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

As a North Carolina Bad Faith Insurance lawyer, I deal with cases where homeowners insurance or commercial insurance wrongfully adjusts or wrongfully handles storm claims. These claims typically include refusing to pay for storm damage, refusing to properly replace a damaged roof, excluding flood damage, or simply low balling repair estimates.

So what can you do right now before the storm hits?

1) Make sure you have a copy of your insurance policy and declarations page. Read through what is covered. Know your coverage when you report your loss.

2) Prepare your home and business. You have a duty to mitigate damages when you can do that safely. Preposition tarps and repair equipment in a safe place so you can immediately plug holes and leaks. Have some buckets ready to catch water from leaks.

3) Take video of your home and business inventory. Preserve copies of important records before the storm hits. Take your phone and walk around your home or business and record items of value. Narrate the video and explain what the item is. For businesses, make sure you know and document exactly what is in inventory. Keep these papers with you when you evacuate.

Did you know that you can hire a lawyer to negotiate losses with your insurance company? There are non-lawyers who act as “public adjusters” and charge you a percentage of what you recover. But most public adjusters are no lawyers, so that can not advise you on the legal meaning of your insurance contract, or whether the behavior of the insurance company is in violation of good faith requirements for insurance companies. Furthermore, if the insurance company won’t do the right thing, only a lawyer can file a law suit to enforce your rights under your insurance contract. Many law firms charge exactly the same as non-lawyer public adjusters to negotiate claims before litigation begins.

Nichols Law Firm has experience handling storm losses and works with experienced engineers, architects, roofers, and general contractors to make sure you get the fair and full value for your loss.

On a personal note, I grew up in Hurricane country. I lost my home in 2004 to a huge tree when a micro-burst toppled a 100 ft pine tree on my house during Hurricane Isobel, right here in North Carolina. I, my wife, and my 2 year old were in the home when it happened- thankfully no one got hurt. I know exactly what it is like to be displaced from your home and have your insurance company haggle with you over everything. It’s very personal to me.

So be prepared for the worst, but hope for the best!

Chris Nichols
Nichols Law Firm
www.NicholsTrialLaw.com

The problem is that it is hard to find the statute that allows the hearing. The reason for that is that due to some federal law changes, which were eventually reversed, North Carolina law changed, but then the new law was rendered inoperable by the federal law changing back. Sounds complicated, and it is, but this post explains all of that.

The practical issue is this: if you google “NC Medicaid Lien Statute” you will find the 2017 “changed” statute in NC that is no longer good law. What you need is that statute language from before the 2017 changes.

That law is from House Bill 982 from 2013. Below is a link to the bill that was signed into law. This is, by way of the federal law changes and the magic of retroactive legal language, the real law on Medicaid liens now. This statute contains the procedure and deadlines you need to successfully challenge a Medicaid lien claim in North Carolina.

www.ncleg.net/Sessions/2013/Bills/House/PDF/H982v5.pdf

If you find yourself needing to challenge the lien claim, my office does this work for other lawyers on a case by case basis. So give me a call to discuss.

Chris Nichols
www.NicholsTrialLaw.com

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

The Governor signed the new bill incorporating the holding of Wos on July 18, 2013. The bill is effective immediately. You can view House Bill 982, in final mark-up version here: House Bill 982 

Here are the things we KEPT in the old § 108A-57. Subrogation rights; withholding of information a misdemeanor:

• Medicaid is still limited to a maximum of 100% of the lien OR One Third (1/3) of the gross settlement.
• Medicaid still prorates within their 1/3 with unpaid medical providers asserting liens.
• Payment by the lawyer of the 100% or 1/3 of the gross settlement is full and final payment of Medicaid’s lien (but medical lien holders paid pro-rata still get are owed their balances pursuant to NCGS 44-49 and 50. 

