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  • I was injured in a car accident, but the other driver was driving someone else's car?

    4/9/20128:10:06 AM Link 0 comments | Add comment

    Accident Injury, car, Insurance, insurance claim, Lawyer, Personal Injury, Personal Injury Attorney, truck

     

    Often times accidents occur where one of the drivers is driving a car owned by another person. This can be confusing.  Assuming the car was not stolen, the general rule regarding car insurance claims is that the liability insurance follows the vehicle.  In other words, your attorney will make your initial injury claim with the insurance carrier who is providing coverage for the car that was being driven in the accident, not the insurance carrier for the person driving the car. The person driving the car is still the negligent party.  If your injury lawyer files a lawsuit on your behalf it will be against the person who was negligent (i.e. the person driving the car).  Also, depending on your injuries and depending on the amount of insurance coverage available from the policy on the car involved in the accident, your lawyer may file additional insurance claims with the negligent person's own liability insurance carrier(s).  When you have been injured in a car or truck accident, one of the first things your attorney will do is gather any and all information regarding insurance coverage that may have been in place at the time of the accident.

     

  • Semi Truck Accidents in the U.S.

    12/9/20118:18:05 AM Link 0 comments | Add comment

    accident, Accident Injury, attorney, car accident, injury, injury claim, insurance, semi truck accident

     

    Millions of motor vehicle accidents occur every year in the United States.  The majority of those accidents do not involve commercial vehicles or semi trucks.  In fact, only roughly 500,000 accidents involve semi truck trailers.  The problem; however, is that when car accidents do involve a semi truck, or other large commercial vehicle, the accident is extremely more likely to result in serious injury and/or death to one or more of the people involved. 

     

    In information released by the U.S. Department of Transportation, one out of every eight car accident fatalities is the result of a serious trucking accident.  There are roughly 5,000 deaths caused by semi truck accidents every year in the United States.  Tractor trailers weigh in excess of 10,000 lbs resulting in most of the truck accident deaths being the individuals riding in the passenger vehicle. 

     

    We have all experienced driving down the interstate in adverse conditions when a semi truck comes barreling by 10 to 20 miles over the posted speed limit, kicking up snow or spraying water onto your windshield.  Be leery when driving close to a semi truck and do not hesitate to contact authorities if you see a truck clearly being driven in a reckless manner.  You never know who that truck may run into down the road.

     

    If you or a loved one is unfortunate enough to be the victim of a trucking accident, contact a truck accident injury attorney in your city sooner versus later to discuss your options.

     

    Truck Accident Injury Claim Information

     

    Commercial Vehicle Regulations from the DOT Website

     

     

  • Alternative Dispute Resolution and Mediation

    9/20/20119:21:12 PM Link 0 comments | Add comment

    accident, Accident Injury, alternative dispute resolution, arbitration, attorney, car accident, injury, injury claim, Insurance, mediation, Personal Injury, trial

     

    Most people have heard the term arbitration, but few people truly understand what alternative dispute resolution entails and what options are out there.  Arbitration is typically a word you hear mentioned in the news or you see when rapidly scrolling through a contract on itunes.   The truth is many civil cases, including car accident injury cases, are resolved through alternative dispute resolution. 

     

    The two most common types of alternative dispute resolution (ADR) are arbitration and mediation.  The main difference between the two is that arbitration is usually binding on the parties, whereas mediation is typically nonbinding and less formal.  Mediation can be a great tool for reaching settlement in inury cases where the parties have reached a stalemate.  During mediation a nonbiased person (mediator) serves as a go-between for the parties.  The mediator is usually trained in mediation practices and is often an attorney with experience in the area from which the dispute arises.

     

    Every mediation is different, and different mediators have different styles and different ways of doing things.  Many mediators use caucusing during their mediations.  Caucusing is where the parties to the mediation are separated and the mediator goes back and forth between the parties in an attempt to facilitate discussion and further negotiation.  The mediator will try to give an unbiased opinion as to how he or she views the case, and will carry information back and forth between the parties.  

     

    Mediation is a great tool for resolving legal disputes without trial  Having a knowledgeable unbiased party available to facilitate discussion and provide insight, combined with having both parties together at the same time to discuss settlement often times yields better results than the more adversarial trial process.  Furthermore, one of the best things about mediation is that it is nonbinding, and if either party is dissatisfied they can walk away at any time.

