It's iffy in Florida. Some cases say you board it all and handle the setoffs post verdict, others suggest you only board the liens. Also depends on who the payor is. It's better practice to get the lien early anyway because I find it more effective for negotiation during mediation.
If I'm going to mediate a case, I'm going to have the lien holder on speed dial and the lien prior to mediation. The federal magistrates basically require that as well prior to settlement conferences. If I'm deep enough in a case to mediate and an ERISA carrier hasn't put me on notice, then they likely are never going to.
I don't know anything about liposuction, but bowel perforation cases are almost never cases here. I review a million bowel and bladder perforation cases every year and turn them all down. Usually is a known complication or risk and the only way it is a case is if they fail to appreciate the injury, diagnose it, and treat it and it becomes a catastrophic injury.
I guess they have software that combs through medical records and if they see the word MVA/MVC etc then they write the insured and put them on notice. Also to answer your question: I have no clue how they know I'm the lawyer but I receive correspondence from them all the time.
We almost never notify health insurance about our clients and they find us all the fucking time but yes if they don’t put us on notice of health insurance lien we are not paying it have had a few try to contact me after settlement funds were disbursed and I always tell them tough shit and nothing has ever happened
Agreed. I hate insurance and have no desire to learn about it. But every time I have to deal with insurance, I end up picking up the phone and asking someone else to explain it to me, winging it, or saying fuck if. Mandatory class would have sucked at the time but been useful now.
It would have to be taught by an adjunct to be useful. Some dickhead law professor who has never practiced a day in his/her life trying to teach anything practical about insurance would be as useless as con law
Have to be a little careful there. The ERISA plans have language in there that says the insurer is responsible for notifying the plan of any outstanding claims. If they wanted to be dicks, they could go after your client later.
The Montanile case from the US Supreme Court says that if your client spends all the funds that ERISA lien holder is claiming, and the assetts from the funds aren't traceable and the money isn't commingled in the clients bank account, then the ERISA plan is screwed. So if you give your client the money and they spend it on stuff that isn't traceable (not sure what all this would be, what if they put it into an index fund and the money was invested in millions of different stocks), the ERISA lienholder is screwed. Spoiler Robert Montanile was injured in a car accident and his ERISA group healthcare plan paid his medical expenses, totaling $121,044. Under the plan’s terms, acceptance of benefits constituted an agreement that any amounts recovered from another party will be applied to reimburse the plan in full for benefits advanced by it. Under Supreme Court precedents, this would create an equitable lien in favor of the plan if Montanile received a judgment or settlement for medical expenses paid by the plan. Montanile obtained a $500,000 settlement for his injuries. After payments to his attorneys, $240,000 remained of the settlement, most of which those attorneys held in a client trust account. The plan sought reimbursement of the medical expenses it had paid. After discussions failed to resolve the matter, one of Montanile’s attorneys informed the plan that he would distribute the remaining settlement funds to Montanile unless the plan objected within 14 days. The plan did not respond within that time, and so the attorney gave Montanile the remainder of the funds. Because ERISA generally preempts state claims related to ERISA benefit plans, the plan’s only recourse was a suit for “appropriate equitable relief” under Section 502(a)(3). Six months after the reimbursement negotiations with Montanile broke down, the plan filed suit against him, seeking to enforce its equitable lien and to enjoin him from dissipating any such funds. Montanile argued that because he had already spent almost all of the settlement, no identifiable fund existed against which to enforce the lien. The lower courts, including the Eleventh Circuit, rejected Montanile’s argument and held that even if he had completely spent the settlement proceeds, the plan was entitled to recover out of Montanile’s general assets. Along with the Eleventh Circuit, the First, Third, Sixth and Seventh Circuits had held that “appropriate equitable relief” permitted enforcement of a plan’s lien against a participant’s general assets. The Eighth and Ninth Circuits had disagreed and had held that “appropriate equitable relief” only permits the plan to recover from specifically identified funds in the beneficiary’s possession or assets “traceable” to those funds. By an 8-1 vote (with Justice Alito agreeing