Great questions! Some answers:

Back on Feb. 4, 2019, the North Carolina Department of Health and Human Services announced the selection of Prepaid Health Plans that will participate in Medicaid managed care when the program launches in November 2019. The Department awarded contracts to five entities:

• Statewide PHP contracts were awarded to the following entities which will offer Standard Plans in all regions in North Carolina:
  • AmeriHealth Caritas North Carolina, Inc.
  • Blue Cross and Blue Shield of North Carolina
  • UnitedHealthcare of North Carolina, Inc.
  • WellCare of North Carolina, Inc.
  • A regional PHP contract was awarded to Carolina Complete Health, a provider-led entity, which will offer plans in Regions 3 and 5.

Plaintiff lawyers who represent clients who are Medicaid recipients who have been in car wrecks need to track what these entities pay for medical treatment in order to account for the Medicaid lien and repay the government.

Before this privatization of Medicaid, all of the subrogation has been handled by a group called HMS. Now that the PHPs have come along, we have to request subrogation information from each PHP.

Here is a list of the subrogation contacts for the Medicaid PHPs.

PHP Medicaid Lien Contact Information

Carolina Complete Health

Rawlings Group
4 Eden Parkway
La Grange, KY 40031
Phone: 888-285-1276
Fax: MANUAL FILE COORDINATOR at 502-440-1100
Email: CenteneReferrals@rawlingscompany.com

WellCare

Rawlings Group
4 Eden Parkway
La Grange, KY 40031
Phone: 888-285-1276
Fax: MANUAL FILE COORDINATOR at 502-440-1100
Email: CenteneReferrals@rawlingscompany.com

Healthy Blue

 P.O. Box 659940
San Antonio, TX 78265-9939
Phone: 844-916-3651
Fax: 844-634-2520
Email: NCCompliance@healthybluenc.com

AmeriHealth

Attn: Subrogation Unit
200 Stevens Drive
Philadelphia, PA 19113
Phone:215-863-5837
Fax: 215-863-5221
Email: subrogation@amerihealthcaritas.com

United Healthcare

Optum Subrogation
11000 Optum Circle
Eden Prairie, MN 55344
Fax: 800-842-8810
Email: subrogationreferrals@optum.com

Trillium: www.trilliumnc.org 

Phone: 877-695-1296
Email: Trillium@gainwelltechnologies.com

_________

The subrogation providers above are subject to change, but this is the list as of 8/25/2022.

Chris Nichols
Nichols Law Firm
North Carolina and Raleigh Personal Injury Lawyer

So what does happen when someone gets hurt or killed by a drunk driver in North Carolina?

First, let me make this clear: Nichols Law Firm only represents people injured or killed by drunk drivers. We never defend drunk drivers. When I teach a class to lawyers who defend drunk drivers, I’m teaching them the best ways to help my injured clients, which sometimes can be mutually beneficial to their client.

When a North Carolina drunk driver wrecks your car and injures you or your loved ones, we all hope that they are arrested at the scene. The arresting officer will do field sobriety tests, and if the driver does poorly on the tests, there will be probable cause to request a breath test for blood alcohol concentration. The drunk driver can refuse that test but the arresting officer can force a blood draw to get the results. Any blood alcohol concentration over .08% will result in an arrest for driving while intoxicated. Some refer to that simply as DWI or DUI.

Is a personal injury claim against a drunk driver any different from a regular personal injury claim?

A personal injury case against a drunk driver is pretty similar to one against a non-drunk driver. An adjuster from the drunk driver’s insurance company will want to take a recorded statement from you over the phone. They may ask you about all the ways you think the driver was intoxicated. It’s really important to get that right and make sure that you tell them all the signs of intoxication you saw: glassy eyes, smell of alcohol, unsteady on feet, slurring words, and of course, any statements the other driver made about drinking.

So what are punitive damages in drunk driving cases?

In North Carolina, under General Statute Chapter 1D, Punitive Damages, anyone hurt or killed by a drunk driver, who proves the driver was drunk and driving negligently, may be entitled to receive punitive damages on top of the compensatory damages present in every injury case. Compensatory damages are things like medical bills, lost wages, pain and suffering, permanent scars, lost work, ambulance and doctor bills, and permanent disability. Punitives damages are damages on top of the compensatory damages and are meant solely to punish the drunk driver and deter other people from drunk driving.

§ 1D-1. Purpose of punitive damages.

Punitive damages may be awarded, in an appropriate case and subject to the provisions of this Chapter, to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts. (1995, c. 514, s. 1.)

In general, punitive damages are limited to 3 times the amount of the compensatory damages, or $250,000, whichever is greater. But the Legislature made an exception to the cap on punitive damages in North Carolina: drunk drivers.

§ 1D-26. Driving while impaired; exemption from cap.