     

     

     

  • Car Accident Injury Top 5 Questions & Answers

    8/14/20112:09:09 PM Link 0 comments | Add comment

    accident, Accident Injury, Auto, car accident, injury, injury claim, insurance, insurance claim, Personal Injury, Personal Injury Lawyer

     

    1) Q - What should I do if I am injured in a car accident?

         A - Go to a doctor.  If you sustained serious injuries in an accident, the first thing you need to do is get checked out by a licensed physician to make sure you are okay.

     

     

    2) Q - Who will pay for my doctors' bills?

         A - Insurance.  The whole answer is significantly more complicated; however, insurance will pay for your bills if it exists.  If you have health insurance, submit your bills to your health insurance carrier as you typically would after going to the doctor any other time in your life.  You should also check to see if there is any medical payment coverage available through your own auto insurance carrier.  Often times, persons injured in car accidents are reluctant to give out their health insurance information because they think the at-fault party should be responsible for their bills.  They are correct that the at-fault party is financially responsible; however, you do not want to miss out on contractual reductions in your medical bills or have your medical bills end up in collections while you are waiting to settle your claim or go to trial.  Your health insurance carrier can always place a lien in your injury case file for any bills they pay out on your behalf for treatment of injuries sustained in the accident.

     

     

    3) Q - Should I open a claim with my own auto insurance company even if the accident was not my fault?

         A - Yes.  First, most car insurance contracts require you to notify your company after you have been involved in a car accident.  Second, you may have coverage with your own insurance company that you can use to help pay medical bills or receive additional money for pain and suffering should the person that caused your accident not have insurance or be underinsured.

     

     

    4) Q - I was injured while driving my friend's car.  Which insurance company should I notify?

          A - When in doubt, ALL of them.  The person's insurance who caused the accident is the "at-fault" carrier and will be responsible for compensating you for medical bills, lost wages, pain & suffering, inconvenience, etc.  Your friend's car insurance coverage follow's the car and will provide insurance coverage if the at-fault party is uninsured or underinsured and may also provide medical payment coverage.  Your own car insurance will provide potential uninsured or underinsured coverage, as well as medical payment coverage if you have contracted for it.

     

     

    5) Q - Should I hire an attorney to represent me in my accident injury claim?

         A - Maybe.  Whether you need legal representation for your injury claim depends highly on the circumstances surrounding your accident and the nature of your injury.  If you suffered very minor injuries, and you are positive that you have fully recovered, then hiring an injury lawyer may be unnecessary.  However, if you sustained serious injuries in your accident and/or liability or causation is at issue, you will definitely want to retain counsel to represent you in your injury claim.  Regardless, most injury lawyers offer a free consultation, so it is always a good idea to speak with an injury attorney in your city before settling your claim with the insurance company.

     

     

     

  • Medical Records and Medical Release Forms

    8/1/20119:24:00 PM Link 0 comments | Add comment

    accident, Accident Injury, attorney, Auto, bills, car accident, injury claim, insurance, medical information, Personal Injury Lawyer, records

     

    We have discussed medical release forms before, but this is a topic that comes up over and over again when discussing accident injury cases.  Because of current privacy laws protecting personal medical information, medical record release forms must be signed before a treatment provider will release records and/or billing statements to an insurance company or law office. 

     

    Often times, the other driver's insurance company will send you medical release forms immediately following your accident.  You are NOT required to sign these forms just because the insurance company asks you to.  Many insurance medical record release forms are unrestricted and give the company access to pretty much any and all of your medical information, whether it relates to your car accident or not.  If you are injured in a accident, speak to an injury lawyer before blindly signing any forms requested by any insurance companies.

     

    Now sometimes you are placing an injury claim with your own auto insurance carrier.  In this situation, you ARE required to provided medical release forms.  The reason for the difference is because of the direct contractual relationship that exists with your own auto insurance company. 

     

     

  • I Received a DUI. How Will My Insurance Rates be Affected?

