to be dealt with by Dallas insurance attorneys. The efforts to collect on subrogation rights is discussed in an article published by Bloomberg News in June 2015. It tells of a lawyer instrumental in the collection efforts, George Rawlings.

The article tells us George Rawlings grabs a stack of computer printouts and stretches them six feet across his office, admiring data from police reports of Florida auto accidents: the names of those hurt and the severity of their injuries.

For Rawlings, this information is gold. It’s his job to track these injured people down and collect money from them.

Lawyers and attorneys handling insurance claims in the Dallas and Fort Worth areas need to be able to discuss subrogation issues with clients who have been injured by third parties. Bloomberg Businessweek published an article on April 7, 2015, that discusses this issue. It is titled, “How An Insurer Is Taking Money From The Fan Beaten At Dodger Stadium.” Here is some of what it tells us.

First he was assaulted for wearing the wrong team’s clothes. Then he was sucker-punched by the insurance system.

Four years ago, Bryan Stow was a strapping paramedic who spent his days off biking with his son and daughter. That was before March 31, 2011, when he and three friends made the mistake of wearing San Francisco Giants garb to an Opening Day game against the rival Los Angeles Dodgers at Dodger Stadium. They were harassed and threatened in the stands. Afterwards, two Dodgers fans beat Stow so savagely in a parking lot that doctors had to induce a coma to save him. He was hospitalized for seven months.

Dallas insurance attorneys will sometimes run across semi-complicated subrogation issues. One of these situations arose in a 1998, Dallas Court of Appeals case styled, Universal Underwriters of Texas v. Transamerica Insurance Group, et al. Here is some of the relevant information from that case.

The case is a subrogation case between two insurance companies who settled a case. Morris was an employee of Race Promotions Management, Inc. d/b/a the Dallas Grand Prix. The Grand Prix had borrowed a 1988 Corvette owned by Young Chevrolet for promotions. Morris was involved in a single car accident which killed his passenger, Bradshaw. Morris was legally intoxicated. Bradshaw’s parents sued Morris and Young Chevrolet alleging negligence and negligence per se against Morris, and negligent entrustment and strict liability against Young Chevrolet. Young Chevrolet brought a third party action against Grand Prix as Morris’ employer. Universal insured Young Chevrolet and Transamerica insured Grand Prix. Transamerica, Universal and others settled with the Bradshaws for $695,000. Universal paid $275,000 on behalf of Young Chevrolet. Allstate paid $20,000 on behalf of Morris under his personal auto policy. Transamerica paid $400,000 in return for which the Bradshaws released Morris, Race Promotions Management, Southway Management Corporation, Grand Prix, Ronald Scott Wheeler, Darryl Snaden, Southern Sports Management, Allstate, Transamerica, and the adjuster. In all, the Bradshaws released ten individuals and entities.

After settling with the Bradshaws, Transamerica brought a declaratory judgment action against Universal asserting that Morris was insured under Universal’s policy. Transamerica’s policy provided that it was excess over any other collectable insurance. The trial court concluded that Transamerica proved that Morris was an insured under Universal’s garage policy, granted Transamerica judgment for the remainder of Universal’s policy limits of $225,000, as well as $30,000 in attorney’s fees. Universal filed this appeal.

Arlington insurance attorneys will run across situations where a person, on purpose or by accident, has two insurance policies covering the same property. So what are some of the possible outcomes of this situation? A 2005, Fort Worth Court of Appeals opinion had this issue. The style of the opinion is, Harris v. American Protection Insurance Company. Here is some of the relevant information from that case.

This case arises from two insurance claims for successive casualty losses to the roof of a shopping mall.

On May 5, 1995, a severe hail storm damaged the roof of a vacant building known as Westridge Mall. At the time, the shopping mall was covered by two insurance policies, one issued by American and the other by Aetna Life & Casualty. Each policy effectively covered fifty percent of the loss and named Southwest Portfolio as the insured. On September 6, 1995, roofing contractor Gary Boyd discovered the hail damage during a warranty-related roof inspection. Southwest made a claim for the hail damage under the Aetna policy on October 6, 1995. Because it was unaware of the American policy, Aetna agreed to cover one hundred percent of the loss and settled the claim for $712,612.50. In accordance with the settlement agreement, Aetna paid Southwest $268,445 for the actual cash value of the loss (“ACV”) and retained $444,167.50 as the replacement cost holdback, which would be paid out as repair costs were incurred.

Tarrant County Insurance Attorneys need to understand how insurance claims work with subrogation issues. The Texas Supreme Court, in 2006, issued an opinion as it relates to subrogation and Personal Injury Protection (PIP) benefits. The style of the case is Allstate Indemnity Company v. Forth. Here is what the opinion says.

In this breach of contract suit, the Court considered whether an insured has standing to sue her insurance company for settling her medical bills in what the insured considered to be an arbitrary and unreasonable manner. In reversing the trial court and remanding the case for trial, the court of appeals concluded that the insured had standing even though the insured had no out-of-pocket expenses, and her health care providers had not, and now could not, collect any additional sum from her.