G.S. 1D-25(b) shall not apply to a claim for punitive damages for injury or harm arising from a defendant’s operation of a motor vehicle if the actions of the defendant in operating the motor vehicle would give rise to an offense of driving while impaired under G.S. 20-138.1, 20-138.2, or 20-138.5. (1995, c. 514, s. 1.)

Do I need a lawyer to represent me when I have been hit by a drunk driver?

If you or a loved one gets hit by a drunk driver in Raleigh, Durham, or Chapel Hill, it is a good idea to at least have a free consultation with a lawyer. There are many reasons for this. First, you may be required to come to court as a witness in the drunk driving prosecution. Or you may be called on to give a victim impact statement at the drunk driver’s sentencing hearing. While the local District Attorney offices do a great job with victims, they can’t “represent you” or give you legal advice. Having your own lawyer, right from the start, means that I can come to the criminal court trial with you and help you through out. It also means that I will monitor the criminal case, and make sure the drunk driver receives appropriate punishment.

How does my lawyer help when I’m called as a witness or victim of a drunk driver?

Along the same lines, the criminal defense attorney can sometimes coordinate with me, as your attorney, to be very helpful to the injured party by facilitating money settlements with the injured party as part of criminal restitution or civil settlement. Sometimes the drunk driver’s lawyer will also coordinate with me to make sure that the insurance company for the drunk driver is paying a fair amount of money, considering the compensatory and punitive damages.

What experience does Nichols Law Firm and Chris Nichols, Attorney have making claims against drunk drivers?

I’ve been practicing law for 25 years and my first few years I actually defended drunk drivers when I worked for a senior attorney. This gave me great practical insight into how the criminal prosecution works. As a civil lawyer, I also have to prove the defendant was intoxicated, and having worked on both sides of this, I have a lot of knowledge. At any given time, my office usually has 4 or 5 cases against drunk drivers. Because of this, we have developed systems to catch drunk drivers in any lies or exaggerations they make about their alcohol use and rehabilitation. It’s not unusual for a criminal defendant to testify they have “put down the bottle”, only to have our private investigator see them buy booze at the ABC store and drive away on a limited permit that does not allow for that. When we catch defendants in lies like this, the cases against them often settle for more money and faster. Rarely do we have to try one of the civil cases against drunk drivers.

If you or a loved one has been hurt or killed by a drunk driver, you can call me, Chris Nichols, directly, for a free consultation: 919.915.0212

Be safe out there!

Chris Nichols
Nichols Law Firm

This post is an update on an earlier post concerning changes to the law of Medicaid subrogation in North Carolina. The earlier post can be seen here: Medicaid: “Ahlborn hearings” are back thanks to the 2018 federal budget which makes Medicaid provide lien reduction hearings again. But watch the deadlines!

Here is the short version of the history: In 2013 NC amended the law on Medicaid subrogation to allow for a reduction hearing to determine Medicaid’s final lien in a third party injury case. That law stood until October 1 of 2017 when a small change to the Federal law had the effect of making the NC statute inapplicable. In anticipation of the Federal change, NC lawmakers had inserted a law in the July 2017 state budget that said in essence, “if the federal changes happen on October 1, then our law changes to this…”. The new state law eliminated the reduction hearings and also eliminated Medicaid sharing prorata with valid medical lien holders. 

Then on February 9, 2018, the Federal Budget was passed and it retroactively repealed the changes that went into effect on October 1 in the federal law. In my opinion, this had the effect of essentially time traveling back to the last day of September, 2017 and making the October 1 federal changes never happen. Which means, of course, that the NC changes conditioned on the Federal changes, never happened either.

The end result is that as of February 8, 2018, the Medicaid lien law in NC was back to the statute that existed since 2013. Or at least that’s what i thought.

That leads me to now. I filed a declaratory judgment suit and motion to determine Medicaid lien in March of 2018 to request a Medicaid lien reduction under the 2013 NC law. In the Compliant I set out all of the changes described above and that the law of NC had “reverted” to the pre-October 1, 2018 law.

The State of North Carolina filed an Answer to the complaint an unequivocally Admitted all of the following allegations in the Complaint.

Long story short, my legal theory set out above is correct.

Below are the legal allegations in the Complaint.

