The US Supreme Court decided US Airways v. McCutchen today, allowing insurance companies to write their way around the common fund doctrine and similar law, and taking money away from injured people.
Make no mistake – this is a big deal.
See, the world used to work like this:
- Step 1: Person gets injured.
- Step 2: Health insurance company pays medical bills.
- Step 3: Injured person hires attorney, spends time, money and effort to settle case with tortfeasor.
- Step 4: Injured person pays insurance company back, but keeps a fair percentage (typically 1/3 of the lien) for the time, money effort and attorneys fees spent in obtaining the settlement to pay the insurance company back. Without that effort, the insurance company would have gotten nothing.
Now things are different.
Step 4 now reads “Injured person pays insurance company back the full amount, so long as the insurance company requires them to do so.”
In some cases this won’t be a big deal. For many, many cases, liens and attorneys fees will eat up much or all of a potential settlement – especially in tougher cases, smaller cases, or cases with inadequate insurance. This is a lot of cases.
(Howard Zimmerle is a personal injury attorney in the Quad Cities of Iowa and Illinois. He has offices in Davenport and Rock Island. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).
One of the great tools in a plaintiff lawyer’s arsenal in Illinois is the Health Care Services Lien Act, which reduces the amount of certain medical liens in some cases. It can really help increase the total amount your client ends up with in a settlement.
A new case from the 5th District, Stanton v. Rea, notes that the 40% of the settlement that goes to the medical lienholders should not be calculated until after costs have been subtracted from the settlement. In other words, the Act doesn’t mean 40% of the pie, it means 40% of the pie after costs. In some cases, that can make a big difference.
My partner, Mike Warner, just spoke on some new aspects of the Lien Act at the recent Rock Island County Bar Association Seminar. I think a thorough “how to” post is forthcoming.
(Howard Zimmerle is a personal injury lawyer in the Quad Cities of Iowa and Illinois, helping people who have been injured due to someone else’s fault. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).
The Internal Revenue Service has shed some light on the taxability of tort damages. Attorneys typically have the kneejerk response that personal injury damages are not taxable. That is only true to a point.
The new regulation clarifies a few things, namely:
- Damages for personal injury or sickness are not taxable
- Damages for “emotional distress” are taxable unless they are attributable to a physical injury or sickness
- Punitive damages are taxable
The emotional distress language is important for people who handle employment law cases, false arrest, or other torts where emotional distress is recoverable but don’t typically involve physical injury or sickness.
(Howard Zimmerle is a trial lawyer from Illinois. He practices throughout western Illinois and Eastern Iowa. He can be reached at 309-794-1660 or at hzimmerle [at] mjwlaw.com.)
About a year ago I blogged about a 5th District case that would allow lawyers to reduce the amount of medical provider liens pursuant to the Illinois common fund doctrine.
Never mind, because the Illinois Supreme Court reversed it.
It was a nice tool while it lasted.
(Howard Zimmerle is a personal injury lawyer in the Quad City area. You can reach him at 309-794-1660 or hzimmerle [at] mjwlaw.com)
It happens every few months. A client needs money, and has a case with me. They contact some company (typically Oasis Legal Finance) who promises to loan them money until they settle their PI or workers comp case. If they settle soon, they won’t owe much interest, they’re told. If they don’t win, they don’t owe anything, they’re told.
But I won’t let them take the loan. I have to sign off on it, and I won’t do it. Why not?
Simply put, the interest rates are ridiculous. Not 25% credit card ridiculous…. much, much worse.
Yesterday’s New York Times had an article about it with some examples. Anyone read that and still want one of these predatory loans?
(Howard Zimmerle practices personal injury, medical malpractice, nursing home malpractice and workers compensation law in the Iowa and Illinois Quad Cities. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).
What’s my case worth?
Any good lawyer knows that the answer to that question requires a lot of knowledge – knowledge not just about the facts of the case at hand but about which facts may drive the value of the case and why.
One valuable piece of the puzzle is to see what juries have done in the past with similar cases. Even that has its limitations. Obviously not all juries are the same. Different states, different counties, different judges, attorneys, juries, etc would lead to different results in most cases. The key when looking at jury verdicts is to look at trends and patterns.
The Iowa Bar Association now has a free searchable database of Iowa jury verdicts. It’s incomplete (missing some cases), and it doesn’t give you much information about the facts of most cases, but it’s something. Any weapons in your arsenal that can help you value cases (and convince insurance adjusters, attorneys or even your own clients) that the value you put in your demand is correct sure can’t hurt.
(Howard Zimmerle is a plaintiff’s trial lawyer practicing in Iowa and Illinois. You can reach him at (309) 794-1660 or hzimmerle [at] mjwlaw.com).
It’s crazy. Two posts in a row talking about new 2012 requirements that scare the heck out of attorneys. (See the last one here).
This time it’s the big, scary, “new Medicare reporting requirements” that have defense lawyers in a tizzy. As you may recall, as of 2011, liability insurers were supposed to start reporting certain settlements to Medicare – known as TPOC (total payment obligation to claimant) settlements. These reporting requirements have been postponed until 2012. Good!
(Howard Zimmerle is a personal injury, medical malpractice and workers compensation lawyer with offices in Rock Island, Illinois and Davenport, Iowa. You can reach him at 309-794-1660 or hzimmerle [at] mjwlaw.com)