 Miller & Tischler, P.C. 28470 W. 13 Mile Rd. Ste. 300
Farmington Hills, MI 48334
(248) 945-1040 |
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M&T
No-Fault News
Summer 2013
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28470 W. 13 MIle Rd. Ste. 300 Farmington Hills, MI 48334 248-945-1040 |
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Dear Friends,
We hope the summer is treating you well. Here is what is happening in the No-Fault arena as we start the summer season.
Sincerely,
Wayne, Ronni, Maureen and Mark
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LEGISLATIVE UPDATE
NO-FAULT DESTRUCTION
Those who have been closely following political developments in recent months know that our No-Fault Law has been under attack by the insurance industry and their allies in the Legislature. A malignant piece of legislation (HB 4612) contains a wish list of the most regressive revisions imaginable, including a $1 million cap on No-Fault benefits. Although the cap is the most obvious change, virtually every section of the law contains anti-consumer, anti-patient, and anti-provider provisions. It is to our great regret that Governor Snyder has chosen to support this legislation. As has been the case in the past when our No-Fault Law has been threatened, consumers have banded together to fight back. This time, we are joined by the health care industry and a number of Republicans who provide bipartisan opposition to this horrible legislation. As a result, we understand that HB 4612 will be pushed off until this fall.
Kevin McKinney, lobbyist for the Coalition to Protect Auto No-Fault (CPAN) says: "It is unclear what will be the next move of the Administration or House leadership but they continue to try and move the undecided and those leaning no with aggressive robo calling into their districts. The insurance agents sending out emails and letters to all of their customers pushing them to contact their legislators if they want lower premiums is having some impact as well. The vote count remains somewhat fluid day to day but we are bolstering a few no votes with our own efforts in the districts. I strongly urge you to continue to write your letters and do everything you can in contacting your legislator to vote no on HB 4612. Proposed caps limits of $5 million and now $10 million are being shopped around and are softening some concerned with the initial $1m cap." We echo Kevin's comments and strongly urge that there be no let-up in our efforts to preserve our No-Fault Law.
AFFORDABLE CARE ACT INSURANCE AND COORDINATION WITH
NO-FAULT INSURANCE
As many of you may already know, on March 23, 2010, President Obama signed the Affordable Care Act (ACA) which requires everyone to purchase and be covered by a policy of health insurance in 2014. Individuals below a certain income level will be able to receive generous subsidies which may just about cover the cost of the insurance. There will be penalties levied against individuals who fail to purchase coverage.
Regarding the coverage, in a nutshell, insurance exchanges are being set up in every state either by the state or by the federal government. Individuals will be able to access the exchange in their state, survey the insurance coverages being offered, obtain quotes for the cost of the premiums and pick the plan that best suits their needs. Qualified plans must offer benefits in the following categories: ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance abuse disorder services including behavioral health treatment, prescription drugs, rehabilitation and habilitative services and devises, laboratory services, preventive and wellness services and chronic disease management and pediatric services including oral and vision care.
One of the many questions that may arise is how the new plans will coordinate with your No-Fault insurance. In general, at this time the rules are the same. If you purchase coordinated No-Fault insurance your health insurance will still be primary to the extent of its coverage. And if you are part of a network, a PPO or HMO you will still need to treat within your network first and exhaust your coverage within your network. This is very important because if you treat out of your network, when services are available through your network, your No-Fault insurance will not pay for the treatment. Your No-Fault insurance will cover services in excess of your health plan's coverages that are reasonably necessary for your care, recovery or rehabilitation. And, as always, your No-Fault coverage will cover reasonably necessary products, services and accommodations that are not covered benefits under your health insurance to the extent the No-Fault Law will allow.
If you purchase UNCOORDINATED No-Fault insurance, your No-Fault insurance will be primary and your accident related care may be billed to your No-Fault insurer without regard to your health insurance. We encourage you all to consider purchasing UNCOORDINATED No-Fault coverage. The cost in dollars to you will not be that much more and if you are in an accident you avoid the headaches, uncertainties and delays that coordination of benefits may give rise to.
We caution that this is our understanding of how things will work in the new order at this time. The ACA is complex and this is simply a general overview. Things may change as the ACA is implemented and the inevitable bugs are resolved. We will keep you informed.
LEGAL DECISIONS AND SETTLEMENTS
AUTOMOBILE NEGLIGENCE SETTLEMENT: MEDICARE
INDEMNITY ISSUE
Wayne Miller recently settled an automobile negligence case. Our client was rear-ended on the freeway, resulting in shoulder surgery. The parties ultimately settled for $82,500. However, the insurer then demanded that both our client and our firm indemnify them from any potential request by Medicare for reimbursement of benefits paid. Given that our client was not eligible for Medicare (only 40 years old), was not paid anything by Medicare, and that under Michigan's No-Fault Law our auto negligence claim did not include a claim for medical benefits and therefore the settlement did not include any payment for medical benefits, we objected to the proposed indemnity language. We had to file a motion to enforce the settlement WITHOUT the Medicare lien language. The Judge granted our motion and we were able to proceed with the settlement without fear of Medicare indemnity. This case illustrates both the ever increasing complexity of automobile litigation, as well as increasingly seen insurer efforts to obtain protections and indemnities that are not reasonable under the law.
