One of the many frustrating things a person can experience after accepting an injury settlement with the at fault party’s insurance company is realizing how little of the money ends up in the injured person’s pocket.

For example: Jim, 65 years old, went for a drive one Sunday afternoon, and while stopped at a red-light, another car rammed into the back of his car. Jim ends up at the emergency room, he’s diagnosed with a neck sprain, and told to follow up with his doctor. He does, and his doctor prescribes three months of physical therapy. Fortunately for Jim, he’s feeling much better after completing 10 physical therapy sessions.

The ambulance, the hospital, Jim’s doctor’s office, and the physical therapist billed Jim’s auto insurance throughout Jim’s medical treatment. The total bill was $5,000, all of which was paid through Jim’s $5,000 in medical payment coverage. Jim was happy to have the medical bills paid, and he appreciated his insurance company honoring the premiums he’d paid for the past 30 years without ever making a claim.

Three months after the crash, the at fault party’s insurance company is hounding Jim with phone calls and letters about settling the bodily injury claim against its insured. Eventually the insurance adjuster tells Jim, “We’ll offer $6,000 to settle your claim; I can send you the release today, and after you sign, we’ll send you a check.”

$6,000 sounds low to Jim. Definitely not worth his experience over the past few months, but still, it could be worse. He wants to be done with the whole thing: “I’ll put the $6,000 in the bank and move on with life.” So Jim thinks….

A week or so later, a check arrives: $1,000. “What happened to the other $5,000?” The insurance adjuster tells Jim that $5,000 was sent to Jim’s auto insurance company for repayment of the medical payments. “It’s called subrogation,” the adjuster tells Jim.

Subrogation is a legal term that means that someone (or thing) is standing in place of another, holding the same legal rights as that other person. In our example, Jim’s insurance company asserted a right to stand in Jim’s place and recover its $5,000 medical payments from the at fault party’s insurance company.

Just because an insurance company says it has subrogation rights doesn’t make it so. It’s a matter of analyzing an insurance policy or other contract, the Ohio Revised Code, or even federal law to determine the legitimacy of the claimed right to subrogation or reimbursement. And even if there is a right to subrogation or reimbursement, the law provides reductions to subrogation or reimbursement rights in certain situations—to help the person who was actually injured.

But the important thing is for the injured person to know—before accepting a settlement offer—how much of that money actually ends up in his or her pocket. If Jim had known that by accepting a $6,000 offer, he would have received a check for $1,000, would he have accepted that offer?

A lawyer experienced in dealing with these issues can help navigate the complexities of subrogation and rights of reimbursement, and help you make an informed decision about a settlement offer. Before signing the release that the insurance company seems so eager to provide, make sure you understand the details of the settlement, and where that money is going.

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“Givem the medical bills.” Not an uncommon reaction when I describe my client’s injuries— injuries that were caused by someone else needlessly endangering their safety. “Givem the medical bills.” I sigh….

I’ve learned that it’s not that the person who responds, “givem the medical bills” is heartless or cruel; they just haven’t spent much time thinking about the harms and losses caused by a significant, debilitating injury. The “givem the medical bills” person has likely never been in my client’s situation of having something valuable taken from them—something like their health, their ability to function without pain, their ability to do the things that made their life worth living like go for a walk, a bike ride, or giving their loved one a hug.

John loved to ride his road bike—he’d been an avid bicyclist for more than 10 years. He didn’t ride competitively, but every Saturday morning he’d wake up early and go for a long bike ride—usually at least 10 miles, sometimes over 30. John worked Monday – Friday; he got up early, worked long hours, went to bed and did it over and over day after day. It’s not that he hated his job, but he sure looked forward to his Saturday bike ride.

One Saturday, a driver wasn’t looking where he was going and clipped the back tire of John’s bike: John wound up in a ditch by the road. An ambulance arrived and took John to the hospital, where he was diagnosed with a fractured right ankle. John spent the next 24 Saturdays going to medical providers rather than his weekly bike ride. Unfortunately, even after the medical care and treatment, he was never able to ride his bike without some discomfort in his right ankle.

Every Saturday brought a new medical bill. Does paying the weekly medical bills bring back what was taken from John by the driver’s carelessness?

When I take on a case like John’s, I represent a human being: a human being with a right to life, liberty, and the pursuit of happiness—a precious right that has been taken away. Our civil justice system is not an eye for an eye, or a life for a life. We don’t go out and break any ankles because John’s ankle was broken—that’d be a bit barbaric. But that doesn’t mean there aren’t consequences for carelessness.

Reasonable compensation for John means restoring 100% of the value of what was taken—it means providing the fair-trade value for his harms and losses. And money is the only way our civil justice system has come up with to do this. What amount of money is needed to fix what can be fixed, help what can be helped, and make up for what cannot be fixed or helped? If a man in a black suit with a briefcase full of cash had arrived at John’s doorstep before John left for his bike ride the day his ankle was broken, what amount of money would be needed in the briefcase for John to say “I’ll take the deal—that’s the fair-trade value for what I’m going to experience today and the rest of my life.”

