Wednesday, May 22, 2013

Personal Injury Rewards and Your Insurance Policy

One of the most difficult parts about suffering an injury from automobile accident is determining whether your insurance company, which paid for your medical bills, is entitled to reimbursement from you out of the settlement or payment after judgment.  Laws on this issue vary from jurisdiction to jurisdiction, and it is very important to understand what laws apply to you and your policy.  In addition, a recent United States Supreme Court decision may have clouded the waters even further.  Figuring out what the applicable insurance regime is and how to comply with the correct set of rules is a very important part in the process of making yourself whole.

In some jurisdictions, when a health insurance company pays your medical bills, the health insurance company has a right to recoup its expenditures on your medical bills from any compensation you receive from your personal injury claim.  This recoupment is called “subrogation."

If your insurance policy is written under Virginia law, your health insurance company does not have a right of subrogation.  A Virginia statute prohibits insurance policies that allow an insurance provider to subrogate “any person's right to recovery for personal injuries from a third person.”  Virginia’s “anti-subrogation” statute applies only to insurance policies arising under Virginia law.  However, even in Virginia there are federal laws, such as ERISA and national labor contracts that are superior to the Virginia “anti-subrogation” statute, and would, therefore, permit the insurance company to recoup its payments toward medical bills. 
Insurance policies written under the federal Employee Retirement Income Security Act (“ERISA”) allow subrogation.  ERISA also applies to health insurance plans which are self-funded, allowing employers to pay for medical treatment of their employees themselves instead of using an insurance provider.  Under ERISA and in jurisdictions with similar laws, insurance companies have a right to subrogation.  Therefore, if an insurance policy arises under this type of regime and the personal injury victim receives compensation, the health insurance carrier or the self-funded employer is entitled to subrogation.

Unfortunately, there are rare circumstances when these subrogation rights may result in the personal injury victim owing money even after receiving a damage award from a settlement or through a trial, which is what happened in the recent Supreme Court case United Airlines v. McCutchen.  In that case, an airline employee received his health insurance through his employer’s self-funded ERISA plan.  The policy was silent as to whether the airline should help pay for the employee’s legal fees in the personal injury case.  The employee won a monetary award, but the award was less than the amount he netted from the case after he paid his attorney’s contingency fee and litigation costs.  However, applying equitable principles of law, the Supreme Court interpreted the policy’s silence on the subrogation issue  to effectively reduce what the airline could recover based on a pro rata share of the legal fees and remanded the case for further proceedings.  The Court did not want a beneficiary of an insurance policy to become a collection agent for the insurance company absent a clear provision allowing such agency in the policy.

In response to this case, to avoid having their subrogation amount reduced to cover pro rata legal fees, many insurance providers are editing their policies to protect their full subrogation rights without an equitable apportionment of legal fees and costs. 

If you are injured in a traffic accident or other type of accident, it is imperative that you hire an experienced law firm, such as Gross & Romanick, P.C.  We will help you to navigate your insurance policy and enforce your rights.  Call us at 703-273-1400 or send us an e-mail to law@gross.com.  Visit our website at www.gross.com and download our Personal Injury App to your cellphone or iPad.

Uninsured/Underinsured Automobile Insurance Coverage

If you are injured in a motor vehicle accident in which another driver is at fault, you may be surprised to learn that the other driver does not have sufficient insurance to compensate you for your injuries. Under Virginia law you are entitled to payment for medical expenses, lost wages, pain & suffering as well as damages for change of lifestyle. However, Virginia only requires drivers to have a $25,000 bodily injury policy and in some circumstances, even allows drivers to be uninsured. If you are seriously injured, your total losses could easily exceed the financial cap of the other driver’s insurance policy. How do you protect yourself from drivers who have inadequate insurance?

The answer is to purchase uninsured/underinsured coverage from your own insurance provider. All insurance companies offer uninsured/underinsured coverage. This coverage provides compensation to individuals injured as a result of another driver’s negligence when the driver at fault does not have adequate coverage to compensate you for all of your injuries.

Beware! Uninsured/underinsured coverage can be tricky. Virginia law only requires payment from this coverage after all available third party insurance is exhausted. For example, if you sustain $50,000 in injuries and the responsible driver has $50,000 of insurance available and you purchased $50,000 of uninsured/underinsured coverage, you will receive nothing from your own policy. On the other hand, if you sustain $100,000 in injuries and the responsible driver only has $50,000 of insurance available and you have $100,000 of uninsured/underinsured coverage, you may be able to recover up to $50,000 from your own insurance policy. We recommend that you purchase $1 million or the most uninsured/underinsured coverage that you can afford.

Virginia Case Allows Stacking of uninsured/ underinsured coverage

In the 2009 case of Virginia Farm Bureau Mutual Insurance Company v. Williams, the Supreme Court of Virginia held that an individual injured in a car accident may “stack” the insurance coverage available under her own automobile insurance policies. In this case, a passenger was injured in an automobile collision. The combined insurance policy limits of the two automobiles involved in the accident was insufficient to cover her losses. The Virginia Supreme Court permitted the injured person to combine (or “stack”) the uninsured/underinsured policy limits from the three automobiles owned by her father. Because the Court permitted stacking, the total benefits available to her were increased and available to compensate her for the injuries she suffered in the accident.

The case is significant because in the past Virginia courts disallowed stacking. However, it is important to note that the decision was based on contract interpretation and not public policy. Many insurance companies have changed their policy language to avoid stacking. Nevertheless, the case demonstrates why it is so important to have adequate uninsured/underinsured coverage and a knowledgeable attorney on your side.

Hire A Personal Injury Lawyer With Experience

If you are injured in an automobile accident, it is critical that you hire an experienced law firm, such as Gross & Romanick. The Virginia insurance scheme is complex and extraordinarily difficult for an individual to navigate. Beware of lawyers who take automobile injury cases on an occasional basis but do not know how to seek the maximum insurance coverage that is available to the injured person.

Winning Your PI Case at Trial

Trial of a personal injury case, like the trial of any other type of case that proceeds through the judicial system, is governed by laws developed over hundreds of years.  Accident victims can only recover a money judgment upon proper proof at trial.

The accident victim must prove that the other driver was negligent and that the other driver’s negligence caused the accident victim’s particular injuries.  A plaintiff cannot recover for injuries existing prior to the accident, but can recover for an exacerbation of pre-existing injuries.  If the other driver (the defendant) can demonstrate that the injury was not the result of the accident, but rather from another event or the conduct of a third party, then the plaintiff cannot recover for that injury.

The personal injury plaintiff must prove the case by a preponderance of the evidence.  This means that the plaintiff must prove that it is more likely than not (1) that the defendant breached some duty of the road, such as ignoring a stop sign or failing to pay full time and attention; (2) that the defendant’s breach of such duty caused the plaintiff’s damages; and (3) that the plaintiff’s injuries are related exclusively to the accident or were exacerbated by the accident.

A major concern for accidents that happen in Virginia is that Virginia is a “contributory negligence” state, which means that the plaintiff must be entirely free of fault for the accident.  If the Plaintiff contributed to the accident in any way, then the Plaintiff is barred from recovery.  This does not mean that the Plaintiff needs to be free of any violation of traffic laws, only that the Plaintiff be free of negligence that causes the accident.  By way of example, consider a Plaintiff that is texting at a red light when she is rear ended by a Defendant.  Texting in Virginia while driving (even if stopped at a light) is against the law. However, the Plaintiff in this case may still recover because the Plaintiff’s texting did not cause the Defendant to rear-end the Plaintiff’s vehicle.  Rather, the cause of the rear-ender was the Defendant’s failure to keep a proper lookout and failure to brake in a timely manner.  However, one should note that even a subtle change in the facts could bar Plaintiff’s recovery.  If the Plaintiff failed to accelerate when the light turned green because she was texting and did not notice the light change, then the Plaintiff may be prevented from recovery. 

The most important issues in the vast majority of personal injury cases are the issues of damages and causation.  Most of the time, the Defendant will concede negligence.  In a great number of cases, the Defendant will concede that the Plaintiff was not contributorily negligent.  However, the Defendant will vehemently suggest that the Plaintiff’s injuries are inflated, nonexistent or not a result of the accident.  Since the injuries in an automobile accident case results in medical expenses, it is imperative that anyone considering a personal injury case ensure that the medical documentation regarding treatment correctly and accurately reflect that nature and cause of injury.  Medical documentation that suggests, even off-handedly, that a concussion, for example, was caused by a fall rather than the automobile accident at issue can present a large hurdle to overcome at trial.  In addition, in the event that the injured party loses time at work, an employer that fails to document the reason for missing work resulted from injuries sustained in the accident can reduce the likelihood of recovering lost wages. 

In order to be successful at trial, it is imperative that the potential personal injury plaintiff prepare proof that the other driver’s negligence caused the accident and secure documentation of damages (medical, employment, etc.) resulting from the accident.  This evidence, combined with a skilled trial lawyer, will result in a personal injury verdict that is reasonable, fair, and appropriate compensation for any victim of an automobile accident.

If you are injured in an accident, consider using an experienced law firm, such as Gross & Romanick, P.C.  Call us at 703-273-1400 or send us an e-mail to law@gross.com.  Visit our website at www.gross.com and download our Personal Injury App to your cellphone or iPad.