Jurisdiction, Venue, and Governing Law

1. This Court has subject matter jurisdiction over this action pursuant to N.C. Gen. Stat. §7A-240 and §7A-243. This Court has personal jurisdiction in this matter pursuant to N.C. Gen. Stat. §1-75.4.
2. Venue is properly laid in this Court pursuant to N.C. Gen. Stat. §1-80 and §1-82.
3. That NCGS §108A-57 governs Medicaid lien recovery in North Carolina.
4. That NCGS §108A-57 was written, in part, to comply with the requirements set out in Wos v. E.M.A., __ U.S. __, 133 S. Ct. 1391, 1402 (2013) which affirmed that Arkansas Dept. of Health and Human Servs. v. Ahlborn, 547 U.S. 268, 284, 126 S. Ct. 1752 (2006) applied in North Carolina. Ahlborn established that the Department of Health and Human Services is prohibited from recovering “a portion of a Medicaid beneficiary’s tort judgment or settlement not designated as payments for medical care” because such recovery is barred by the federal Medicaid statute’s anti-lien provision, 42 U.S.C. § 1396p(a)(1).
5. That NCGS §108A-57(a2) provides a mechanism for a determination of the portion of the beneficiary’s gross recovery that represents compensation for the Medicaid claim and requires that an application for determining the lien under this subsection shall be filed with the court “no later than 30 days after the date that the settlement agreement is executed by all parties and, if required, approved by the court.”
6. That on October 1, 2017, NCGS §108A-57, was amended pursuant to NC Senate Bill 257. The amendment, which was conditioned upon changes to federal law going into effect the same day, said:
   
   “SECTION 11H.23. If Section 202(b) of the Bipartisan Budget Act of 2013, P.L. 113-67, takes effect on October 1, 2017, as provided in Section 202(c) of that act, as amended by Section 211 of the Protecting Access to Medicare Act of 2014, P.L. 113-93, and Section 220 of the Medicare Access and CHIP Reauthorization Act of 2015, P.L. 114-10, then G.S. 108A-57 reads as rewritten…”
   
7. On October 1, 2017, the changes to the federal law went into effect which triggered the changes to North Carolina law, eliminating procedure to request a court for the determination of a medicaid lien pursuant to NCGS §108A-57(a2).
8. On February 9, the United States Congress passed, and the President signed, H.R.1892 – Bipartisan Budget Act of 2018, which contained “SEC. 53102. THIRD PARTY LIABILITY IN MEDICAID AND CHIP”.
9. SEC. 53102 of H.R.1892, the Bipartisan Budget Act of 2018, repealed subsection (b) of section 202 of the Bipartisan Budget Act of 2013. The repeal stated that it “includ[es]any amendments made by such subsection” and the repeal “shall be applied and administered as if such amendments had never been enacted.”
10. The effect of all of these statutory changes on February 9, 2018 was that because the federal changes “had never been enacted” the changes to NCGS §108A-57 set out in NC Senate Bill 257 never took effect and the provisions of NCGS §108A-57(a2) allowing for judicial determination of Medicaid’s lien came back into existence on February 9, 2018.
11. That any matter settled between October 1, 2017 and February 9, 2018, could not apply for a lien determination during that time period and that NC DHHS properly refused to grant requests for reductions during that time frame.
12. That Plaintiff’s Workers’ Compensation case was approved for settlement in an Order of the Industrial Commission in IC. File No. Y26729 filed on January 24, 2018.
13. That upon the reinstatement of NCGS §108A-57(a2) on February 9, 2018, cases settled during the October 1, 2017 through February 9, 2018 period should have 30 days to file for hearings pursuant to NCGS §108A-57(a2) and that the first day they could request such hearing was February 9, 2018.
14. That Plaintiff in this matter has filed for this hearing pursuant to NCGS §108A-57(a2) within 30 days of February 9, 2018 and has satisfied the filing requirements of NCGS §108A-57(a2).

Again, all those allegations were ADMITTED by the State.

This should settle the question of what law applies now. I will also point out that the website for the General Assembly is still displaying the “new” (but incorrect) NCGS 108A-57. You can view the “old” (but now the current) NCGS 108A-57 in the body of the budget bill, Senate Bill 257 (2017) beginning at the very bottom of page 222 and continuing on to 223. All of the “repealed” portions in that Bill are now law again. Here is the link- go to page 222 or do a search for “subrogation” within the PDF. www.ncleg.net/Sessions/2017/Bills/Senate/PDF/S257v9.pdf

My firm is now taking in limited numbers of Medicaid reduction cases for other lawyers. Make sure you remember that you only have 30 days to file and serve your Motion to Reduce Medicaid lien beginning on the date that the client settles the case (signs the Release of Claims or a court approves a settlement).

Feel free to email me or call me if you have matter you think might qualify for a reduction. 

Chris Nichols
www.NicholsTrialLaw.com
Chris@NicholsTrialLaw.com

In NC you have three years to settle or file a lawsuit for personal injury (but not death, that’s two years)

In North Carolina you have three years to either settle a personal injury case or file a lawsuit. I did not say “file a claim.” I did not say “talk with an insurance adjuster”. I did not say “be in the middle of negotiations.”

On the third anniversary of your car wreck, you either need to have a settlement worked out, in writing and agree upon by the insurance adjuster and you, or you need to file an actual lawsuit in a court of law in NC.

If you are still negotiating with that adjuster at midnight on the third anniversary of your car wreck, you can never get anything for your claim. The next minutes that adjuster will say “Sorry, your statute of limitations ran, you have no claim.” And so you ask, “Wouldn’t the insurance company tell me that my time is running out?” The answer is NO. In fact, I’ve seen situations where the insurance adjusters actively seek to delay the settlement.