    7/26/201110:31:49 PM Link 0 comments | Add comment

    attorney, Criminal Defense Lawyer, DMV, Driving Under the Influence, DUI, insurance

     

    The short answer is your rates will go up.  When your insurance rates go up depends on when the insurance company finds out that you were arrested for Driving Under the Influence.  Most insurance companies run checks every so often, but even without the insurance company running a check on your driving record, they will often find out because you will be forced to tell them.  In Nebraska, once your license is revoked by the Court for a DUI conviction, you are required to obtain SR-22 insurance before you are eligible for reinstatement.  SR-22 insurance is actually not insurance, but rather a filing whereby your auto insurance carrier supplies the state with proof that you have insurance on your vehicle.  Following your DUI license revocation in Nebraska, you will typically be required to carry SR-22 insurance for three years following your license revocation.  If you have any questions about license revocations and SR-22 requirements ask your lawyer or contact the Department of Motor Vehicles.

  • Sprains, Strains and Automobiles – A story of car accidents, soft tissue injuries & insurance claims

    5/2/20119:24:31 PM Link 0 comments | Add comment

    attorney, back strain, car accident, injury, injury claim, insurance, neck strain, soft tissue

     

    Many times when someone is injured in a car accident they are diagnosed with having a “soft tissue injury”.  A soft tissue injury is an injury involving muscles, ligaments or tendons.  Sprains and strains typically fall into the soft tissue category.  Whiplash, probably the most common injury suffered from a car accident, is a soft tissue injury. 

     

    One of the biggest problems with soft tissue injuries is they tend to get lumped together as all being the same, when in fact there are many different kinds and degrees.  The reason that strains and sprains typically all get judged the same is because they are difficult to objectively evaluate.  Take a broken leg for example.  When someone breaks their leg, it is usually pretty clear that a bone within the leg is broken.  We know this because we can see the broken bone on an x-ray, and in extreme cases we can see the bone without an x-ray.  On the other hand, a soft tissue injury such as a neck strain presents more of a problem because you cannot see a neck strain on an x-ray or MRI. 

     

    Because of this, auto insurance companies often times do not take soft tissue injuries such as neck strains and back sprains seriously.  This attitude can be extremely frustrating, especially if you happen to be one of the people plagued with lower back pain that was caused in a car accident and still bothers you after years of physical therapy, spinal injections and massage therapy.  Physical therapy and chiropractic treatment are probably the most common treatments for soft tissue injuries; however, depending on the nature and location of your injury, there may be other options available.  Other types of treatment often seen in patients dealing with more serious soft tissue neck or back injuries are pain injections and/or radiofrequency treatments.

     

    If you have been injured in a car accident, there is a good chance you are suffering from some type of soft tissue injury.  If so, be ready for a battle with the insurance company handling your claim.

     

     

  • What Money is Available after a Car Accident? Three Types of Insurance Coverage that are Commonly Overlooked.

    4/12/20118:59:09 PM Link 0 comments | Add comment

    car accident, insurance, Medical Payment Coverage, personal injury, Underinsured Motorist, Uninsured Motorist

     

    Most people know they are entitled to payment for damages from the person who caused the car accident.  If that person has proper insurance coverage, then payment will typically be made by their insurance company, assuming the accident is clearly their fault and there is no disagreement on damages (there is almost always disagreement on damages).

     

    On the other hand, most people are not aware there are other insurance policies that often times will provide coverage (money) for damages suffered from a car accident.  Three policies that are commonly overlooked are:

     

    1) Medical Payment Coverage or “Medpay”— medpay coverage is not required by law; however many people pay for it as part of their premium and do not realize it.  Medpay coverage is money that is available through your own auto insurance carrier for payment of medical bills if you are injured in an accident.  This is money YOUR insurance company will pay toward medical bills.  It depends on the situation; however often times this money must be paid back out of any settlement you reach with the individual who caused the accident.

     

    2) Uninsured Motorist Coverage—uninsured motorist coverage is money that is available to you by your own insurance company if you are injured in an auto accident by a person without insurance.  In Nebraska, the minimum amount of uninsured motorist coverage someone will have is $25,000.00.  Again, this means if you suffer injury from a car accident, and the person who caused the accident is uninsured, you will have at least $25,000.00 in coverage available to you from YOUR insurance company.

     

    3) Underinsured Motorist Coverage—underinsured motorist coverage is similar to uninsured motorist coverage, but as the name implies, underinsured motorist coverage applies when you are injured by a person who does have car insurance; however, that person’s insurance is not enough to compensate you fully for your injuries.  In example, if you are severely injured by an individual who only has $25,000.00 in liability insurance coverage, once you have been offered all $25,000.00, you can then seek additional compensation from YOUR own insurance company.  Same as uninsured motorist coverage, if you have auto insurance, you will have at least $25,000.00 in underinsured motorist coverage available to you.

     

    The above is a brief description of potential auto insurance coverage that may be available to you if you are injured in a car accident.  In practice these issues can be much more complicated.  Be careful when handling an injury claim, and if you have been seriously injured in a car accident, it is always best to at least speak with an accident injury lawyer before making any decisions regarding settlement. 

     

     

  • Lawsuit Loans in Nebraska

    2/17/20119:17:08 PM Link 0 comments | Add comment

    Accident Injury, claim, insurance, Lawsuit loan, lawyer, personal injury

     

    Loans with as much as 100% in interest rates made to individuals in dire circumstances with no other options for money. This might sound like the beginning of a white collar crime story; maybe an excerpt from a Michael Milken or Bernie Madoff memoir, but it’s not. This is a true story about real loans allowed in places such as Nebraska where injured plaintiffs are often taken advantage of by investors looking to capitalize on another person’s personal injury claim. Injury settlements can take years, injury lawsuits take even longer. Often times when a person is significantly injured, such as in a severe car crash, they may end up with thousands of dollars in medical bills and weeks, if not months, off from work. For many this can result in huge financial problems and extreme desperation. With bar regulations forbidding injury attorneys from loaning clients money and nowhere else to turn, clients turn to the one place they have access to money to keep their heat on, buy groceries and fill their car with gas. They turn to lawsuit lending companies. These companies are a necessary evil to help provide cash flow for persons injured in car accidents, motorcycle accident or any other type of personal injury accident. The problem is the industry is loosely, if at all, regulated; and many injured victims end up owing their entire injury settlement to the lawsuit lending company. Long story short, do not borrow form a lawsuit finance company unless you have absolutely no other option. Here is a good article from the New York Times that discusses lawsuit loans in more detail: “Lawsuit Loans Add New Risk for the Injured”

     

     

     

  • One More Thing NOT to Do After Being Injured in a Car Accident

    2/3/20118:51:18 PM Link 0 comments | Add comment

    claim, Facebook, insurance, lawyer, personal injury

     

     

    Be careful on Facebook; you may not always be amongst "friends"  

     

    For most, it is no surprise that insurance companies are using Facebook and other social network sites to keep tabs on claimants; however, many would be surprised at the lengths the insurance companies will go in using content found on the Web to deny claims. Here is a recent story out of Canada where a woman was denied disability benefits solely because of pictures that were uploaded to her social network. The moral of the story; be extra careful about what content you place on Facebook and other social network sites, regardless of your privacy settings; and do NOT place photos of yourself doing the limbo at your local bar's beach bash while you have a pending insurance claim for an injury to your lower back.

     

     http://www.latimes.com/business/la-fi-facebook-evidence-20110125,0,4304729.story

     

     

     

  • Medical Payment Coverage (Medpay) What is it? How is it used?

    9/26/20109:28:53 AM Link 0 comments | Add comment

    attorney, car accident, injury, insurance, lawyer, medpay

     