Here are the NEW provisions that reflect the Supreme Court’s determination that our previous Medicaid statute was in conflict with Federal law:

• Medicaid recipients can challenge the 1/3 or 100% lien by filing a Petition with a court of competant jurisdiction for “a determination of the portion of the beneficiary’s gross recovery that represents compensation for the Medicaid claim.”
• TIMING OF PETITION: Those petitions must be filed within 30 days of all parties signing a settlement agreement OR court approval of the settlement OR a judgment being issued.
• The Court will conduct an evidentiary hearing and may consider any factors it deems just and reasonable in determining the allocation of the settlement.
• The burden of proof is on the petitioner to prove by “clear and convincing evidence” that Medicaid is demanding too large a portion of the settlement.

One other excellent part of the new statute says Medicaid can compromise the liens at any time:

(a3) Notwithstanding the presumption arising pursuant to subsection (a1) of this section, the medical assistance beneficiary and the Department may reach an agreement on the portion of the recovery that represents compensation for the Medicaid claim. 

In the past, Medicaid took the position they could not negotiate their lien with recipients. This new portion allows for that negotiation to occur at any time, even before a petition is filed.

Chris Nichols
www.NicholsTrialLaw.com

The oral argument can be heard here: http://coop.ca4.uscourts.gov/OAarchive/mp3/10-1865-20111026.mp3#

Chris Nichols
www.NicholsTrialLaw.com

At any rate, the 3 minute video below came through my email from a friend and I dared to click on it. It’s a little cheesy, potentially apocryphal, and it ends with an advertisement for what may even be a pseudo-religious employee training service. And yet, I’m reposting it even though it violates many of my cardinal rules for reposting. So why? Why would I re-post this?

First if all, even trial hardened lawyers need to be a little mushy from time to time, right? 

But more importantly, I think this video reminds us about how to effectively try a case and prepare witnesses. In the story, Johnny the Bagger manges to break through the mundane world of grocery shopping by connecting with his customers on an emotional level with a simple but genuine gesture.

How does this apply to jury trials? First off, most jurors come into the courtroom with a deep set of unrealistic expectations about trials and often a mindset that is “anti-plaintiff.” After decades of insurance company propaganda, Jurors often start out by thinking they can not trust the plaintiff or their lawyer because they “want something.” The Plaintiff’s lawyer has a monumental task of overcoming these perceptions while also juggling a long “to do” list of minimum evidence requirements.

In the pressure of trial, making sure we cross off our “to do” list, we often forget that we MUST connect on some visceral level with our jurors. Our clients can not simply clinically spout off a list of symptoms and economic losses. It is our job to find a subject that breaks through the perceptions and connects the jurors and the plaintiff on an emotional level.

I find that when I prep even the most stoic witness, there is usually one subject or another that can get them emotionally stirred up. I wish I could say it was always the same subject, but it never seems to be. Often it is how the Plaintiff perceives the emotional impact of the injury on the family. But that “a-ha” testimony never seems to come in the abstract. It only comes in story telling. It happens when I say, “Look, I hear you when you say this injury has impacted your family, but tell me one story, give me one example of how you figured that out.”

Once I hear that story, the story that makes my client get misty eyed, I never ask about it again, until trial. I don’t tell my client I am going to ask about it. I want my client to be raw for a moment, I want them to be emotional, I even want them to be (emotionally) messy and uncomfortable.

I want them to be real.

The video I watched this morning reminded me that being real is so important in what we do. How do you “stay real”? When do you let your guard down? As lawyers, we have so many roles to fulfill in trial that it is very easy to become mechanistic. What gets you out of that non-emotional role and shows the jury that this is not just another case for you, but a real person with real injuries?

If you can’t answer the question easily, watch this video, see if it makes you feel something, and then take a moment to figure out how you can translate that feeling.

Chris Nichols
www.NicholsTrialLaw.com

QUESTION: Is Medicaid’s lien capped at one third of liability proceeds received or half of what is left over after attorney’s fees? In other words, if I am pro-rating a Medicaid lien with 44-49 liens and my fee is 25%, are they still sharing a third or are they sharing 37.5%?

ANSWER: Medicaid gets no more than 1/3 of the total settlement. Your attorney fees are irrelevant to Medicaid’s share. The most Medicaid can get is 1/3 of the settlement, even if you charge only 1 dollar as a fee.
 
