Legal Arguments to Reduce Subrogation Claims
If you have been involved in an auto accident, slip and fall incident, been a victim of a dog bite, or any other personal injury case, you need to understand your obligations when settling a personal injury case.
Many Ohioans don’t realize that the injured person is responsible for repaying health insurance and auto insurance companies for any paid medical bills. In other words, a health or auto insurance company can recoup payment of medical bills. This is commonly referred to as a subrogation claim. It is one of the most unfair rights that the legislature has given to the insurance companies. Even though you have paid your premiums to have this coverage, the insurance company has a right to collect from you any medical bills paid on your behalf.
If you are trying to resolve your personal injury case on your own, it is critical to understand this law when developing your plan. As we’ve witnessed firsthand with our clients, health and auto insurance companies are willing to negotiate on subrogation claims.
Here are some steps to verify that a right of subrogation exists, and, if so, how to negotiate with insurance companies.
First, you need to identify the subrogated interest that you are dealing with. It can be either:
- Health insurance
- A medical payment provision from your auto insurance policy
- Worker’s Compensation
Always send a request (via certified mail) for copies of the plan documents to verify that a right of subrogation exists.
Have You Been Made Whole?
If you have not been fully compensated for all of your injuries, you might argue that the insurance company is not entitled to be fully compensated for their subrogation claim. An insurer does not have a right of subrogation until you have been fully compensated.
When handling this situation for a client, we send a letter to the subrogated carrier providing them with a summary of how our client was injured, the injuries sustained, the total amount of medical bills, the maximum amount of automobile insurance available, legal fees and expenses to date, and the reasons why we feel the settlement will not fully compensate our client. In support of our argument that our client has not been made whole, we include letters from our client’s treating physicians which document our client’s pain and suffering, permanent injuries and the extent of any future medical care and treatment.
Disputed Liability & Proximate Cause
If factual issues exist when liability issues are being disputed, you may need to send the subrogated carrier a letter summarizing these issues. Consider attaching any transcript copies, accident reports or other documentation which reveals that a disputed liability problem exists.
If you had any pre-existing problems (prior or subsequent falls or prior or subsequent accidents that affect causation in your case) you might send a letter to the subrogated carrier summarizing all of the reasons why a proximate cause issue exists in your case. Include copies of any medical reports from your treating doctor that reflect a pre-existing problem, prior or subsequent injuries, illnesses, or any other problems affecting causation in your case.
Remind the Carrier about Sharing Attorney Fees
Last, but not least, remind the subrogated carrier that it is required to share the attorney’s fees and expenses.
Questions about a subrogation claim? Contact our law firm in Columbus, Ohio.