The wrongful death statute in North Carolina has a two year statute of limitations

If the car wreck resulted in a death, or wrongful death in North Carolina, the time limit is TWO YEARS. Also, to sue for the wrongful death of a loved one, there must be an Estate set up in the name of the deceased and an Administrator or Executor must actually be the party that sues. Cases like that look like this:

The Estate of John Doe, Susan Doe, Administrator V. Big Truck Company, LLC 

Setting up an Estate takes time. And even though there may be one type of Estate set up, it might not be the right type to bring a wrongful death claim.

I think I get this statute stuff, do I have to have a lawyer?

Not every case needs a lawyer. Really, a lawyer just told you that. I talk to a lot of people on the phone, give them a few pointers and send them on their way. It’s sometimes a good idea to settle your own case when it is simple and small. But complicated cases probably need lawyers. So it’s always a good idea to call a lawyer like me, and ask.

But really, if you call me on the day that your statute of limitations is about to run out, there is a 95% chance that I will not be able to save you and your case. Lawyers can not send an email to the court to file a lawsuit. It sometimes takes days to draft the paperwork. We have to find the Defendant and make sure we can serve them with papers. We need to see police reports. This takes time.

In law we frequently abbreviate Statute of Limitation as SOL. And if you miss one, you are SOL on your SOL. 

When is the latest you should call a lawyer for a personal injury case?

I would say that the latest that I would get in touch would be six months before the statute runs out. Put another way, two and half years after the accident for personal injury and one and a half years for wrongful death. That gives the lawyer time to gather your medical records, talk to experts, file the lawsuit, and get it served on the defendant. You see, even though the insurance company pays the claim, the other driver is the one who gets named in the lawsuit. So it’s not as easy as my office sending a letter to State Farm. We actually have to send the Sheriff or a certified letter to someone so they can be “served.”

If you waited past two and half years, you should still call for advice. Just know that a lot of lawyers don’t like taking cases that close to the statute of limitations.

What about children or kids? How long do minors have to settle their personal injury claims or file a lawsuit?

In NC, a minor is anyone under age 18. Minor’s statute of limitations work differently than adults. A minor’s statute does not BEGIN to run until they are age 18. Then it runs the normal 3 years for personal injury. Crazy, right? So if you are in a car accident at age 2, you will have until your 21st birthday to settle the claim or file a lawsuit! This is also true for other injury claims, like sexual abuse.

But there is a catch…. (there is always a catch, right?). The catch is this: In North Carolina, the medical bills for an injured minor (anyone under age 18) “belong” to the mom, dad, or legal guardian of the minor. What does that mean? It means that because a minor can’t sign a contract, when a minor goes to the hospital or doctor and has a bill for services, that bill is actually the parent or guardian’s bill. Don’t pay it? The parent or guardian gets sued by the hospital, not the minor.

So what’s the catch? Well, the catch is this- in the example above where the two year old gets hurt in a car wreck, let’s assume the medical bills are $50,000. Three years from the date of the wreck, the parent/guardian’s statute of limitations to sue for those medical bills expires. So on 3 years +1 day, the minor can still sue for pain and suffering and other economic wages, but NOT for past medical expenses.

But, there is a catch to the catch! There is a way for the parents to assign the claim for medical bills to the minor child so that those medical bills become part of the claim for the minor that does not run out until age 21. This can be tricky and I recommend lawyer supervision to deal with this. The good news is that it can be done quickly, so if you are reading this on the 2 year 364th day of the anniversary of an injury to a minor, it might not be too late to fix that problem. Call me!

Heartbreaker

I spoke to someone today who told me that the adjuster was discussing her case with her one day before her three year statute of limitations. She even asked if that was going to be a problem and the adjuster said “you have an open file claim.” That made the person feel good, even though it was a meaningless phrase.

When she called the day after the 3 year anniversary of her accident, the adjuster said “sorry, you didn’t file a lawsuit in time, you have no claim.”

No, she can’t sue him for that. Adjusters work for the driver that hit you! Their job is to pay you the least amount of money possible. That’s what they get paid to do. Not all of them are this heartless, some would warn you to get a lawyer or file a law suit. A lot of them are very good people. But consumers don’t really have the information or ability to decide who is who.

I had to tell this fine person that she no longer had a claim. It was a heartbreaker.

So if you’ve been waiting, even if you are still being treated for injuries, please call me or another lawyer and just get some advice (free and over the phone) on your time limits and whether you even need a lawyer. I’ve been doing this (looks at watch) for 23 years now, so I’ve probably handled a case like yours before. Let’s talk.

Chris Nichols, Attorney
800-906-5984

Four people were in critical condition after the explosion at the ConAgra Foods plant in the town of Garner and 20 others were taken to area hospitals. It appears that the worst of the injured suffered severe burns.