Because there are no allegations that the insured suffered damages or that the manner in which the insurance company settled the insured’s medical expenses caused her any injury, this Court concluded that the trial court was correct to dismiss her suit, and accordingly reversed the court of appeals’ judgment.

Dealing with hospital liens is a common experience for attorneys dealing with insurance companies. This recent Texas Supreme Court is a must read. It is styled McAllen Hospitals v. State Farm. Here is what the case tells us.

To assist hospitals with securing payment for medical services provided to accident victims, Texas Property Code chapter 55 (the Hospital Lien Statute) allows a hospital to file a lien on a patient’s cause of action against a person whose negligence caused the injury that necessitated the patient’s treatment. If the hospital’s charges secured by a proper lien are not “paid” within the meaning of the statute, any release of the patient’s cause of action is invalid. In this case, two patients treated at the petitioner’s hospital settled with the negligent third party. That party’s liability insurer made the settlement checks jointly payable to the patients and the hospital and delivered the checks to the patients, who deposited them without the hospital’s endorsement. The issue presented is whether the hospital’s charges were “paid” under the Hospital Lien Statute and the Uniform Commercial Code even though the hospital never received notice that the settlement funds had been delivered to the patients and were never reimbursed for the treatment costs. This court said no.

Gil and Hernandez settled with Benavidez for $5,200 and $2,100, respectively, and released their claims against him. The Hospital was not a party to the releases, nor was it informed the parties had settled. State Farm, aware of the Hospital’s liens, informed Gil that he was responsible for paying the Hospital for its services out of the settlement funds. State Farm issued Gil’s settlement check payable to “Jose Antonio Gil & Rafaela Balderas, Individually and as husband and wife & McAllen Medical Center,” and issued Hernandez’s check payable to “Melinda De La Garza Hernandez, a Single Individual & McAllen Medical Center.” State Farm sent the checks to Gil and Hernandez without notifying the Hospital. Both Gil and Hernandez deposited their settlement checks without the Hospital’s endorsement. The Hospital’s charges for treating Gil and Hernandez remain outstanding.

Weatherford insurance attorneys already know there are situations where a settlement with an insurance company has to, in part, go to satisfying out-standing child support liens.

Under Texas Family Code, Section 157.317(a), a lien for unpaid child support attaches to the child support obligor’s personal injury claim. This lien is inferior to that of a health care provider with a valid lien, and a child support lien does not attach to the injured party / child support obligor’s attorney fees in the personal injury case. Actual notice of the lien is required for enforcement. These liens arise by operation of law and attach to all of the obligor’s property, as well as to an injury claim. Texas Family Code, Sections 157.261(a) and 157.312(d) make this clear.

Child support liens may be filed with the County Clerk in the county where the injury suit is filed, the county where the divorce (or suit in the interest of the child) originated, or in the county of the child support obligor’s residence. Child support isn’t just for dads, either; a court may order either or both parents to pay support pursuant to Texas Family Code, Section 154.001.

Grand Prairie insurance attorneys need to know how subrogation and liens work as it relates to insurance claims. One of these interests to be aware of is the Veterans Administration rights to recover money they spend on behalf of their members.

The reimbursement rights of the Veterans’ Administration are statutory, and are set forth the United States 4th Circuit Court of Appeals case styled, United States v. Maryland. It is a 1990 case. It says that “Federal law pertaining to veterans benefits places the United States on an equal footing with private hospitals in its attempts to recover from third parties the cost of medical services provided veterans for non-service related injuries.” Such equality is ensured by 38 U.S.C. Section 629(a)(1), which provides:

“In any case in which a veteran is furnished care or services under this chapter for a non-service connected disability … the United States has the right to recover or collect the reasonable cost of such care or services … from a third party to the extent that the veteran (or the provider of the care or services) would be eligible to receive payment for such care or services from such third party if the care or services had not been furnished by a department or agency of the United States.”

Fort Worth insurance lawyers need to have an understanding as to how to handle subrogation interests and liens. As for Medicaid, maybe this will be helpful.

Medicaid is a Federal program which is administered by the State. When discussing Federal Government liens and subrogation claims, it is prudent to assume that such liens attach and are superior to other liens, even if a person has no actual notice of them. There is case law and statutes that apply. As to the statutes see, 42 U.S.C.A. 1395(y)(b) and 42 C.F.R. 411.20, 411.23, 411.24, and 411.26. However, a Medicaid lien and a Medicare lien are very different creatures, especially following the United States Supreme Court case, Arkansas Department of Health and Human Services v. Ahlborn. This case suggests there may be room for parties to discuss reductions of Medicaid liens. The United States Supreme Court held that Medicaid subrogation would be limited to the funds allocated to medical costs. A copy of the 2006 memo setting forth the Federal Government’s position on Ahlborn’s impact on Medicaid reimbursement / subrogation is available on the Internet at: http://www.nasmd.org/issues/docs/CMS_Advisory_Settlement_Options_July%202006.doc This memo contains the following language about the Ahlborn decision: “A State’s lien laws may only operate to recover from that portion of a settlement that is allocated to healthcare items or services, even if it means that Medicaid must forego full recovery of its claim.” The memo included the following section:

What This Means for Medicaid Third Party Liability Recovery Programs: