What is Subrogation & Why Should I Care?

“I was hurt in a wreck, a now my health insurance company sent me a letter seeking something called, ‘subrogation.’”

“What on earth is this?”

“Can they take part of my settlement?”

We often hear this from clients who have been hurt in a car wreck and who have health insurance through their employers or “medical payments” (“med pay”) coverage on their auto insurance policies.

Subrogation is an ugly word and an ugly legal concept created by insurance companies to fatten their wallets. It is akin to a bait and switch sales technique.

Subrogation is a legal concept that permits an insurance company to recover payments it has made on behalf of its insured for injuries the insured has received in a wreck/other accident that is the fault of another. So, in the traditional car wreck case, if the injured party has health insurance from one of the big health insurance companies, the health insurance company will most likely assert a right to recover payments it has made on behalf of its insured. The company will assert this right against its insured and seek to attach its “subrogation right” or “right of reimbursement” to any settlement the insured obtains from the defendant who caused the injury.

In other words, subrogation is a bait and switch. The insured pays good money for premiums for health insurance. The insured acts reasonably in doing so and expects the coverage to be there when they are hurt by the negligence of another. When the insured goes to settle their case, the health insurance company expects its money back, despite the insured having paid separate premiums for the coverage to begin with. The “bait” is that the coverage will be there when you are hurt. The “switch” is that the coverage is not really there as you may have to pay back your health insurance company, despite you paying premiums for such coverage to begin with.

The same concept applies to med pay riders on auto insurance policies. To the uninitiated, med pay is a type of coverage on an auto policy where your auto insurance company will pay for medical bills for you and your passengers resulting from a wreck. Med pay also seeks subrogation in the same “bait and switch” fashion as major health insurance companies.

It was in recognition of the basic unfairness of subrogation that the Georgia legislature passed its anti-subrogation statute, OCGA 33-24-56.1. This statute bars subrogation as a matter of state law and codifies an anti-subrogation doctrine, “the made whole doctrine.”

The made whole doctrine is so basic and fundamental that it is already ingrained in the sense of fairness of many clients that I have talked to. I will hear in client meetings that the client just wants to be “made whole” after a wreck or wants to be “put back to where I was before the wreck.” This is the guiding force of the doctrine. The doctrine says that there can be no subrogation without the injured party first being “made whole.” Since any settlement involves compromise, it is very unlikely an injured party could be made whole by a pre-verdict settlement. In fact, probably the only time an injured party can be said to be made whole is after a jury verdict awarding damages.

The sad news it that the Supreme Court of the United States, the Eleventh Circuit Court of Appeals, and many state legislatures have, for the most part, rejected the made whole doctrine and permitted the unfair practice of subrogation to occur. Generally speaking, if you have a health insurance plan through your employer, they will most likely have a subrogation right against your settlement if the health insurance pays medical bills resulting from the wreck. The same holds true for med pay in states that do not recognize the made whole doctrine, such as Alabama. However, there are other doctrines and defenses to subrogation that an experienced personal injury lawyer can use to defeat or diminish a subrogation claim. Therefore, if you are hurt in a wreck and have health insurance, your best bet to avoid the bait and switch is to hire an experienced personal injury attorney who can appropriately advise you.

Hot Coffee Anyone?

There is no doubt that one of the most widely talked about personal injury cases of the last 30 years is the "McDonald's Coffee" case. The stuff of legend is tossed around about how a woman had hot coffee spilled on her and won the "litigation lottery" for millions. This case (or rather the rumor mill and exaggeration which has spun out of it) has been the banner for tort reform for years.

What is reality however, is that the true facts of the case, the arguments made, and the actions of the attorneys involved are never actually talked about. Instead, accusations are flung and soundbites are echoed like a politician firing up the masses all to root out injustice.

Lost is the truth behind the American Civil System, the fairest legal structure in the world, backboned by our amazing courts and juries that truly allow an individual to be heard and their rights protected.

With that being said, a documentary will be airing soon that shows this side of the coin. The side that says stop listening to those who say that "frivolous" lawsuits are ruining our country. Our courts and government already have checks in place to prevent such from gaining traction. There is no need to poison the mind of every juror that anyone claiming injury is a liar, a fake, or just should've known better. People are hurt by the actions (or inactions) of others every day and our civil justice system is what ensures everyone remains accountable to one another.

Tune in to HBO on Monday June 27, at 9pm Eastern for the award winning "Hot Coffee" by Susan Saladoff to learn more about the case behind the myth. If you miss it, you can always check out the website: http://hotcoffeethemovie.com/ Or view the trailer below:




Hope you tune in.
-JBS

Dealing with the ARMY when You are in a Wreck

If you are an active duty soldier and injured in a wreck while stationed at Ft. Benning, Georgia, you will have a lot of paper flying your way.

Initially, if the wreck occurs on a military post, you will have “Freedom of Information” forms to fill out just to get access to basic information about the accident. This can cause weeks of delay just to find out who else was in the car wreck. You might also have to go to a court proceeding in Federal Court to testify… even if the car wreck was not your fault. All of this will have to be done before you might even speak to anyone about fixing your car or paying it off if it is destroyed by the wreck.

We find that our office can be helpful in such situations in working with military families and their dependants due to our familiarity with Ft. Benning and its policies.

If you need medical attention, you will face other questions like:

1. where should you go?
2. how do you get a referral from the post?
3. will you have to treat with a military medic at Ft. Benning?
4. can you see a civilian doctor in Columbus, Georgia?
5. will the injury or treatment negatively impact your military career?
6. will you be on profile?

Again, there are options – both on post and off- that you should be aware exist in order to make informed decisions.

Of course, the medical team assigned to you will know best, but if you need a second opinion or other options, our office has found that we can provide good information which helps families in this area.

There are other issues that arise – from dealing with the reimbursement claims of the JAG office to getting recognition of the impact of a profile on your career goals. Sometimes it helps to have a lawyer familiar with these issues available for consultation.

Whatever your needs, whether you are active duty military, a military dependent, or a civilian working with the federal government here in the Ft. Benning area, we can help if you find yourself questioning what to do and how to get the medical attention and compensation you deserve.

Of course, our personal injury attorneys work on a contingency fee basis – no fee for us if we don’t recover for you – and can meet you at your convenience on post, at the hospital, or at your home. If you have moved away or TDY’d to some remote place, don’t let that stop you – we have represented military families across the world and are happy to help with more advice.

If you'd like to know more, just click on this posting's title to go to our firms webpage devoted to this topic or click here for our website.

-Law Offices of Gary Bruce

LANDLORD-TENANT RELATIONSHIP & PREMISES LIABILITY IN GEORGIA

More and more people in our community – especially those who are new to the area - are choosing to rent instead of buy a home. While most of us are blessed with a caring, responsive landlord who takes care of dangerous conditions on his/her tenant’s rental property once notified of the problem, there remain some who apparently choose to do nothing and hope no one gets hurt.

If a tenant is unlucky enough to have a landlord who doesn’t repair the rental property, despite repeated requests, that tennat needs to know that his or her family has rights. Common examples of dangerous conditions on a rental property include a leaky ceiling, a door or window lock that needs replacement, or a defective stove, oven, or heater. All of these conditions can lead to injury to the occupants of the property.

Fortunately, in an attempt to address the “non-caring” landlords, Georgia’s legislature and Courts have defined that the public policy of the State of Georgia is to require that the landlord provide a tenant with a rental property free from disrepair and structural defects. This was the precise holding of Georgia’s Supreme Court in Thompson v. Crownover, 259 Ga. 126, 128 (381 S.E.2d 283)(1989). This is perhaps THE most important case in Georgia concerning a tenant’s right to live in an apartment or rental home free from dangerous conditions.

