ERISA Liens

When small companies provide health insurance to their employees, they buy it from large insurers, like Blue Cross Blue Shield of Illinois (“BCBSIL”), on their employees’ behalf. When they do so, they are paying for not only the costs of the services provided (BCBSIL paying for medical bills), but also BCBSIL’s profit and overhead (employee salaries, office building rent, utilities, etc.). These additional costs result in higher prices to the consumer. In contrast, rather than buy insurance from BCBSIL like small companies, very large companies (e.g., Walmart, Chrysler, etc.) try to provide health insurance for cheaper by acting as their own health insurer for their employees and just paying BCBSIL (or another company) a smaller fee to administer the program. If you are an employee of a large company, even though you might have a health insurance card with BCBSIL’s name on it, the money used to pay your doctor’s bills might actually come from your company. The purpose of having BCBSIL’s name on the card is to make your health insurance card more universally acceptable.

Very large employers also have a lot of political power. Accordingly, in 1974, Congress passed Employment Retirement Income Security Act of 1974 (“ERISA”). One of the many provisions it requires is that, in the event an employee is injured in a car accident (or suffers any other injury where the employee has the right to sue) and the employer pays the employee’s medical bills, the employer is entitled to be reimbursed 100% of what it paid for the medical bills. That is not a problem if the person who caused the injury is well insured (i.e. if it the at-fault driver was working for a company or the government). However, it becomes a big problem if the at-fault party is underinsured (e.g. a poor person buying state-minimum coverage) or if the recovery is reduced because the employee is partially at fault. If the large employer pays out $50,000 in medical bills and the employee only recovers $25,000, then ERISA says that the large employer gets reimbursed the entire $25,000 even if it means the employee and even the attorney who obtained the $25,000 get nothing. As you might imagine, attorneys get very upset when this situation arises: we spend hours and hours of hard work and thousands of dollars of our own money to obtain compensation for a wronged client only to see some very large company come in and claim it all. Not only does the attorney suffer a substantial loss on the case, but it becomes our job to explain the problem to the client. Clients love blaming the messenger.

With that said, we have our ways of pushing back, of course, which I won’t publish to the world here. But the problem remains. If you are employed by a large company, when choosing an attorney, make sure he or she is familiar with how to handle an ERISA lien.

Always Take the Ambulance

I’m always baffled at the frequency by which people refuse ambulance transportation after a potentially injury-causing event.

You’re not a doctor (most of the time). You don’t know whether you’re injured or not. Even if you are a doctor, often times the shock caused by trauma will give you an adrenaline rush that may disguise an injury. Denial might have something to do with it too.

Also, if you are injured, you don’t know the extent of your injury. Sometimes people ice and elevate what they hope is a strain, only to find out after a week with no improvement that it’s a fracture. Sometimes that fracture can begin to heal on its own. If a fracture begins to heal on its own due to a lack of medical intervention, and it begins healing in an improper position, you may have to have a surgeon re-break the bone before setting it in its proper place. Not only can a re-break be painful, it will delay your ultimate healing, which only makes your misery worse.

If a neutral observer like a police officer calls you an ambulance, from a medical perspective, you should probably take it.

Additionally, you should take the ambulance for legal reasons. When an ambulance arrives on the scene of an injury, a neutral witness, the paramedic, comes to the scene of the injury and documents both its occurrence and the immediate narration of how it occurred. Sure, any eyewitness can do the same, but random strangers are much less likely to cooperate and much less thorough in obtaining all the necessary details. Your tax dollars pay for public servants like paramedics and police officers to investigate injuries and report their findings. Get what you paid for.

Many insurance companies take the position of “deny, delay, don’t pay” when handling claims. If your word, uncorroborated by a police officer, paramedic, or other eyewitness, is the only source as to how an incident happened, expect the defense on your case to argue that you’re fabricating how the incident actually happened. You didn’t tear your ACL because the property hasn’t been up to code since the Eisenhower administration, you tore it when you were playing basketball and created an elaborate story to get a paycheck.

If you find yourself in that situation, wouldn’t it have been nice to have had a paramedic come to the scene and record the date, time, location, and cause of your fall? Don’t open up a weakness in your case just to save a few bucks.

Why does my case take so long? Three reasons.

Money: Americans typically spend 5 days of almost every week devoted to trying to obtain it. Insurance companies do too. As long as they are acting in “good faith” (the standard required of them by law), they are entitled to try to deny paying it out, or if they must pay, to delay its payment or minimize its amount. They do well when they take in as much in premiums as possible and pay out as little as possible in claims. When viewing your case from this perspective, it’s not a surprise that your case will drag on. Insurance companies also invest the premium payments they receive, so there is a financial incentive for them to hold onto the money so they can earn its time value.

