Does your health insurance get paid back from your car accident money?

What are collateral source payments and what you, as the injured, should know about collateral source payments?

Florida is a state that has modified the collateral source rule under common law and if you have been in a car accident, you should seek a knowledgeable West Palm Beach or Palm Beach County accident attorney for representation. Collateral sources are payments received by the plaintiff in a personal injury case for compensation or benefits from a party not involved with the case to compensate for the damages the plaintiff suffered in the accident. Basically, F.S. 768.76 (1) states that the court must “reduce the amount of such awards by the total of all amounts which have been paid… or which are otherwise available to the claimant, from all collateral sources (i.e., payments made by social security, public programs, health and auto insurance, PIP, disability insurance, or similar benefits, excluding workers’ compensation, Medicare, or Medicaid payments) in a judgment. It is very important that you retain a West Palm Beach accident attorney that knows how to handle your case because usually the better course is to have the jury consider the evidence and include these elements in the verdict, then let the court determine the post verdict reduction. The most important decision you can make is to retain a knowledgeable Palm Beach County accident attorney who will file a motion in limine to prevent your collateral source information from going to the jury in cases with an economic damages claim. Otherwise, you may be denied a fair trial if the full amount of the your special damages is not presented to the jury, or if the defense is allowed to introduce evidence of collateral source payments. See Goodman v. Roma Construction Co., 537 So.2d 597 (Fla. 3d DCA 1989). However, when PIP benefits have been paid or are payable, the evidence supporting setoff for these benefits must be presented during the trial and the setoff must be calculated by the finder of fact, unless the parties stipulate to having the court determine the setoff post trial. Caruso v. Baumle, 800 So2d 540 (Fla. 2004). See Fla. Std. Jury Instr. (Civ.) 6.13n.2 regarding the current collateral source rule. You can see why it is so important to have legal representation that has trial experience handling a Palm Beach County accident. In any case that involves payments by a collateral source with a right of subrogation (fancy legal word referring to an insurance company seeking reimbursement from the person or entity legally responsible for an accident after the insurer has paid out money on behalf of its insured.), the attorney must notify the provider by certified or registered mail of the client’s intent to claim damages from a tortfeasor. F.S. 768.76(6). Generally, F.S. 768.76 does not apply to subrogation or reimbursement issues involving collateral source provided by or through an employer. Also, if a settlement of the collateral source payor’s subrogation or reimbursement rights is reached before trial, the attorney should argue that the defendant is not entitled to benefit from the settlement. See Bruner v. Caterpillar, Inc., 627 So.2d 46 (Fla. 1st DCA 1993) (waiver of workers’ compensation insurer’s subrogation rights does not entitle tortfeasor to set off). Your Palm Beach County accident attorney should consider having the insurance carrier added as a defendant under F.S. 627.4136(4), at the time judgment is entered or when a settlement is reached, if there is any concern over the ability to collect the judgment or the solvency of the carrier.

768.76 Collateral sources of indemnity.--

(1) In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists. Such reduction shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of the claimant's immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.

(2) For purposes of this section:

(a) "Collateral sources" means any payments made to the claimant, or made on the claimant's behalf, by or pursuant to:

1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.

2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others.

3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.

4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

(b) Notwithstanding any other provision of this section, benefits received under Medicare, or any other federal program providing for a Federal Government lien on or right of reimbursement from the plaintiff's recovery, the Workers' Compensation Law, the Medicaid program of Title XIX of the Social Security Act or from any medical services program administered by the Department of Health shall not be considered a collateral source.

(3) In the event that the fees for legal services provided to the claimant are based on a percentage of the amount of money awarded to the claimant, such percentage shall be based on the net amount of the award as reduced by the amounts of collateral sources and as increased by insurance premiums paid.

(4) A provider of collateral sources that has a right of subrogation or reimbursement that has complied with this section shall have a right of reimbursement from a claimant to whom it has provided collateral sources if such claimant has recovered all or part of such collateral sources from a tortfeasor. Such provider's right of reimbursement shall be limited to the actual amount of collateral sources recovered by the claimant from a tortfeasor, minus its pro rata share of costs and attorney's fees incurred by the claimant in recovering such collateral sources from the tortfeasor. In determining the provider's pro rata share of those costs and attorney's fees, the provider shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement which is for costs and attorney's fees.

(5) Any disputes between the claimant and the provider as to the actual amount of collateral sources recovered by the claimant from a tortfeasor shall be subject to determination by a court of competent jurisdiction. In determining the actual amount of collateral sources recovered, the court shall give consideration to any offset in the amount of settlement or judgment for any comparative negligence of the claimant, limitations in the amount of liability insurance coverage available to the tortfeasor, or any other mitigating factors which the court deems equitable and appropriate under the circumstances.

(6) A claimant shall send the provider of any collateral sources, by certified or registered mail, notification of claimant's intent to claim damages from the tortfeasor. If the claimant has filed suit against the tortfeasor at the time such notice is sent, a copy of the complaint against the tortfeasor should be sent along with such notice. Such notice must include a statement that the provider of collateral sources will waive any right to subrogation or reimbursement unless it provides the claimant or claimant's attorney a statement asserting payment of benefits and right of subrogation or reimbursement within 30 days following receipt of the claimant's notification to the collateral sources provider.

(7) Within 30 days after receipt of the claimant's notification of intent to claim damages from the tortfeasor, the provider of collateral sources must provide the claimant or claimant's attorney a statement asserting its payment of collateral sources benefits and right of subrogation or reimbursement. Failure of the provider of collateral sources to provide such statement to the claimant or claimant's attorney within the 30-day period shall result in waiver of any claim to subrogation or reimbursement by the provider with respect to any such collateral sources. No right of subrogation or reimbursement shall exist for a provider of collateral sources that has waived its right of subrogation or reimbursement pursuant to this subsection.

(8) Reimbursement of a collateral sources provider pursuant to this section shall satisfy such collateral sources provider's right of subrogation or reimbursement. The provider shall have no right of subrogation or reimbursement for collateral sources payments made after the date of waiver, settlement, or judgment.

(9) A collateral source provider claiming a right of subrogation or reimbursement under this section shall cooperate with the claimant by producing such information as is reasonably necessary for the claimant to prove the nature and extent of the value of the collateral sources provided. The failure of the collateral source provider to cooperate may be taken into account by the court in determining the right to or the amount of the reimbursement asserted.