    Okay, you have been injured in a car accident. You have many questions such as – How does the insurance work?   Do I need to file a claim with my own insurance company? Who will pay for my medical bills? Will my health insurance pay for my injuries from the car accident? Do I need an injury lawyer? How much does an injury attorney cost? And the list goes on.
    Well, I am not going to answer every question you have with this blog post; however we will discuss payment of medical bills using medpay. If you are injured in a car accident in Omaha, Nebraska, you will be negotiating a lump sum settlement with the insurance company representing the driver who caused the car accident. In most circumstances, this means your car accident injury lawyer will be negotiating one settlement that will include money for medical bills, pain & suffering, lost wages, inconvenience, etc. If you and your car accident attorney are unable to reach an agreement with the at-fault person’s insurance company, the next step will be to file a lawsuit. 
    Now, you should not attempt to negotiate your insurance settlement until your injuries have healed completely, or you have reached your maximum medical improvement (MMI). Often times it takes months, or even years, before a person injured in a car accident is released from care by their treating physicians. In the meantime, the bills keep coming. One way an injured person can pay for their medical bills is by using medical payment coverage or “medpay”. Not everyone has medpay. Medpay is additional coverage that you can contract for when purchasing car insurance. Usually, if you carry higher than the minimum liability coverage and/or collision coverage for your vehicle, some amount of medpay will be included within your insurance policy. If you are injured in a car accident, you can use your medpay money to help pay for medical bills whether the car accident was your fault or not; however, if the accident was someone else’s fault, the medpay insurance provider may be entitled to subrogation (reimbursement from settlement) of amounts paid.
    Medpay can be paid directly to a treatment provider (i.e. doctor, physical therapist, chiropractor, etc.), or the injured person can submit receipts for their own reimbursement. Just because you have medical payment coverage does not mean you should not give treatment providers your health insurance information. First of all, medical payment coverage is capped at whatever amount you contracted for. Typically, a medpay policy will provide somewhere between $1,000.00 to $10,000.00 in coverage; however, many policies have no medical payment coverage at all and some have as much as $50,000.00. Again, it depends on what you purchase from your auto insurance company. Second, if possible, your attorney will attempt to have all medical bills first go through your health insurance before taking advantage of any medical payment coverage with an auto carrier.  The reason for wanting bills to first go through health insurance is that health insurance companies have contracted for reduced rates with almost all healthcare treatment providers. For example, if you have a doctor’s bill that is $1,000.00, your health insurance company will likely pay somewhere between $600.00 and $800.00, instead of the full $1,000.00 charged by the doctor’s office. This means at the end of your case if you have to pay an insurance company back (subrogate) with proceeds received from your injury settlement; you will only have to pay back $660 or $800, instead of $1,000.00. 
    Long story short, make sure to find out whether you have medical payment coverage as part of your current car insurance policy and, if so, how much coverage you have. Medical payment coverage is a great thing to include in your policy when purchasing automobile insurance coverage; and, in the event of a car accident, medpay can help pay for bills not covered by your health insurance, such as reimbursement of deductibles and co-pays. With that said, this post is a brief overview of medical payment coverage. If you have recently been injured in an accident, you should contact an injury attorney immediately to discuss your situation.

     

  • CAR ACCIDENT PERSONAL INJURY TIMELINE

    2/20/201010:04:13 PM Link 0 comments | Add comment

    Accident Injury, Auto, Insurance, Lawyer, Personal Injury, Personal Injury Attorney

    1. Injured in Car Accident

    Begin Medical Treatment

     

    2. Opening of personal injury claims

    Typically, the first procedural thing that will take place after you have been injured in a car accident, is that the attorney or law firm representing you will open claims with the various insurance companies that may provide coverage. This will include the liability carrier (the insurance company for the person/company who is at fault for the car accident); and often times your own insurance company (if applicable--medical pay coverage, uninsured/underinsured motorist coverage, etc.).

     

    3. Medical Treatment

    Get better. The next, and most important, part of the personal injury claim/case process is your health. You need to do the best you can to get better. If you have a permanent impairment or disability, you need to do the best you can to get to your maximum medical improvement. Your attorney cannot proceed with your personal injury claim until you have been released from medical care.

     

    4. Gathering of Information

    Once you have recovered as much as is possible from the injury you received in the car accident, it is time to begin gathering any and all documents relating to your personal injury claim. The relevant documents your lawyer will be gathering for your claim are: medical records, medical bills, photographs, lost wage verification documents, etc.

     

    5. Sending the Demand Package

    Unfortunately, when you have been injured in a car accident, or any other personal injury accident, the only real compensation available is money. Once you have been released from care by your medical treatment providers, and your attorney has gathered all related documentation of your injuries, you will send a demand to the at fault party requesting compensation for all of the damages you sustained.

     

    6. Waiting for a Response

    Once demand has been made on the other side, there will usually be a waiting time of about three or four weeks before you receive a response or counter offer to your initial request. This waiting time can be longer or shorter depending on the complexity of your case, and what injuries you received in the accident. Be patient.

