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Even if you are injured due to the negligence of another (who rightfully should pay for your medical care), having health insurance makes it much easier to receive ongoing medical attention from any doctor you desire that accepts your health-insurance plan. However, the health insurance company (per their contract) will have a right of reimbursement from any recovery received from the negligent party in a personal-injury action. But, the health insurance company’s right to reimbursement is limited, per FL. Stat. §768.76, to the plaintiff’s recovery less the plaintiff’s pro rata share of costs and attorney’s fees incurred in its effort to make the recovery. In other words, the health-insurance company entitled to reimbursement must discount the amount owed by the same percentage of the recovery/judgment that went towards attorney’s costs and fees. There are all sorts of other tactics a good personal injury lawyer will use to negotiate down these health insurance bills. Among them, your Miami personal injury lawyer should argue the following, if possible:

  1. Unrelatedness – some medical bills paid for by the health insurance company may not be related to the injury (e.g. seeing a cardiologist for chest pains after an orthopedic injury may, arguably, not be not related).
  2. Some part of the recovery may not be for medical bills. There may be a significant lost-wage component and pain and suffering. A settlement agreement between the tortfeasor and the injured party can clear up how the tortfeasor intended to allocate the money.
  3. Comparative negligence or limited insurance policy. A settlement or verdict may not be wholly compensating a personal injury client for his or her injuries if a percentage of fault is assigned to the injured party and the verdict/settlement was reduced accordingly; or if the personal injury victim’s damages far exceed the insurance policy. In a settlement situation, these issues can also be made clear in a settlement agreement.

However, all this is made significantly more complicated if your health insurance policy is a self-funded ERISA plan.

ERISA refers to the Employee Retirement Income Security Act of 1974. ERISA does not apply to individual plans. But if you get health insurance through your job – unless your employer is a government organization or a religious institution –  chances are it falls under ERISA, a federal statute (which trumps state statutes).

The next step is
to look at the specific .
policy (in the section entitled: Summary Plan Description)
to determine if the plan is:

A. Fully Insured – where the employer purchased their insurance coverage; or

B. Self Funded – where the insurance plan is wholly funded by contributions between the employer and employee.

The personal injury lawyer can get a hint of the plan type by its title. Fully insured plans usually use a named insurance carrier (Blue Cross/Blue Shied, AETNA, United) along with its designation: HMO, PPO or POS. Self-funded plans will likely be named something along the lines of:  X Company Group Plan or X Company Administrative Service Organization. However, there is no substitute for reading the actual policy language to be sure.

If the plan is fully insured (i.e. a PPO or HMO), the federal law provides some technicalities that allow us personal-injury lawyers to incorporate and argue based on the favorable Florida Statute.

If the plan is a Self-Funded ERISA plan, the federal law will fully apply. Self-funded ERISA liens are a huge source of frustration for miami personal injury lawyers because Self-Funded ERISA plan administrators claim that they are entitled to 100% of their lien and may refuse to reduce their balance owed regardless of what else happens in the personal injury settlement or verdict. There is some federal case law that indicate that self-funded ERISA liens are subject to equitable principles regardless of policy language (Solutions v. Rose 683 F. 3d 1113 (2012); Cigna v. Amara 131 S. Ct. 1866 (2011); US Airways v. McCutchen, 663 F. 3d 671 (3rd Cir. 2011). Unfortunately, the case law in the 11th circuit and US Supreme Court falls mostly falls in line with the express language of the plan controls doctrine. It has been less clear when addressing the Common Fund Doctrine and whether equitable reductions ought to be made for an injured party’s legal fees and costs.

Your personal injury lawyer will have to read the health-insurance contract to determine whether the plan can seek reimbursement from third-party-liability policies or from ANY source of settlement funds (such as uninsured-motorists policies). ERISA dictates that policies must specifically identify sources of recovery (i.e. saying all sources will not work in their favor).Sereboff v. Mid Atlantic Medical, 547 US 356 (2006).

Again, in a self-funded ERISA situation a personal injury lawyer has to look at the language of the plan to see if it clearly addresses these issues. If not, they can be successfully argued.