with the result but not all the Court’s reasoning), the Supreme Court reversed the Eleventh Circuit and held that the plan’s right to “appropriate equitable relief” did not permit a judgment against Montanile’s general assets, but only against funds related to the settlement. Writing for the majority, Justice Thomas said that, under Sereboff, whether the remedy a plaintiff seeks is legal or equitable depends on the basis for the plaintiff’s claim and the nature of the underlying remedies sought, which are determined by looking at “standard treatises on equity,” which establish the “basic contours” of what equitable relief was typically available before the merger of law and equity courts. As discussed in those treatises, a plaintiff ordinarily could not enforce an equitable lien if the defendant dissipated the separate, identifiable fund to which the lien had attached. The plaintiff could not attach the defendant’s general assets because that is a legal remedy, and not “appropriate equitable relief” under Section 502(a)(3). The Court rejected the plan’s argument that CIGNA adopted a broader interpretation of Section 502(a)(3) and insisted that the Court’s narrow interpretation of “appropriate equitable relief” was unchanged. The Court stated: CIGNA reaffirmed that “traditionally speaking, relief that sought a lien or a constructive trust was legal relief, not equitable relief, unless the funds in question were ‘particular funds or property in the defendant’s possession.’ * * * In any event, the Court’s discussion of §502(a)(3) in CIGNA was not essential to resolving that case, and — as our later analysis in US Airways, Inc. v. McCutchen * * * reinforces—our interpretation of “equitable relief” in Mertens, Great-West, and Sereboff v. Mid Atlantic Medical Services, Inc., * * * remains unchanged. [Citations omitted.] The Court also said the lien could be enforced to the extent Montanile had purchased “traceable assets” with the settlement or commingled the settlement proceeds with a different fund. The lien would survive in these circumstances and commingling would allow the plan to recover the amount of the lien from the entire commingled fund. This appears to mean that if Montanile had deposited the settlement proceeds in his bank account or used the funds to buy “traceable assets,” the plan could enforce its lien against what was left in the bank account or against assets purchased with the settlement funds. The plan asserted that tracking assets and participating in legal proceedings is hard and costly, and that settlements are often shrouded in secrecy. The Court concluded that the facts of the case undercut that argument: The [plan] had sufficient notice of Montanile’s settlement to have taken various steps to preserve [the settlement] funds. Most notably, when negotiations broke down and Montanile’s lawyer expressed his intent to disburse the remaining settlement funds to Montanile unless the plan objected within 14 days, the [plan] could have − but did not − object. Moreover, the [plan] could have filed suit immediately, rather than waiting half a year. The Court remanded the case to the lower courts to determine whether or the entire settlement fund was dissipated.
Have a case where a guy in a leased vehicle who carried state minimum limits ($25k) wrecked into my client causing massive damages way in excess of the $25k and of course my client has no UM. My client seems to think that someone with a leased vehicle is required to carry a certain minimum amount of insurance which they think is $100k based on something they found online. Let's say my client is correct and the guy had $25k but should have had $100k per the contract with the dealership. That still doesn't give my client a cause of action against the dealership. The dealership isn't going to have any extra coverage that is going to kick in and help either. I don't think my client's theory has any merit and the fact that it was leased doesnt help us at all.
the plaintiff's bar in florida needs to get off their asses and force the legislature to get rid of PIP and adopt a 25k minimum policy.
This could be a good backstop. I just fired off my “long dick of the law” letter this morning and telling them I’m rescinding my prior $20k offer. Let’s see what happens.
Client came back in today, admitted she was mistaken in her understanding of the contract, signed the settlement statement , and signed the release. All's well that ends well.
Now if your client buys a lambo and a gold chain and still has said lambo and gold chain, do you think an ERISA plan would hire an attorney to litigate enforcement of the lien then a collections lawyer to go get a judgment and execute and seize those items? I'm guessing some would on a matter of principle and some wouldn't because it's too much of a hassle.
Definitely have seen insurance carriers do things that are a boondoggle on a matter or principle and stubbornness or to set a precedent
Florida requires a 100k minimum on leases. But not sure you can go after the dealership for not enforcing it.