Medicaid will prorate with NCGS 44-49/50 liens within their 1/3 share. But remember that paying the parorata share of the 44-49/50 liens does not extinguish the balance of the medical bill. The client still owes the balance after the prorata share unless you negotiate a “final payment” compromise with the mediacl provider. 44-49/50 simply act as as a way to get the lawyer out of the middle and get the provider some money before they have to turn to a collection action to get it.
 
The 1/3 (or Medicaid’s portion thereof) DOES take care of Medicaid, in full.

_________________________

Chris Nichols
www.NicholsTrialLAw.com

So as part of the political debate, Obama is talking about changing health insurance, but he is also talking about medical malpractice reform. Some of my fellow trial lawyers are getting stirred up because we don’t think that extending coverage of health care ought to also limit an injured person’s access to justice.

Here are some links which discuss Obama’s comments in the last few days:

Obama Talks Up Liability Reform
Politico
http://www.politico.com/news/stories/0609/23783.html
 
In Pitch to AMA, Obama Paints Mixed Picture
Washington Post
http://www.washingtonpost.com/wp-dyn/content/article/2009/06/15/AR2009061501744.html
 
Cost Concerns as Obama Pushes Health Issue
New York Times
http://www.nytimes.com/2009/06/16/health/policy/16obama.html?hpw
 
Obama Calls Cost of Healthcare a Threat to Economy
Chicago Tribune/LA Times
http://www.latimes.com/news/nationworld/washingtondc/la-na-obama-ama16-2009jun16,0,1354461.story
 
I tend to agree with the gist of the Politico article: Obama has to keep all options on the table and speak in terms that ever player in the debate feels are near and dear to their interests.

I think the debate will be rational, and because of that I think that the data which show that very little of the overall cost of health care has anything to do with malpractice lawsuits will not be ignored. There are things that can be done to decrease the cost of lawsuits. Call it reform or not, that’s up to you.

I commonly request that each side to a malpractice suit be limited in the number of expert witnesses who can be used on a certain subject. Almost universally the lawyers for the Doctors will not voluntarily limit the number of expert witnesses. This increases the costs to defend these suits. There is one liability reform I’m fine with implementing.

Chris Nichols

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

Arbitration is a good thing when it is at the option of the injured person.

One issue that is constantly debated on arbitration panels is the issue of “Prejugment” Interest on the Arbitration Award. A new case from the North Carolina Court of Appeals clarifies this often hotly debated subject. 

The case is Hamby v. Williams, NO. COA08-662 (May 2009) which supports the leading case on the issue Sprake v. Leche, 188 N.C. App. 322, 658 S.E.2d 490 (2008)

In Hamby, the arbitration panel was asked to award interest on the award but deferred that issue to the Superior Court “for further review”. The plaintiff presented evidence of the date of filing of the complaint. The Superior Court denied Plaintiff’s motion for interest and confirmed the arbitration award. In Hamby, the court first confirms that Interest is available under the standard insurance policy. 

[Insurance carriers contend that] the UIM/UM policy “does not specify anywhere that a party is entitled to prejudgment interest on an arbitration or jury award.” This assertion is incorrect. The applicable provision of the policy provides that “[UIM carrier] will pay all sums the ‘insured’ is legally entitledto recover as compensatory damages . . . .” In Sprake v. Leche, 188 N.C. App. 322, 658 S.E.2d 490 (2008), this Court held that prejudgment interest is part of compensatory damages for which an UIM carrier is liable. Id. at 325, 658 S.E.2d at 492 (citingBaxley v. Nationwide Mutual Ins. Co., 334 N.C. 1, 11, 430 S.E.2d 895, 901 (1993) and Austin v. Midgett, 159 N.C. App. 416, 419, 583 S.E.2d 405, 409 (2003)). Since the policy specifically provides for payment of “compensatory damages” these cases control. The arbitration provision provides that if the parties disagree on the amount of damages, then the matter may be arbitrated. The arbitration provision in no manner limits the scope of “compensatory damages” and the above-referenced provision of the policy controls.