If you’ve suffered harms and losses because of another person needlessly endangering your life, liberty, and the pursuit of happiness, I’ll work with you to fix what can be fixed, help what can be helped, and make up for what can’t be fixed or helped.*

*Credit to David Ball (David Ball on Damages) and Nicholas and Courtney Rowley (Running with the Bulls) for some of the ideas and language contained in this post.

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Superbowl Sunday brings new commercials every year—some good ones that bring smiles and laughs, others that make your heart feel good, and some that just make you cringe or scratch your head. Which industry spends the most money on advertisements? I’d say insurance companies….

Aaron Rodgers throwing his tennis ball a bit too far, the Chris Paul look-a-like shattering the mirror with the kettlebell, Patrick Mahomes getting a haircut, and Peyton Manning and Brad Paisley singing duets—these are all commercials for insurance. Some insurance companies don’t use star athletes or singers in their commercials—they rely on beautiful images of a family with words like “protect,” “safe,” and “secure.” Others rely on a lizard with an accent, although I haven’t seen that reptile for a while.

Insurance is a necessity in American society: you’re required to have auto insurance to drive a car, and you get home insurance when you sign a mortgage. And that doesn’t have to be such a bad thing. By paying premiums every month for years and years, we are investing in the civil justice system. When something bad happens, the insurance company is supposed to step in: policyholders pay money to the insurance company for the insurance company’s promise to provide coverage if the need arises. It’s the insurance company’s job to step up for the insured wrongdoer and make things right for the victim who has been harmed—to fix what can be fixed, help what can be helped, and make up for what can’t be fixed or helped.

So what’s the problem?

Two things really: (1) Insurance companies are not human; and (2) Insurance companies are for profit businesses.

Insurance companies aren’t terrible at evaluating the cost of a broken windshield caused by Aaron Rodger’s errant tennis ball, or the mirror shattered by the kettlebell that slipped from the Chris Paul looka-like, or the hoofprints on the hood of the car left by the dancing deer. Those are property damage losses, and the insurance company has a system for appraising the repair or replacement value.

But what about the value of an injured person never being able to sit in a chair without pain again, or someone’s ability to do a Sudoku puzzle being taken, or the grief and sense of loss experienced because of a loved one dying in a crash? Insurance companies fail miserably here, in part because they are not human. Insurance companies value economic loss—not human loss. And because of this lack of humanness, insurance companies fail to protect the humans the company signed up to protect—both the insured wrongdoer and the victim harmed by the insured.

Insurance companies chose to be in this business to make money. It’s not like insurance companies signed up out of the goodness of their heart—they don’t have hearts…. Despite the pretty phrases “like a good neighbor,” “on your side,” “in good hands,” or “peace of mind,” insurance companies are extremely conflicted entities: they are multi billion-dollar international corporations designed and engineered to collect as much in premiums and pay as little out on claims as possible.

How much do you think the insurance company pays guys like Peyton Manning and Brad Paisley for an hour of their time filming a commercial? $100,000? More? And yet, what about when someone is injured by that insurance company’s insured? What value does the insurance company place on an hour of excruciating pain, an hour-long surgery, an hour of physical therapy to try to regain strength in an injured leg, an hour of being paralyzed—when the injured individual is not Peyton Manning, Patrick Mahomes, or Aaron Rodgers? What does this say about what the insurance company values?

What happens when an injured person makes a claim against an insurance company? Unfortunately, all too often the answer of the insurance company is to deny, delay, and minimize. If a fair settlement is not possible without litigation, the injured person is forced to file a lawsuit. Who do they sue? The good neighbor? The talking lizard? No. The named Defendant is the insured—the person who many times paid premiums for years in exchange for the insurance company’s promises to protect their interests. And most every time, the insurance company has said NOTHING about the injured victim’s attempts to settle the matter without filing lawsuit, and even after the lawsuit is filed, the named Defendant remains in the dark about what’s really going on. Whose interests is the insurance company truly protecting?

Our civil justice system has a curious rule. Most of the time, there can be no mention of the insurance company holding the purse strings during a trial. It’s like the rule in fightclub: never talk about the insurance company, even though everyone either knows or is wondering about it….

So in most civil cases, there are two humans (the Plaintiff and Defendant—neither who really want to be there most of the time), and the non-human insurance company calling the shots from the shadows. The insured Defendant is just a pawn used by the insurance company, and the injured Plaintiff is just a number that the insurance company is trying to minimize. Imagine if the insurance company valued the injured person’s life the way they value its commercials?

What’s the answer for the insurance company’s callousness? Human beings like you. Part of our bill of rights guarantees injured victims the right to a civil jury trial—a trial heard by everyday human beings who decide the true value of an injured victim’s harms and losses. Human beings who value life, liberty, and the pursuit of happiness, stand up to insurance companies by placing value on the time an injured person was forced to spend going to medical appointments and physical therapy rather than going for a walk with a friend or a bike ride with their child. What if the insurance company valued that life the same way they valued Aaron Rodgers appearing in their commercial?

If you’ve suffered or are suffering harms and losses, and an insurance company is failing to recognize the value of what’s been taken, I hope you’ll call me. I promise to value you as a human being, and to fight for your right to life, liberty, and the pursuit of happiness*.

*Credit to David Ball (David Ball on Damages) and Nicholas and Courtney Rowley (Running with the Bulls) for some of the ideas and language contained in this post.

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