Is it 100k for liability ? Or 100k for collision coverage to make sure the lessor will have enough coverage to ensure the vehicle gets repaired or paid for if they wreck or total it?
The policy probably has a provision that says coverage/limits conform to the requirements of state law. For example, a minimum limits policy in Florida will convert from $15k to $25k if the wreck happens in Alabama
Not sure I’ve ever had a better treating doc depo. Asked 0 follow up questions, actually ended by saying that went great I don’t have anything further OC immediately asked if we wanted to mediate
Speaking of treating physicians, I have a commercial vehicle death case where OC is disputing that the wreck eventually is what killed my guy. I took a flier and asked the head of the ICU at the venue's local hospital if he'd opine on causation and he said yes to my surprise. Typically he gets disclosed as an expert by defense counsel in med mal cases and I've never heard of him working for a plaintiff. Also I didn't think the treating trauma surgeon would feel like testifying but I got a hold of him and he agreed to testify as well.
I've noticed a trend lately where defense experts will testify on causation issues for plaintiffs so that they can later claim they do like 30% plaintiff work.
In my 23 year old client’s deposition in a dram shop case, and we’re 30 minutes in and have only covered addresses and employment history. I’m quickly learning that most defense attorneys are way more annoying than I ever was.
She’s also saying “I’m marking [exhibit] as Defendant’s Exhibit [number]” without actually marking any of them with an exhibit sticker. I’m about to have an anxiety attack.
The learning curve is pretty funny. I'm still not far removed from defense work so I approach my work-up of med mal cases with the idea that I'm going to make my case airtight by making sure I have only the best experts, every angle covered, only take the real strong ones, etc. When I serve my notices of intent, I think to myself these are going to be pretty tough cases to defend and I'll likely get offered early mediations when they see how strong the case is and how good my experts are instead of using retreads. LOLOLOLOLOLOL....I've quickly learned why plaintiffs attorneys use those retreads so often. It doesn't fucking matter.
Bad rear-end crash case where my client suffered two fractured lumbar vertebrae. The case was referred to me like 5 months ago, and trial is set for December 12th. Tortfeasor has $100k in coverage, and my client has $500k in UIM above that. The judge ordered us to mediation so I emailed all counsel about possible dates. No one responded. Defense counsel has not taken my client's deposition, and the deadline for doing so is November 12th. I don't know if I'm missing something that prior counsel did or failed to do, or if this is just a case that completely fell through the defense lawyers' cracks, but it's weird.
One doctor that I'm deposing Friday. I filed the deposition notice two months ago without checking anyone else's availability because the doctor was so booked up, but never heard a word from anyone.
always fun when you have a defendant deposition and have video of the wreck and they just lie their asses off about how it happened. we have a video that i guess the defense thinks is good for them for some reason but it shows this lady pulling out from a home depot into oncoming traffic and my client hit her. she said she was at the stop sign for 2-3 minutes. we have a video of her just not stopping. these allstate lawyers are worthless
Client was involved in a 5 car pile up and I filed lawsuit. One of the people that weren't at fault has now filed a lawsuit and sued everyone involved including my client. My client doesn't have auto insurance. As a plaintiff lawyer would you just answer the complaint and defend them , answer discovery for them etc. Or would you tell them they need to get a lawyer. I know this lady doesn't have the money to hire a lawyer.
i probably would but i'm a bleeding heart pussy lib. i think everyone else will tell you to not do it.
or just call the other lawyer and tell them that there isn't any insurance and see if they'll nonsuit. it doesn't benefit them to have a blank for her on the jury charge if she doesn't have any money imo
I love when the claims handler for the defendant crawls up your ass begging for a pre-mediation demand, threatens to reschedule the mediation if they don’t receive the demand, then as soon as you send it to them promptly responds with, “OMG that’s a lot higher than I expected!”
great case comes in with solid damages and 100% liability on the tortfeasor.... no coverage. this job sucks sometimes.
Anyone ever had success litigating a slip and fall on the basis of asphalt paint/striping not being sealed correctly? I initially thought there was no liability (painted handicap spot icon) but apparently there are some people out there who have done it.
I've never done it but if you have an expert that will testify that the safety rules were violated ....