Then the court goes on to establish HOW a Plaintiff can get interest awarded.

In the instant case, the parties consented to arbitrate plaintiff’s UIM claim “in accordance with the terms of the policy of insurance[.]” The parties stipulated that the issue to be determined was the amount of plaintiff’s “damages resulting from the auto accident of May 22, 2003[.]” The terms of the policy provided for “compensatory damages,” which included prejudgment interest. Id. at 325, 658 S.E.2d at 492. We thus hold the arbitration agreement did encompass prejudgment interest. Since the arbitration agreement encompassed prejudgment interest, and this issue was deferred to the trial court for resolution, Palmer, Eisinger, and Blantonare not applicable, and an award of prejudgment interest would not constitute a modification of the arbitration award. N.C. Gen. Stat. § 24-5(b) (2007) provides that: “[i]n an action other than contract, any portion of a money judgment designated by the fact finder as compensatory damages bears interest from the date the action is commenced until the judgment is satisfied.” We hold this provision to be mandatory and not discretionary on the part of the trial court, and that the trial court erred in not awarding prejudgment interest to plaintiff. (emphasis added) The portion of the trial court’s order denying prejudgment interest to plaintiff is reversed and this matter is remanded for entry of judgment awarding plaintiff prejudgment interest.

So what does this mean? How do you get interest?

1. Have an arbitration agreement that includes, at least, the following:

(A) The “issue to be determined is the amount of plaintiff’s compensatory damages resulting from the auto accident of ……”

(B) The arbitration is to proceed ““in accordance with the terms of the policy of insurance”.

2. You MUST ADDRESS and ASK for prejudgment interest at the time of the arbitration. 

3. If the panel does not address the issue of interest in the award, you will not get interest from a Superior Court Judge even if you attempt to get it by having the award entered as a judgment. See Blanton v. Isenhower, ___ N.C. App. ___, ___ S.E.2d ___ (April 7, 2009) (No. 08-864) which cites the original “killer” of interest awards, Palmer v. Duke Power Co., 129 N.C. App. 488, 499 S.E.2d 801 (1998) (sorry no link, but basically the Court said that if the arbitrators did not address something in an Award, a Court can not modify that award unless it is simply a mathematical error.)

My last bit of advice is to advise your opposing counsel that you are seeking interest before the arbitration. Send a copy of the Hamby case. Get a copy of the policy and make sure that the language works for you. Prepare a “suggested” award for the panel which addresses the interest issue. Be prepared to hand up cases to the Panel confirming they have the power to award interest.

Chris Nichols
Nichols Law Firm

I’m starting this blog entry to serve as a clearing house for information for personal injury lawyers seeking information to inform their clients about any risks now associated with using a structure. I should also say that there may not be any significant risk, but at this point I can’t find any definitive source that has analyzed the risks and benefits of structures in the economic and insurance crisis we may be facing.

I’ll be updating this link as I find sources of information. If you have come here seeking information and have a helpful link, please post it in the comments section and we’ll add to the data base.

11:09 AM September 16, 2008

Update: 11:35 am

Looks like some of the folks who broker structures are starting to jump on the vacuum of information for lawyers in this situation. John Darer at 4Structures has written an article this morning on the subject. He also gave me a call to discuss this. LINK to STORY John says, in part:

First, the AIG core insurance business (life, health, annuities) is not what has caused the impairment. AIG is a leader in many lines of insurance worldwide.The company operates globally on multiple silo business model. The toxic assets are confined to a single business unit.

Insurers must set claims reserves and actuary certification of asset liability matching is required by New York and most other states.

At the time of this writing there has been no announcement of bankruptcy, but please note that Insurance regulators work to protect the interest of structured settlement annuitants. There is precedent. In re: Monarch Life bankruptcy creditors were not able to get at the structured settlement assets, even in the absence of secured creditor protections common in today’s structured settlements. Executive Life annuitants are still getting paid and that impairment happened in 1991.