Impatience: Often times, an injured person’s case is the only legal case they will have during their entire life. He or she will focus on it frequently. In contrast, once an insurance company finishes one case, they just move on to the next one. If one case doesn’t settle, it will move on to trying to settle the next case. They are also well aware of your impatience. If they think that they can get you to accept X now instead of a multiple of X two years from now, they will do it. The best settlement offers always come the morning when a jury is set to be picked.

Fairness: The law is a complex system of rules designed to level the playing field among people and balance competing interests. Just as an injured party in a legal case has a right to be compensated for his or her loss, an insurance company has the right to fully investigate the claim to ensure that it’s legally obligated to pay it. Claimants are not taken at their word, their version of events is compared to other witnesses and investigators. Investigation takes time, and insurance companies are entitled to this time by law.

How to Testify – Telling the Truth

“Conscience is the inner voice that warns us somebody may be looking.” – H.L. Mencken

The first rule about testifying is to tell the truth. While that may seem obvious, you’re forgetting that the end result of a lawsuit often involves someone who has given testimony either receiving or paying out tens if not hundreds of thousands of dollars, or more. As you might imagine, people often have tremendous difficulty following this basic rule.

There are many reasons to tell the truth: It’s the right thing to do, testimony becomes a permanent court record which your children could look up someday, there are legal penalties for perjury, etc., but you knew all of this before you began reading. The point of this article is simple: if you are dishonest while testifying, you will be caught, and it will backfire.

As the quote above suggests, in the context of litigation, someone is looking. Prior to anyone saying a word under oath, attorneys for each side have typically reviewed a mountain of documentary evidence – police reports, incident reports, medical records, photographs, surveillance videos, etc. The contents of these materials contain an endless amount of prior statements. While telling a lie under oath seems simple, the trouble comes in trying to remain consistent about the lie every time the topic comes up both before and after telling the lie, often a timeline of years. The point: Liars get caught, so don’t lie.

Moreover, giving testimony is not a quick “in and out” experience. Under Illinois law, an attorney has a right to depose a witness with up to three hours of questions. When we suspect a lie, we are taught to keep asking and asking related questions in the hopes that at some point the deponent either breaks and confesses the truth, or more likely, digs their hole even deeper by continuing to lie and lie and lie, often times creating an extravagant concoction that defies belief. Frequently, the witness is giving their first and last deposition in their lifetime, whereas I sit in on around 5 depositions per month. The point again: Liars get caught, so don’t lie.

Keep it simple. Don’t turn a good case into a terrible case by lying in a mistaken attempt to create a great case.

Lawsuits and the Internet

Injury victims must never forget that there is an entire industry of attorneys and insurance company claims department employees devoted to weeding out fraudulent claims. The way they accomplish that is by vigorously defending each and every claim and lawsuit as if it was fraudulent.

One current method being pursued is through statements injured parties make on the internet, whether in email messages, blogs, or posts on social media forums such as Facebook, Twitter, and Instagram. For example, during litigation, one specific municipal defendant generally requests: “Any and all social media or other electronic postings, blogs, conversations, photographs, tweets, feeds, comments, or websites authored by or concerning the plaintiff for the one year prior to the accident through the present date. If any portion of the foregoing has been deleted, please state form of the data, the subject matter, date, time and reason for deletion” and “All emails authored by or concerning the plaintiff, related to the subject matter incident, the plaintiff’s condition and/or the damages claimed.”

Now, just because a party to litigation requests something from another party doesn’t mean that it must be produced. A party responding to these requests has an opportunity to object, and the dispute can then be put before a judge for determination. To date, certain courts have refused to allow the production of these materials. See Ehling v. Monmouth-Ocean Hospital Service Corp., 2013 WL 4436539, (District Court of New Jersey, August 20, 2013); Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (Central District of California 2010). However, Illinois courts have not yet had an opportunity to weigh in, and there’s no guarantee that they will side with the courts refusing to order production of this information. In fact, a Cook County judge recently gave a speech to a continuing education forum indicating that she would order production of all of this material.

So how do you protect yourself from this intrusion into your privacy?

  • Don’t use social media while your case is pending.
  • If you must use social media, don’t discuss your injury, your lawsuit, and definitely don’t discuss how your injury happened.
  • Also, be mindful that your comments and photographs may contradict your claims in the suit, i.e. vacation photos when you’re claiming loss of a normal life.
  • Don’t accept friend requests / invitations to connect from anyone you don’t know.
  • Set your privacy settings to only allow your family and friends to see your postings, and not defense attorneys or insurance claims professionals.

What if it’s too late and you’ve already posted before you’ve consulted with an attorney? Unfortunately, you’re stuck. If you delete the content you’ve posted, the court considers this destruction of evidence. The jury may be instructed to assume that the content you posted was harmful to your case, regardless of whether it actually was. Courts don’t treat destruction of evidence kindly.

Remember, everything can be intentionally misconstrued if someone really wants to. You may have been sedated on pain killers for the entire miserable one-hour bumpy car ride to the Indiana Dunes and your therapist may have even recommended aquatic therapy, but when you’re at trial, you don’t want a defense attorney showing the jury pictures of you holding a piña colada on the beach moments after your attorney asks them to award you tens if not hundreds of thousands of dollars for your suffering.