This is an unwelcome and sadly familiar feeling for our area after the plant explosion in Apex.

I noticed in my search on the Internet for news about the explosion that law firms from out of the state of North Carolina are already posting about the explosion. I hope that these posts are part of an overall reporting of industrial accidents rather than simply an attempt to attract business. Even with law, the idea of “buying local” makes sense.

Thankfully, Raleigh and Garner have many talented lawyers experienced in industrial fires and explosions and the claims resulting from them. As anyone from North Carolina can tell you, the worst industrial accidents was the fire at Imperial Foods chicken processing plant in Hamlet in 1991.

According to official reports, twenty-five (25) people died and another forty-nine (49) were injured as the result of a fire in the Imperial chicken processing plant. Witnesses at the scene described that workers could not get out of exit that were padlocked by the plant management to prevent vandalism and theft.

There is an excellent article on the investigation and eventual prosecution of the owner of the Hamlet plant on Wikipedia found here.

I sincerely hope that the ConAgra Plant had no safety violations like the Hamlet Plant.

Interestingly, the Wikipedia entry for Hamlet says that some of the Hamlet fire victims hired an out of state lawyer who handled the Bhopal chemical disaster in India but that that lawyer did not qualify to practice in North Carolina.

I send thoughts and prayers to the families of the injured and killed.

Chris Nichols
Nichols Law Firm
Raleigh, NC

I emailed one of my friends, Bryan Milner, who is a structured settlement broker and gave him a Q & A on questions I anticipate my clients will be asking about future (and past) structured settlements. I thought this would be helpful for anyone who may be looking at a structure in the near future.

Here are the answers to my questions from Bryan.

Alleviating Structured Settlement Fears- Q & A

My client is considering a structured settlement but the situation with AIG has them (and me) worried about the safety of an annuity investment. Here are some of the questions I anticipate:

Q: If the life insurance company holding my annuity fails, what happens to my structured settlement?

A: The insurance companies are subject to regulations that require them to have assets set aside and earmarked solely for the purpose of meeting their obligations to policyholders . Even in bankruptcy, these funds are not touchable, and would still be there for the purpose of honoring their commitments. In addition, each life company that offers structured settlement annuities provides a guarantee from their holding assignment company that the scheduled payments will be made to the claimant. A document with the details of the guarantee are included in each structured settlement annuity policy.

Q: Are some “types” of structured settlements safer than others? 

A: Safety is based solely on the ability of the issuing life insurance company to pay claims. Settlement annuities, and annuities in general, are well capitalized and regulated in efforts to help ensure the safety of the industry as a whole. Pay attention to overall ratings and creditworthiness of the company you choose.

Q: Are Structured settlements “insured” or guaranteed by someone other than the company issuing them?

A: All states have a Guaranty Association Act. The Act states that in the event that a member insurer, who is licensed to sell annuities in that particular state, is ordered to be liquidated by a court, the Guaranty Association Act enables the State Guaranty Association to provide protection up to a certain amount for its residents who are holders of annuity policies with the solvent insurer. For example in North Carolina, the State Guaranty limit is $300,000.

Q: What is a qualified assignment? And does it help protect the annuity?

A: The key word in Qualified Assignment is the word “Qualified”. It simply means that the assignment procedure, if done correctly, will allow benefits to “qualify” for beneficial tax treatment under 104(a)(2). As far as the protection aspect, in most cases, the assignment company is a smaller affiliated company of the parent company that issued the actual annuity contract. Again, in most cases, the assignment company’s only assets are the settlement annuities that it owns. There are no other prospective creditors that could have a claim on the assets of the assignment company. It serves as a way of separating away from the parent’s general creditors. You can also consider a “secured creditor” status with many of the issuing life companies. That level of security puts your policy higher up on the food chain when compared to a general creditor for payback if the issuing company fails and has to be liquidated. A specialized Uniform Qualified Assignment and Release and Pledge from the life company would need to be signed at the time of settlement.

Q: If I have a structured settlement with Insurance Company A, can they “sell” my annuity to Insurance Company B like mortgage companies do? Can Insurance Company B sell it to other companies? 

A: No.

Q: If I already have a structured settlement, is there anything I can do to make it “safer?” 

A: No. The settlement annuities are so well capitalized and reserved at the highest levels, we believe they are as safe as they can possibly be. Regulatory agencies and state insurance departments have dramatically increased the reserve levels to help ensure the safety of annuities.

Q: Is it possible to “split” annuities among different companies to spread risk? Would that also help to keep the annuity amount “under” the maximum coverage provided by the NC Guaranty Fund?

A: Yes, it is possible to “split” the settlement amount into different life companies for the structured settlement in order to stay under the $300,000 limit for the North Carolina Guaranty Association Act.

Q: Historically, have any other annuity companies failed and left customers with nothing?