So what this says to me is that the insurers are set up in such a way that if the bad debts begin to destroy certain aspects of the business, other sectors will still stand.

John also discussed Qualified Assignments and how they add a second lawyer of protection. You can find a list of Annuity Companies and where they do their Qualified Assignments here.

As i understand it, a qualified assignment and insurance agreement makes the client a secured creditor in the annuity contract. This would give priority in bankruptcy, I assume. (checking on that).

11:59 AM UPDATE

My friend Bryan Milner who is affiliated with Millennium Settlements has sent me an email and is working on an article for his website at the moment. I’ll update later when he is finished with his post.

He pointed out that all of his products sold in NC have the protection of the NC Life & Health Guarantee Association, which is essentially the equivalent of the FDIC for insurance in NC. From their website: 

The North Carolina Life & Health Insurance Guaranty Association is a statutory entity created in 1974 when the North Carolina legislature enacted the first version of the North Carolina Life & Health Insurance Guaranty Association Act (a link to the Act can be found in the Additional Info section). The guaranty association is comprised of all insurers licensed to sell life insurance, accident and health insurance, and annuities in the state of North Carolina. In the event that a member insurer is found to be insolvent and is ordered to be liquidated by a court, the Guaranty Association Act enables the guaranty association to provide protection (up to the limits spelled out in the Act) to North Carolina residents who are holders of life and health insurance policies and individual annuities with the insolvent insurer. It also provides coverage for certificate holders of direct group policies or contracts and for unallocated annuity contracts.

So what sort of coverage does the Guarantee Association have?

If your insurance company fails, the maximum amount of protection provided by the North Carolina guaranty association for each individual is $300,000 no matter how many policies you bought from your company. The maximum coverage for an unallocated annuity is $5,000,000 per contract owner.

And of course, the Guarantee Association only kicks in if the insurer is licensed in NC. How do you find out if they are?

How can I find out if my company is licensed in North Carolina?

Call the North Carolina Insurance Department at 800.546.5664. The department maintains complete and current records of all insurance companies licensed to do business in the state.

UPDATE 1:52 pm

CNN hasa pretty good Q&A on AIG and why it affects a lot of folks. It is certainly a “don’t panic” post, but seems to reflect the information posted above about how assets are held and also how Guarantee Associations can step in if the insurer fails.

CNN 5 Things you Need to Know About AIG

Q: I have insurance through AIG. How worried should I be about the problems at the company?

At least in the short term, you probably don’t need to be worried at all. The problems are with the AIG holding company, not the individual insurance company subsidiaries that you do business with, according to a source with New York State’s insurance regulator.

Even if AIG’s holding company is forced to file for bankruptcy court protection, there’s a good chance that the subsidiaries will continue to operate normally with no disruption in claims payments. That has happened in the case of other insurance holding companies bankruptcies in the past, such as Conseco

UPDATE Sept 17, 2008 1:30 pm

Well, looks like I bought myself some AIG. And so did you, and you and you. We all own AIG now since the Federal Government now owns 80% of AIG. They are calling it a “bridge loan” but every “bridge loan” I’ve ever heard of did not have the lender taking over the company. And it looks like “we” have replaced the CEO of AIG with the former CEO of Allstate. Yikes.

Anyhow, some updates on what to do with structured settlements. My friend and structure expert, Brian Milner, worked his fingers to the bone yesterday putting together some documents to address the AIG Issues. You can find them at Millenium AIG Q&A & Protection for AIG Customers

Bryan has included some really good infomation in there. I also sent him a Q & A late last night that I think my clients will be asking me. As soon as he gets all of it answered, I’ll post the response.

UPDATE Sept 18, 2008 10:00 am

Bryan has come through on the Q&A for me. This particular thread is getting pretty long, so I’m going to post it in a new thread which can be found at: Q & A for Lawyer’s Clients about Structured Settlements and the AIG Problem.

That said, where do Obama and McCain stand on Tort Reform? I’ve tried to present the information below from the most unbiased sources I can find.