In the Thompson case, the landlord provided the tenant with a shoddy gas heater that had no protective cover. It was the only source of heat for the home. The tenant, who had several children residing with her, informed the landlord that the heater was dangerous and requested that the landlord repair it. The landlord did not. The tenant tried to repair the heater herself, but she was not able to obtain a protective cover of the appropriate size to safely operate the heater. The repair was unsuccessful. The gas heater deteriorated even more, and open gas flames were exposed after its top fell off. Eventually, the tenant’s clothes caught on fire in an accident, and she was seriously burnt—all as a result of a negligent landlord. The Thompson court went on to hold that there are two public policies in Georgia concerning landlord-tenant relationships and dangerous conditions on a residential rental property:

(1) Georgia’s public policy is to impose upon the landlord liability for damages to others from defective construction and failure to keep the rental premises in repair; and

(2) Georgia’s public policy favors preventing unsafe residential housing.

Essentially these policies mean that if you are hurt due to a landlord’s failure to promptly fix a dangerous condition on the rental property that you notify them about, they may be liable to pay for injuries to you or another. These public policies provide strong support for a tenant/tenant’s guest who are injured by a dangerous condition on his landlord’s land. Also supportive is the legislature’s codification of the landlord’s duty to repair in OCGA 44-7-14. There may also be federal housing codes that apply to the landlord, depending on the type rental property. Finally, it is not enough for a landlord to say “I tried to fix it,” if the dangerous condition is not, in fact, properly fixed. A landlord can be held liable for failing to properly fix a dangerous condition. See Atkins v. MRP Park Lake, L.P., 301 Ga. App. 275, 278 (687 S.E.2d 215) (2009) (“A landlord is liable for damages when the repairs he has a duty to make are completed negligently so that a defect in the premises remains despite the attempted repair.”).

In summary, landlords and tenants have a special legal relationship under the law pursuant to the public policy of Georgia. A tenant does not have to sit back and “take it” when a landlord refuses to fix a dangerous condition. If a tenant knows of a problem , they should first tell the landlord and follow that notice up IN WRITING. If it persists and the tenant is later injured by that dangerous condition on the property they should contact a lawyer immediately as the landlord may very well be liable. - MPJ

Solicitation by Lawyers and Professional Ethics

Over the years, there has been a troubling practice of solicitation by lawyers. It is that practice that has led to the “ambulance chaser” moniker that some use to label lawyers.
The truth is that such behavior is unethical and illegal in addition to being a gross invasion of a family’s privacy. We feel that an informed decision based on interview of the lawyers and his staff and personal recommendations are the most appropriate way to select a lawyer when help is needed.
Several years ago, lawyers in Georgia (mostly in the Atlanta area and some who came to Columbus for fresher pastures) were able to obtain copies of police reports from the police station each morning and then went to work calling on the victims throughout the day looking for cases. Fortunately, the legislature tightened up on such practices and now limits who can obtain the police reports.
Remarkably, some lawyers still find ways to try to “get the case”. We have heard of lawyers who hire staff to listen to police monitors and go to accident scenes to collect photographs – only later to “offer “ those photos to the victims and solicit representation. Others have reported that cards are passed out at hospital ER rooms and calls are made to family members shortly after being released from the hospital. Still others find a way to obtain information from police and hospital sources and follow up those leads with calls. Injured persons should know that it is illegal for attorneys (other than those who are personal friends and family members) to have themselves or someone else on their behalf solicit the injured in person by contacting them directly (known as "direct personal contact") or by calling them on the telephone ("live telephone contact"). See Georgia Rules of Professional Conduct 7.3.
Recently a man who claims these practices occurred in Alabama took action and filed a lawsuit against the firm which they claimed had acted improperly. A summary of that recent case is attached here.
The lawyers and their staff are now having to answer to these allegations in court.

If someone you don't know slips you a card, or calls you at home to "help", be suspicious. Most of these "helpful" calls - even those from a hospital representative - are probably not made in your best interest.

If you think these practices are improper, you are not alone. Make sure that you find an ethical attorney who complies with the Georgia Professional Rules of Conduct and has not sent a "runner" on their behalf to solicit you during your time of loss or hardship. If you have been illegally solicited by an attorney or a "runner" consider how that reflects on the firm and why they would resort to such tactics. By all means find another attorney and report the conduct to the State Bar of Georgia at 1-800-334-6865 or the Bar Association governing your jurisdiction.