Pothole Season

Once again, it’s pothole season. We are all walking and driving around in a minefield of dangerous conditions. Potholes (and other property defects) are generally caused by the freeze and thaw process of our climate. When water accumulates in soil underneath a pavement, such as concrete or asphalt, the water weakens this soil’s consistency. When this water freezes, it can cause the pavement above it to shift, creating a variety of different problems. Sidewalk blocks can crack or shift, often creating un-level conditions which are ripe for tripping. Also, when extremely heavy vehicles travel over pavement covering a weakened subsurface below it, a pothole is formed.

However, as humans, we’re conditioned to expect smooth consistent surfaces in areas which are intended for walking. So when we encounter these dangerous conditions, often concealed by snow or poor lighting, serious injury can often result. So what are the legal responsibilities of property owners and the people traversing their property with respect to these dangerous conditions?

Many people are under the mistaken assumption that if you get hurt on someone’s property by some kind of dangerous condition, the property owner is automatically liable. However, it’s much more complicated than that. If that were the law, owning any property at all would be much more expensive than it currently is. Instead, Illinois law attempts to strike a balance between the rights of the injured and those of private property owners*. Specifically, both property owners and the people traversing that property are required to “exercise reasonable care under the circumstances” regarding dangerous conditions on the property. 740 ILCS § 130/2. Note that this discussion only contemplates people who are on the property with the owners permission, as the law is not friendly towards trespassers.

So what does “reasonable care under the circumstances” entail? For a property owner, generally, it means that he or she has a duty to inspect their property with some regularity for unsafe conditions. Ward v. K-Mart, 136 Ill.2d 132 (1990). If, during these inspections, a property owner finds a dangerous condition, it’s expected that they do something about it, whether that means repairing it or simply providing a warning to passersby. However, “reasonable care under the circumstances” is intentionally vague, meaning that the question of whether a property owner acted with reasonable care under a specific set of circumstances will often be left to the opinions of a jury.

However, simply filing a lawsuit does not mean that you can get before a jury to have your case heard. Illinois law does not let every case reach that stage. A judge can throw a case out beforehand under many circumstances, including the following:

  • Property owners have no responsibility to repair/warn of conditions that are 1) known of by the injured person, 2) open and obvious (such as bodies of water and changes in height), or 3) of the type “reasonably expected to be discovered”.
  • Property owners have no responsibility to repair/warn of conditions which are hidden and unknown to the property owner (remember, however, that they do have a responsibility to inspect).
  • Property owners have no responsibility for actions resulting from the misuse of the property or anything on it by the injured person.

So as a private property owner, what can you do to limit your risk and keep your insurance premiums affordable?

  •  Develop a property inspection program commensurate with the size and scope of your property. Depending on what kind of property is at issue, this can be as simple as visiting the property and walking the lot once a month or as complex as written policies and procedures with logs showing when inspections were done and their results.
  • When you do find a problem, do something about it. If a repair is prohibitively expensive, consider a warning. Remember, the law doesn’t require that you repair anything, just take “reasonable care under the circumstances”. Would repaving your parking lot cost you $7,500? Why don’t you just spray the pothole with bright orange paint or put a cone over it? Don’t like the color orange? Well you won’t like a lawsuit either.

As a member of the public at large who has to face the hazards of life every day and can’t afford a $30,000 surgery and 2 months off work, what can you do to protect yourself?

  • Remember that you also have an obligation to act with reasonable care as well. Look where you’re going. Wear appropriate footwear. Don’t jog on ice.
  • When you find a problem, you should also do something about it. Notify the property owner. The number one defense in premises liability litigation is “I didn’t know.” Make sure he or she is on notice of the dangerous condition and has an opportunity to do something about it.

My late grandfather used to tell me “an apple a day keeps the doctor away”. Wouldn’t you love to keep the lawyers away too?

*Government property such as city streets, sidewalks and public buildings are subject to special exceptions.

Your State Government at Work

New legislation this year favorable to injury victims:

-Public Act 98-548 requires Defendants to timely perform settlement agreements. 735 ILCS § 5/2-2301. Nothing makes my clients more upset than finally agreeing to a settlement after contentious litigation, only to learn that the Defendants are dragging their feet to delay payment. This bill sets deadlines and creates financial consequences if those deadlines are not met.

-Public Act 98-519 raises minimum automobile liability insurance limits from $20,000 per person/$40,000 per occurrence to $25,000 per person/$50,000 per occurrence, effective January 1, 2015. Despite decades of dramatically rising medical costs, these limits had not been increased in 24 years since the Illinois General Assembly first required motorists to carry liability insurance in 1989. These modifications are a small step towards helping injury victims recover from the financial shock of life’s catastrophes and will have a negligible impact on consumer premiums.