John McCain on Tort Reform

I’ve included some links from traditionally conservative voices. The Club for Growth and an AMA related website. Most of the information is somewhat critical of McCain for not supporting tort reform “enough.” Because of the nature of the primaries, there is plenty of information about McCain and tort reform from conservative sources (most of which didn’t think he was tough enough on tort reform).

From: The Club For Growth:

Tort Reform

The American economy suffers from excessive litigation which increases the cost of doing business and slows economic growth. The Club for Growth supports major reforms to our tort system to restore a more just and less costly balance in tort litigation.

Senator McCain’s record on tort reform is generally positive. These votes include:

• Sponsored the Class Action Fairness Act of 2005 which sought to curb lawsuits by shifting suits from state to federal courts, by requiring judges to review all coupon settlements, and by limiting attorneys’ fees in non-cash settlements^[65]
• Voted for a bill that would bar lawsuits against manufacturers, distributors, dealers and importers of firearms^[66]
• Voted for a bill that would place caps on damage awards in medical malpractice suits against obstetricians and gynecologists^[67]
• Voted for a motion to proceed to a bill that would cap non-economic and punitive damages in medical malpractice suits^[68]

This generally positive record, however, is tarnished by Senator McCain’s sponsoring of and outspoken support for the Patients’ Bill of Rights,^[69] which encouraged an increase in the number of frivolous lawsuits filed against healthcare providers. He also voted against the Litigation Uniform Standards Act, which limited the conduct of securities class actions under state law.^[70]

And for what it is worth, here is a transcript from a Rush Limbaugh Radio Show where Rush refers to the above website in order to assess McCain’s willingness to implement tort reform. Rush seems to agree with the above- McCain has a good start but could do even better on tort reform.

If we assume that what a politician promises in one election they would support in another election, we can go back to 2000 when McCain was running against Bush in the Republican primary. McCain’s website then stated:

“John McCain has been a leading proponent of lawsuit reform at the federal level. He recently authored the Y2K law that will help limit potential frivolous lawsuits resulting from the Y2K computer problem while also protecting the rights of those truly injured to bring a legal action. The bill addresses the needs of businesses that may find themselves as both plaintiff and defendant, by providing incentives to fix Y2K problems, not rush to the courthouse.

“John McCain has and will continue to fight to reform our nation’s product liability laws. He supports reforms that would establish a time limit on liability for most products and cap damages on small businesses. He has also worked to provide liability relief to small businesses by sponsoring legislation that limits punitive damages and eliminates joint liability for non-economic damages for small businesses that employ less than 25 people.

“John McCain also supports small business relief from ‘Superfund’ liability. He believes the law imposes too severe a penalty on small businesses. He supports changing the regulations to limit the liability of small businesses to the amount of pollution they directly caused to a site, and no more.” From Freedom Works

Back to 2007. From a physician website, MedPage Today:

Arizona Sen. John McCain said tort reform is a top priority. He’s supported caps on awards and expressed some support for a loser-pays rule. “We cannot let the search for high-quality care be derailed by frivolous lawsuits and excessive damage awards. … Liability reforms should eliminate lawsuits for doctors [who] follow clinical guidelines and adhere to patient safety protocols.”

McCain laments increased costs stemming from defensive medicine. “In every other industry when technological advances are implemented, costs to the consumer decreases,” he told supporters in South Carolina. “This is not the case in health care. … I can’t tell you the number of tests that all of us in this room have taken just so that doctors won’t be sued for malpractice.”

And while this is not necessarily a “tort reform” issue, McCain supports changes to our health care system which would take most self-funded health insurance plans OUT of ERISA pre-emption.

The senator does suggest he would change current pre-emption provisions in the Employee Retirement Income Security Act, when he says he would “give states the flexibility to, and encourage them to experiment with: alternative forms of access; risk-adjusted payments per episode covered under Medicaid; use of private insurance in Medicaid; alternative insurance policies and insurance providers; and, different licensing schemes for medical providers.”