ESTABLISHING MOTOR VEHICLE INVOLVEMENT IN A MOTORCYCLE ACCIDENT LEADS TO SIGNIFICANT PROVIDER SETTLEMENT
Mark Schreier recently resolved a case in which our client's patient suffered serious injuries while riding a motorcycle. The motorcyclist took evasive action to avoid impact with an automobile. The car fled the scene before the police arrived. The insurer vigorously defended the cases on the theory that the motorcyclist did not qualify for No-Fault benefits because there was no motor vehicle involvement. The motorcyclist was the only witness to the accident.
The insurer defended the case on the basis that there was no mention of motor vehicle involvement until months after the accident. The insurer argued that the patient first reported motor vehicle involvement only after he hired an attorney. The police and EMS reports only referenced the motorcycle. Additionally the patient's wife, who arrived at the scene shortly after the accident, allegedly stated that there was no motor vehicle involved. The insurer also claimed that the patient's first attorney allegedly stated that there was no motor vehicle involved.
Careful review of records from the motorcyclist's 7 week post-accident admission revealed references to motor vehicle involvement well before the insurer ever spoke with the patient's first attorney. The history in these records contradicted the insurer's conspiracy theory. At the first settlement conference the insurer's counsel acknowledged this contradiction to the Court, and expressed the intent to resolve the matter for the case evaluation, which our provider client accepted. Eventually, the case resolved for the case evaluation amount of $280,000.00.
IMPORTANT SUPREME COURT RULING REGARDING VANS
In perhaps the most important decision on "allowable expenses" since Griffith , the Supreme Court in Admire v Auto Owners has significantly changed what is compensable for the purchase of a modified van.
For many years, a common claim in catastrophic injury cases has been for the purchase of a van modified for wheelchair use. We have sought, on behalf of our clients, that the insurance company reimburse the entire cost of the modified van (i.e., the purchase price plus the modifications) as an allowable expense under the No-Fault Act. Insurers often took the position that only the modifications to the van were compensable, but for many years, the courts consistently held that, under most circumstances, the entire cost of a modified van was compensable.
The Supreme Court has changed the landscape through its decision in Admire v Auto Owners, in which it held that only the modifications to the van are compensable. In Admire, plaintiff suffered catastrophic injuries in 1987. He requires wheelchair-accessible transportation to go to work, visit family, attend medical appointments, and get around the community. On three prior occasions, the insurance company agreed to pay the full cost of purchasing and modifiying a van large enough for plaintiff to get in and out while remaining in his wheelchair. In December 2006, a new van was sought by plaintiff. Although the insurance company reimbursed plaintiff for the full cost of the previous vans, this time defendant would only pay for van modifications. The case took several years to weave its way through the Court system, ultimately with the Supreme Court rendering opinion on May 23, 2013. It decided: "Because the base price of the van is an ordinary transportation expense-an expense that is as necessary for the uninjured as the injured-and is easily separated from the modifications, defendant is not required to pay for it under the no-fault insurance act."
What does this mean for you or your patients? If catastrophically injured and require a wheelchair van for transportation, the insurance company is now only obligated to pay the cost to modify a van plus medical mileage. While the insurance company may have paid in the past the full cost of the van plus the modifications, Admire no longer requires they do so.
Of note is that Admire was a van case, not a housing case. The Court in Admire did not address any modified home claim but in its opinion, overturned two housing cases that used an incremental approach to payment for housing. That aside, it is unknown at this point how the Admire decision will affect housing claims. What we do know is that the matter is certainly not settled and we expect more to come on the issue of modified home claims in the near future.
Stay tuned!
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IMPORTANT ANNOUNCEMENTS
We are proud to welcome Kevin A. McNeely to our legal team. Kevin brings more than 27 years of experience to our team. He graduated from Hofstra University and the University of Detroit School of Law. Kevin serves as a Wayne County Circuit Court case evaluator, independent arbitrator and is a member of the Michigan Association for Justice. Welcome Kevin!
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About Our Law Firm
Miller & Tischler, P.C., represents survivors of catastrophic brain and spinal injuries, their families and their professional service providers who are having difficulty pursuing their entitlement to receive No-Fault benefits for injuries sustained in motor vehicle accidents. We help our clients understand how their No-Fault insurance may coordinate with other kinds of insurances they have whether it be private health insurance, Medicaid, Medicare, Workers' Compensation, or Veterans benefits. We also assist our clients in learning about and obtaining all of the benefits to which they are entitled, whether they be individuals or service providers.
Let Us Help You.
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