     

    7. Negotiation with Insurance Carrier

    Your attorney has sent everything to the opposing party’s insurance company, and the insurance company has responded to the demand package. Assuming your claim was not denied, it is now time to continue the negotiation process. Your attorney will go back and forth with the representative for the other side, however whether a settlement is reached is largely dependant on you. Your attorney’s job is to inform you of all the facts and circumstances. A good lawyer will guide you in the right direction and give you the information and tools necessary for you to make an informed decision; however, you are the one who must ultimately make the determination of whether or not to accept a settlement offer.

     

    8. Personal Injury Settlement or Filing of Lawsuit

    You have been negotiating the settlement of your claim. Hopefully, at this point you will be able to reach a settlement that all parties can live with. If you cannot, the next step is usually the filing of a lawsuit. There are other possibilities such as mediation and arbitration, but in most cases mediation does not take place until after litigation has begun.

     

    9. Litigation

    You were not able to reach a settlement, you have spoken to your attorney and your attorney has filed a personal injury lawsuit on your behalf. You are now in litigation. Litigation can take anywhere from six or seven months to six or seven years. In Omaha, Nebraska, the typical car accident personal injury lawsuit will take somewhere between one to two years.

  • Car Accident Injury Cases and Other Types of Personal Injury Claims

    1/10/201010:15:44 PM Link 1 comment | Add comment

    Accident Injury, Auto, Insurance, Personal Injury, Personal Injury Attorney, Personal Injury Lawyer

    Many questions arise after being injured in a car accident or any other type of personal injury accident, such as: do I need a personal injury lawyer, why do I need an attorney/lawyer, which personal injury attorney should I hire, who is going to cover my medical bills, will my health insurance cover bills for injuries caused as a result of my car accident, how long does the personal injury process take, what is the benefit of having an attorney to help me with my personal injury claim, and the list goes on and on. Throughout my next few blog posts, I will attempt to answer many of the most frequently asked questions that arise after being injured in an accident. I will discuss the benefits of having a lawyer to help you through the process. I will look at the personal injury claim process as a whole, discussing: how long the process can take, litigation versus other forms of dispute resolution, and valuation of claims.

  • Hot Coffee Controversy

    11/7/20099:35:34 PM Link 0 comments | Add comment

    Accident Injury, Blog, damage caps, Insurance, Lawyer, Personal Injury, Personal Injury Attorney, tort reform

    The new documentary movie, Hot Coffee-"Is justice being served?", seeks to dispel the myth surrounding the famous McDonald's coffee burn case.  In Hot Coffee, producer, Carly Hugo and director, Susan Saladoff, have created a film that focuses on educating the audience about litigation and the United States civil justice system.  More often it is large corporations and insurance companies who are responsible for educating (or misinforming) socienty and influencing public opinion.  In Hot Coffee, Susan Saladoff, Carly Hugo and everyone else involved in the creation of this film seek to better inform the audience of the propaganda that goes on within the American civil justice system by using one of the most well-known American civl lawsuits, the McDonald's coffee case, as an example.  The movie will focus on the specific facts of the McDonald's coffee burn case to illustrate how insurance compaies and large corporation skew the facts in their favor to forward their political agendas with items such as tort reform.  I have not yet seen the movie, but I plan to as soon as screenings begin again in 2010.

  • Personal Injury Lawyers/Accident Injury Attorneys--Medicare Reporting Requirements

    10/28/20093:40:42 PM Link 0 comments | Add comment

    Accident Injury, Insurance, Medicare, Personal Injury, subrogation

    The following was recently issued by the AAJ regarding new Medicare reporting requirements and "Set-Asides" on auto liability cases. Long story short--reporting requirements to stay the same for Plaintiff's lawyers in auto accidents.

    EMERGENCY MEDICARE SET ASIDE INFORMATION

    Dear Colleague:

    In cases involving Medicare beneficiaries, attorneys for both the plaintiff and defendant are required to report certain information to the Centers for Medicare and Medicaid Services (CMS). In addition, any case settlement or judgment must reimburse Medicare where the Trust Fund has made conditional payments for medical costs. Under the Medicare Secondary Payer Act, attorneys have been settling cases involving liability claims without completing a Medicare Set Aside (MSAs) to account for future medical costs. However, attorneys representing claimants in workers' compensation cases have been preparing MSAs on a case-by-case basis.