ERISA adjustment is also implied by his call to “build genuine national markets by permitting providers to practice nationwide” and his proposal to “allow individuals to purchase health insurance nationwide, across state lines, to maximize their choices.”Obviously, in North Carolina, taking self funded health plans out of ERISA would have a “pro-plaintiff” benefit because self-insured entities would be subject to NC’s anti-subrogation rule. Clearly, this is an unintended consequence for our state.

Finally, according to AllBusiness.com, McCain has publicly lamented increased costs stemming from so called defensive medicine, where doctors allegedly over-cautiously order multiple tests in the hopes of avoiding any mistakes or liability. “In every other industry when technological advances are implemented, costs to the consumer decreases,” he told supporters in South Carolina. “This is not the case in health care…. I can’t tell you the number of tests that all of us in this room have taken just so that doctors won’t be sued for malpractice.”

Barack Obama on Tort Reform

As a lawyer and constitutional law expert, Obama has spoken favorably of civil litigators at times, but has also been noted in the press to be somewhat more critical of “trial lawyers.” While campaigning for the Senate in Illinois years ago, he said, “Anyone who denies there’s a crisis with medical malpractice is probably a trial lawyer.” [Unsubstantiated info ahead] Furthermore, it has been noted that Obama voted in favor of caps on non-economic damages in medical malpractice cases when he served in the Illinois General Assembly. [NOTE: I pulled this quote from a business website doing a neutral review of the tort reform stances of the candidates. It was old (pre-nomination) and fairly balanced. Of course, there was no reference in the article. I’ve been questioned on this now, so I’m trying to verify the so-called votes. Frankly, I was suprised that Obama would vote for any type of cap given his Constitutional experience, so this could be my bad reporting compounding someone else’s bad reporting. Good thing I’m not a reporter!]

In 2005, Barack Obama voted for CAFA, the Class Action Fairness Act of 2005. Who voted against it? Hillary Clinton, Dick Durbin, Ted Kennedy, Pat Leahy, Joe Biden, Barbara Boxer and other progressive Democrats. The Class Action Fairness Act was strongly supported by business groups like the US Chamber of Commerce.

The ABA describes CAFA in this way:

In a nutshell, the Class Action Fairness Act has two principal parts. One set of provisions establishes new procedural and substantive standards applicable to class action settlements. Some of these merely duplicate (or add little to) existing practice under the Federal Rules of Civil Procedure, but others — such as new limitations on attorneys’ fees in coupon settlements and requirements that government officials be notified whenever a class action settles — are brand new.

In addition to the CAFA bill, Obama has taken a position on medical malpractice tort reform which focuses on improvements in patient care and lower error rates. In fact, Obama and Hillary Clinton co-authored an article in the May 25, 2006 issue of the New England Journal of Medicine, entitled “Making Patient Safety the Centerpiece of Medical Liability Reform.“

In conjunction with the publication of their article, Obama and Clinton introduced and co-sponsored the National Medical Error Disclosure and Compensation (MEDiC) Act of 2005, a bill that, in part, would have required hospitals to disclose errors to patients and would have also created a national patient safety database. The bill further proposed to create a Department of Health and Human Services program that would seek early compensation for patients and offer liability protections to doctors in exchange for their disclosure of errors and apologies. This legislation was never realized and died in 2006.

The Last Frontier: The Supreme Court of the United States

Other than the candidate platforms and positions, many would argue that the real “tort reform” is accomplished by appointing Judges who will take “tort reform” positions on legal cases. Justice John Paul Stevens (88 years old) and Justice Ruth Bader Ginsburg (74 years old), are both considered to be left leaning and potentially ready to retire in the next four years.

About the Supreme Court, Obama has said in a July 7, 2007 speech “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

McCain has said, “I tell you I will nominate only people who have a clear, complete adherence to the Constitution of the United States and do not legislate from the bench. That’s who I’ll nominate to the U.S. Supreme Court.”

This article will not attempt to futher address the issue of Supreme Court appointments, though obviously the candidates would presumably appoint Judges who agree with their general philosophy on the law. Whether that position is “pro-consumer” or “tort reform” will be for the reader to decide.