A: Not in the settlement industry. Executive Life was the only carrier writing settlement annuities (back in the late 80’s and early 90’s) that went into receivership. When they went into receivership the courts treated settlement recipients at a higher level since their money with Executive Life was “Settlement” money, not a traditional investment. The courts instructed Executive and the assignment companies to pay 100% on the dollar for the remainder of all policies. It was unfortunate that we had to experience that event (the Executive collapse) but it did show that the safety systems in place had the support of the court(s) and allowed settlement recipients to be made whole without interruption.

Answers from:

Bryan Milner
Settlement Planner
Milner Plaintiff Services
an affiliate of Millennium Settlements
toll free: 877-212-9990
cell: 818-926-5100
fax: 818-302-1414

Questions by:

Christopher R. Nichols, Attorney
Nichols Law Firm
Raleigh, NC 27609
800-906-5984 (toll free)
www.NicholsTrialLaw.com and www.nctriallawblog.com

The main insurer for physicians, NC Medical Mutual, has just announced that they MADE so much money last year, they are issuing a refund to doctors. And guess what? This is NOT a result of tort reform. We have had no major laws pass in our state which resulted in “savings.”

In fact, based upon actuarial studies, the reality appears to be that when lobbyists for the insurance companies were screaming for tort reform, what they were doing behind the scenes was RAISING premiums for physicains to create what I would call a “manufactured problem.” The doctors’ own insurance company was gouging them, and then asking them to donate money to “tort reform” causes, which of course, are insurance company lobby groups.

Looks like the physicians have finally reigned in their own insurance company by realizing that the “crisis”, if there is one, is mostly in the minds (and wallets) of the insurance industry.

from the News and Observer

N.C. insurer to pay dividend

Medical Mutual will also pay off debt as drop in malpractice suits boosts profit

David Ranii, Staff Writer

The state’s largest medical malpractice insurer says that fewer lawsuits filed against doctors will allow it to pay its policyholders a $3 million dividend — its first dividend ever.

Raleigh-based Medical Mutual Insurance Co. of North Carolina said it posted a 7.4 percent increase in profit last year as the number of lawsuits filed against its policyholders fell to 298 last year. That’s down from 326 in 2006.

In addition to paying the first dividend since the company was founded in 1975, Medical Mutual also plans to erase its $10 million in debt this year. And, over the next four years, it plans to refund $12 million in capital supplied by its policyholders in 2003 as part of a plan to shore up the company’s finances and stabilize its premium rates.

In recent years the N.C. Academy of Trial Lawyers, whose members include the personal-injury attorneys who sue doctors for malpractice, has bashed Medical Mutual for charging rates that the lawyers’ group labeled excessive.

Medical Mutual’s CEO Dale Jenkins said the dividend and capital refund to shareholders demonstrates “we are a very good steward of the resources the [doctors] have provided to us. We recognize every day that it is their money.”

Medical Mutual hasn’t sought a rate increase from state regulators since 2005. The latest positive financial results will allow the insurer to hold rates steady again this year.

Medical Mutual’s dividend will be in the form of a credit that physicians receive when they renew their policies, said Jenkins. The average credit will be about 5 percent of the annual premium for most of the 6,300 North Carolina physicians who are policyholders. Medical Mutual is a mutual insurance company that is owned by its policyholders.

“We’re always glad to see a company … able to give money back to its shareholders,” said N.C. Insurance Department spokeswoman Chrissy Pearson.

Jenkins said the number of medical malpractice lawsuits has fallen nationwide. In addition, Medical Mutual has taken steps aimed at limiting lawsuits. The company has established stringent underwriting guidelines in order to avoid insuring doctors it considers high-risk, Jenkins said. “We do not take all comers,” he said.

The company also sends out teams of nurses to assess doctors’ practices and recommend ways to minimize risks, he said.

Profit last year totaled $26.1 million, up from $24.3 million in 2006, Medical Mutual reported. Assets increased by $44.9 million, to $416.2 million.

_______________________________________

Chris Nichols
www.NicholsTrialLaw.com

Contrubutory Negligence is an issue that people don’t know or care about, until they face the problem themselves. Basically, in NC, even if you are hurt by someone else’s negligence, if the other person can prove you are just a little bit to blame for your injury, you are barred from any recovery. That’s right. Someone else is 99.9% to blame, and you are barred from recovery.

Columnist Scott Sexton has written a series of excellent articles on the subject and really puts a human face on this convoluted and political issue. I highly recommend reading these articles.

I’ll also add this to the mix. One of the problems with contributory negligence is that it is so often a bar to people seeking legal representation. Lawyers who represent injured people know that they could spend years working on case and lose everything at trial simply because a jury felt the Plaintiff may have played some very small part in causing the accident.