    It has come to our attention that some defense firms and insurance providers are now claiming that CMS requires MSAs in liability cases pursuant to Section 111 reporting requirements included in the Medicare, Medicaid & SCHIP Act of 2007 (MMSEA), Public Law No. 110-173. This is false. Section 111 contains reporting requirements for responsible reporting entities(1) (RREs) only. Section 111 does not impact or change the requirements for plaintiffs' attorneys.

    Moreover, statements from CMS, and other federal entities, make clear that the agency does not require set-asides for liability claims. Since the MMSEA's passage, CMS has held several Town Hall teleconferences to discuss the Section 111 requirements. During the March 24, 2009 call, Barbara Wright, CMS' Acting Director of the Division of Medicare Debt Management, made several statements reiterating that Section 111 has no impact on liability MSAs.(2) For example:

    * In response to a question as to whether liability set-asides will be required under Section 111, she said "the point is the set-aside process is totally separate from the Section 111 reporting process. As we've said in more than one call we don't anticipate changing our routine recovery process." (Transcript, pg. 24)

    * When explaining that worker's compensation agreements use a formal review process which makes set-asides recommended, she said that was in contrast to liability agreements. Liability "does not have the same formal review process although our regional offices will consider review of proposed liability set-aside amounts depending on their particular work load and whether or not they believe significant dollars are at issue."
    (Transcript, pg. 24).

    In addition, CMS also has released several Alerts explaining Section 111, which do not indicate any intent to require MSAs for liability claims. For example:

    * "Unless you are a business entity which qualifies as [a required reporting entity (RRE)] for purposes of Section 111, you do not need to initiate any specific actions in connection with Section 111." (CMS Alert, 2/23/09).(3)

    * "The new Section 111 requirements do not change or eliminate any existing obligations under the MSP statutory provisions or regulations." (CMS Alert, 2/23/09).

    Moreover, the Congressional Research Service (CRS) provided Congress with an "objective and non-partisan analysis" analysis20of the MMSEA. As there was no legislative history regarding the bill, the CRS research report is the most reliable analysis of the MMSEA, including the Section 111 reporting requirements.

    CRS' analysis of the Section 111 reiterates that it is a reporting requirement, and makes no mention of the need for set-asides in liability cases. The Section 111 analysis states, in part:

    This provision requires an insurer or third-party administrator for a group health plan (and in the case of a group health plan that is self-insured and self-administered, a plan administrator or fiduciary) to (1) secure from the plan sponsor and participants information required by the Secretary for the purpose of identifying situations where the group health plan is or has been a primary plan to Medicare, and (2) submit information specified by the Secretary. If an insurer or third-party administrator for a group health plan fails to comply, then a $1,000 per day civil monetary penalty will be imposed for each individual for which information should have been submitted.(4)

    If CRS believed that the legislative language implies any Congressional endorsement of liability set-asides, it would have been included in this analysis.

    We hope this information will be useful in your settlement negotiations. We will keep you apprised of any changes regarding this issue. In the meantime, if you have additional questions, please contact Linda Lipsen, Senior Vice President for Public Affairs at 202-965-3500, ext. 305.

    Sincerely,

    Anthony Tarricone
    President

  • Auto Personal Injury: UIM 'Not owned, but insured' provision determined to be against public policy

    10/28/20093:37:08 PM Link 0 comments | Add comment

    Accident Injury, Auto, Insurance, Lawyer, Personal Injury, Underinsured, Uninsured

    Recently, the Nebraska Supreme Court found a provision commonly included by insurance carriers in policies providing underinsured motorist coverage to be void as against public policy.  The Court decided in Kline v. Farmers Ins. Exch., 277 Neb. 874 (2009) that insurance policy provisions denying coverage where a person is injured in a vehicle not owned by that person but still covered by an underinsured motorist policy to be void as against public policy.  The Court made multiple references to the Nebraska Uninsured and Underinsured Motorist Insurance Coverage Act (UUMICA), repeatedly pointing out the Legislature's intent to protect injured persons form uninsured and underinsured drivers.


    This is a good victory for anyone who has been injured in an auto accident in Nebraska by an underinsured or uninsured driver and is dealing with a personal injury claim.

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