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Archive for July, 2012

If you are a personal injury client of ours or have been in the past, you have likely heard the term “subrogation”. You may have looked it up in the dictionary or on the internet but it seems as if the word doesn’t exist! Your attorney or one of their legal assistants may have attempted to explain it to you, but it was still baffling! After all, why after paying good money towards health insurance and/or PIP medical benefits, would you have to pay the insurance company back for medical expenses it paid to your medical providers? Isn’t that what you pay premiums for? The assistants here at TCLMDS are asked these questions quite frequently and in this article, we will try to answer those questions in simpler terms.

In your policy with your auto and health insurance companies it specifically references the “right to reimbursement” or “subrogation claim.”  Regardless of if it is your own auto insurance paying for the medical bills or your health insurer, if we are successful in settling your claim and that settlement compensates you fully or “makes you whole” for all of your damages caused by the injury event, your insurance company is entitled under your policy or contract with that insurer to be reimbursed up to the exact dollar amount it paid out for medical bills on your behalf.  The reason your insurer has a right to be reimbursed those benefits is that when you have been paid in full satisfaction of your personal injury claim by the person or entity responsible for your injuries or damages, part of your settlement proceeds are compensating you for your “special damages” which in part are your related medical bills.  If you did not pay back your insurer for the medical benefits they paid on your behalf, in essence it would be as if you were “double dipping” or getting paid twice for your medical expenses because you are recovering those medical expenses from your settlement that are to cover those medical benefits your insurance has paid.

On the other hand, if your settlement does not fully compensate you for the entire value of your claim (sometimes meaning in excess of the policy limits), your insurer does not have the right to be reimbursed for the benefits it paid out on your behalf until the time that you do recover fully from a monetary recovery, if ever.

Often at the time of your settlement, our firm is able to negotiate a reduction of the “subrogation” or reimbursement amount to one or all of your medical insurers.  The reason we are successful at reducing what you have to pay back to your auto insurance or health insurance company is that under Washington law an insurer must pay a proportionate share of attorney fees and costs since your attorney in essence recovered the medical expenses for the insurance company through a settlement of the claim.  Your insurance company did not have to extend any effort or resources to get reimbursed.  However, if you have an ERISA health insurance policy, under federal law, most likely you must pay the insurance company back its subrogated interest dollar for dollar.

Hopefully that gives you a clearer picture of what “subrogation” means.  If you need more clarification of what “subrogation” is, we are here to help!

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REASONABLE DOUBT IS ALIVE IN PIERCE COUNTY

Part of James F. Christnacht’s practice includes misdemeanor criminal defense and traffic matters.

This past month he represented a defendant in a contested DUI jury trial.  In a criminal matter the prosecution must prove their case beyond a reasonable doubt.

According to Washington law and the jury instruction, “A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence.  It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence.”

We should always keep in mind that a criminal charge is just an accusation.  The filing of a charge is not evidence that the charge is true, and it is up to the court or jury to decide if the prosecution has proven its case beyond a reasonable doubt.  The jury must fully, fairly, and carefully consider all evidence or lack of evidence in any and all cases which they must decide.

As for civil matters, the plaintiff must prove their case by a preponderance of the evidence.  Preponderance of the evidence means: more likely than not.  An example would be that they would need to prove their case by 51 %.

We are all familiar with the statement that a person is innocent until proven guilty.  A prosecuting attorney has the burden of proving each and every element of the crime or each crime beyond a reasonable doubt.  Of interest, the defendant does not have a burden of proving that a reasonable doubt exists.

In my case the members of the jury had reasonable doubt and could not come to the unanimous verdict necessary to convict my client.  They had four pages of questions which were unanswered.  They jury was polled and the result was that they could not reach a unanimous verdict of either not guilty or guilty.  As a direct result, the judge ordered that a mistrial had occurred in this case.  A small victory for the rights of the individual.

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Ladenburg McKasy Durkin, Inc. P.S.
6602 19th Street West, Tacoma, WA 98466
253-777-1900

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