Here are some the the previous articles by Sexton:

Contibutory Negligence: it’s “an insurance company’s dream “

“Never mind that Joshua was 7 years old and was within 3 feet of the curb, or that Logan was drunk and driving on the wrong side of the road. “By way of affirmative defense, Defendant Logan pleads the contributory negligence of the decedent Plaintiff Joshua Franklin Palomares-Beckles,” wrote Rodney Guthrie, Logan’s attorney. If a jury in North Carolina decides that you are even a tiny bit at fault in this sort of case, you are entitled to nothing under state law, under a concept called contributory negligence. “In general, I’d say contributory negligence is an insurance company’s dream,” said Walter Holton Jr., the attorney who filed the lawsuit on behalf of Beckles-Palomares. “

Wreck victim faces being victimized by outdated law

“After an automobile accident in New Hanover County involving his daughter, Ashley, a student at the University of North Carolina at Wilmington, Norris has become something of an expert on a legal concept known as “contributory negligence,” an outdated and completely unfair area of insurance law used only here and in three other states. That leaves option C. “Our insurance company is also using the contributory-negligence law claim that Ashley is limited in what we can recover,” Norris said.

‘There is no lobby for the little people’ in this state

“Just four states – North Carolina, Virginia, Alabama and Maryland – still hang on to the concept of contributory negligence, a relic from English Common Law. “

Don’t believe hype that law would increase insurance rates

By Scott Sexton

JOURNAL COLUMNIST

Scott Sexton
Email
Bio

On its face, insurance law – specifically a legal concept called “contributory negligence” – is something that only a serious policy nerd could love.

That is, unless (or until) you or someone you know gets hosed by that law. Then it’s not so boring.

Contributory negligence works like this: If you’re in an accident and deemed to be just 1 percent at fault, you’re not legally entitled to one red cent to cover your damages from the idiot (or his or her insurance company) who was 99 percent to blame.

Three recent columns explored some of the more outrageous abuses of this law. Possibly the worst was the insurance-company attorney who argued that a 27-year-old man killed by a hit-and-run driver in October 2003 while changing a flat tire in Orange County was partly responsible for his own death.

It’s a shameless, outdated blame-the-victim strategy. It also seems like an easy law to change.

Yet objections remain. The state, for example, could switch to a “comparative-negligence” system. If you’re 90 percent at fault, you (or your insurance company) pay 90 percent of the damages.

“Comparative negligence is a nightmare to apply. Few people agree on the percent fault they are assessed, it increases lawsuits, is a cash cow for lawyers, and raises everyone’s insurance rates,” wrote one reader who works in the insurance industry. “If you haven’t noticed, N.C. enjoys some of the lowest auto-insurance rates in the country.”

Good point. And it’s one worth exploring.

Low-rate state

North Carolina does indeed enjoy consumer-friendly auto-insurance rates – the sixth lowest in the country, according to the N.C. Department of Insurance.

That’s not, however, because of any sense of fair play by insurance companies nor because contributory negligence keeps costs down.

The credit goes to a man who next to nobody has heard of, state Insurance Commissioner Jim Long. He is basically the final word on insurance rates in North Carolina.

Every Feb. 1, the N.C. Rate Bureau – an umbrella organization representing insurance companies – files a rate request. The bureau then makes a rate recommendation. Actuaries and attorneys with the Department of Insurance negotiate any changes with the rate bureau. If there’s no agreement, then Long decides.

“It’s a pretty long and pretty dull process unless you are an actuary,” said Chrissy Pearson, a spokeswoman for the Department of Insurance.

Given that background, I figured that Long’s thoughts on the merits of contributory negligence versus comparative merits would be worth hearing.

You can read the rest of the article by going to the Winston-Salem Journal.

-Chris Nichols
www.NicholsTrialLaw.com

So, if you are looking for a Raleigh personal injury attorney, you have found one. My law firm, Nichols Law Firm, never pays anyone for endorsements. We provide personalized service to clients, and are available to meet with you during your hours, at your home if you need us too. There is never a fee for a consultation.

_______________

Chris Nichols
www.NicholsTrialLaw.com

Herb Denenberg writes for The Bulletin. Denenberg notes Allstate’s recent guilty plea to six federal indictments and discusses several anti-consumer practices of Allstate, including complaints by CFA, the Consumer Federation of America (http://www.consumerfed.org/). Part of his article quotes the CFA report,

“The Allstate Corporation has been at the forefront of the insurance industry in unjustifiably raising home and automobile insurance rates relative to the amount paid out in claims, in using questionable practices to settle claims and in attempting to shift costs to taxpayers.”

EXCESSIVE RATES AND PROFITS BUT ANEMIC PAYOUTS TO POLICYHOLDERS. The report notes that Allstate paid out only 59 percent of the premium dollar on claims to policyholders from 1997 to 2006. The industry average is 65 percent. In other words, CFA argues Allstate should have cut its premiums or perhaps paid out more in claims. But in CFA’s view, Allstate is now charging too much for the benefits delivered to its policyholders.

HIGH CONSUMER COMPLAINTS. The complaints filed against Allstate, many relating to claims practices, are more numerous than almost all of its major competitors. Of 13 major auto insurers, Allstate had the second highest complaint ratio in two recent years. This is based on data collected by the National Association of Insurance Commissioners.

QUESTIONABLE CLAIMS SETTLEMENT PRACTICES. CFA says Allstate has adopted an automated claims settlement procedure designed to cut claims payments to policyholders, without regard to the validity of the claim and without an examination of the claim. As a result, CFA says it can document a systematic underpayment of claims based on aggregate data. The data show that Allstate reduced its payouts by about 20 percent relative to the industry for the year 1996 through 2006.

You can read the entire report at The Denenberg Report

Chris Nichols
www.NicholsTrialLaw.com

Why? Well, the insurance industry has effectively “gagged” anyone from telling the jurors why the case is going to trial. Typically, the reason for that is that the insurance company who pulls the strings on the defendant, WANTS the case to go to trial, because they know that for every case that goes to trial, 99 just give up, and the insurance company gets to pay less than what is “fair and just” as the rules require.

Here are some of the “hidden” rules and insurance practices that you only learn about after you’ve been hurt by someone else’s negligence.

You Can Not Mention the Insurance Company at Trial

Under no circumstances can a Plaintiff mention the word “Insurance” in trial, even though the person who is being sued has insurance. You cannot mention Insurance, nor can your witnesses, including the doctors, police or anyone else who may testify for you. If you do, the judge will grant a “mistrial” and we will have to try the case over again.

NC Rule of Evidence: Rule 411. Liability insurance

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Insurance is available in at least 99% of all auto accident cases that go to trial. But, the insurance industry has lobbied the legislature so diligently that it has created a set of court rules that absolutely prohibits the lawyers representing injured people from telling the jury the truth that the little old lady in the defendant’s chair has had no choice in whether she is sitting there or not. She cannot settle the case even if she believes you deserve everything you are asking for.

The insurance company is completely in control of how much to offer the injured person, whether to settle the claim or not, and what they should contest in the lawsuit. So, even if the little old lady sitting in the defendant’s chair wanted to settle the lawsuit for the same amount as what the injured person is requesting, the insurance company won’t offer the money.

In North Carolina, the Plaintiff has virtually no right to sue an insurance company for improperly denying a claim or delaying the payment of what is due. Again, effective political contributions, and legal maneuvering by insurers have resulted in these rules.

Its cheaper to deny the claim than settle.

Believe it or not, insurance companies have saved Billions of dollars since the mid 1990s, by improperly denying claims, and otherwise forcing litigation by paying far below the jury verdict average to settle claims. Frivolous defenses to legitimate claims have resulted in an increase in litigation, against people insured by these companies. This is part of a deliberate claim handling program implemented by McKinsey & Company, the same consulting firm that set up Enron’s business model, at many of the nation’s largest insurance companies. See “Record Insurance Profits” Article

But, in jury selection, jurors often mention that if the injuries are real, the case should have settled with the insurer. That is exactly what the insurance company is hoping for. It doesn’t matter if they offered $0.50 on a claim worth $500,000. The jury will never know, because the lawyers are prohibited from ever mention the settlement negotiations during the trial.

McKinsey & Company counted on this when they told Allstate Insurance in the mid 1990’s to quit treating people with “Good Hands” and instead treat them with “Boxing Gloves.” When Allstate forced more litigation and posted record profits, the rest of the insurance industry followed their lead. It is now standard operating procedure in the insurance industry to spend multiple times what a reasonable settlement would be to fight the claim, simply to prove to injured people and their lawyers that filing a claim for injuries is more trouble than it is worth. Read a Transcript of Anderson Cooper’s Interview with one of Allstate’s Victims

That is because the end result is that most lawyers will not take the cases, and people will not file the claims themselves. These improper denials have led to a huge spike in bankruptcies in the United States, the leading cause of which is an inability to pay for medical bills. So, when jurors turn injured people away, everyone but the person at fault, and their insurer pay for the damage. Instead, the jurors take the financial burden themselves through higher taxes to pay for the bankruptcy. For more, see the article entitled “In Tough Hands” in BusinessWeek.

Honestly, I have no idea if this is “good” or not, but it averages out to about 30 new visits per day, so I think in general, it’s been a good thing.

For those very few that subscribe to an RSS feed, sorry I’ve not been posting a whole lot lately. I had a month long trial in Charlotte, back in March, and that kept me pretty busy for the two months before, and the two months after.

I’ll be posting some new lien resources in the next few weeks, and I’m working on a neat little software package that might just help the lawyers out there.

As always, send me your suggestions by email to nicholsatty@gmail.com, if you have them.

Chris Nichols
www.NicholsTrialLaw.com