I’ll update this article as I find more information. Obviously, John McCain has a long voting record, so there can be much more analysis of his voting positions than of Obama. I may also try to take a look at the positions taken by Biden and Palin, although, again, Biden will have a much deeper record than Palin.

—-Chris Nichols

Nichols Law Firm

Not bad for a blog concentrating on one of the more boring topics in the world: liens and subrogation.

Here are the stats as of today:

Maybe I’ll set my summer intern loose on trying to make this Blog look slick and sophisticated…. probably not.

Chris Nichols

So when you make a settlement which will not cover “all” the bills, how do you handle this scenario? I see two ways to go about making the disbursement. I can’t say if one or the other is “right” as I don’t think the statutes clearly cover this.

It should go like this, hypothetically:

Scenario 1

Assume:

Med pay $2,000 (already paid to Chiro 1)

Settlement $10,000
Medicaid Lien: $5,000
Chiro 1: $1,000 (balance after med pay received of $2,000)
Chiro 2: $2,000 balance

So, now let’s apply the law and do the math:

$10,000 Settlement
-$3,333.33 Atty Fees
$6,666.66 Balance

1/3 of settlement is $3,333.33 for Medicaid purposes (Medicaid is limited to recovering 1/3 of settlement)

1/2 of Net is $3,333.33 for NCGS 44-49 lien purposes (Medical liens can only force the attorney to pay 1/2 of the Net settlement after attorney fees and it makes it easier when 1/2 of net and 1/3 are the same thing).

Medicaid shares pro-rata with unpaid medical providers within the 1/3.

$5,000 Medicaid
$1,000 Chiro 1
$2,000 chiro 2
$8,000 $3,333,3/$8,000 = 41.66% shares of the 1/3

Now we figure the prorata share for each lien holder using the percentage from above:

5,000 x 41.66% =$2,083.31
1,000 x 41.66% = $416.6
2,000 x 41.66% = 833.20

That’s how the 1/3 should be distributed BUT, since Medicaid is entitled to 100% of the medpay, they will get another $2,000 on top of the share above.

So:
$10,000 Settlement
-$3,333.33 Atty Fees
$6,666.66 Balance

-$2,083.31 Medicaid
-$416.6 Chiro 1
-833.20 Chiro 2
$3,333.50

-$2,000Medicaid Med pay
1,333.50 to Client

But there appears to be another way to do this. In the first scenario above we prorated Medicaid’s full lien, then paid Medicaid the $2,000 from the remainder of the settlement.

The second method would pay Medicaid the $2k medpay FIRST, then use the balance of the lien for proration purposes. That would give the other providers more money under pro-ration.

The second method would look like this:

Scenario 2

$10,000 Settlement
-$3,333.33 Atty Fees
$6,666.66 Balance

1/3 of settlement is $3,333.33 for Medicaid purposes

1/2 of Net is $3,333.33 for 44-49 lien purposes (makes it easier when 1/2 of net and 1/3 are the same thing)

Medicaid shares pro-rata with unpaid medical providers within the 1/3. (We’ve already taken out the $2k Medicaid will receive)

$3,000 Medicaid lien
$1,000 Chiro 1
$2,000 chiro 2
$6,000 $3,333.33/$6,000 = 55.55% shares of the 1/3

Now we figure the prorata share for each lien holder using the percentage from above:

3,000 x 55.55% = $1,666.50
1,000 x 55.55% = $555.55
2,000 x 55.55% = $1111.11

Since Medicaid is entitled to 100% of the medpay, they will get another $2,000 on top of the share above.

So:
$10,000 Settlement
-$3,333.33 Atty Fees
$6,666.66 Balance

-$1,666.50 Medicaid
-$555.55 Chiro 1
-$1111.11 Chiro 2
$3,333.50

-$2,000 Medicaid (Med pay)
1,333.50 to Client

Let’s compare scenarios now:

Scenario 1:

$2,083.31 (Medicaid prorated share) + $2,000 for med pay = 4,083.31 to Medicaid
$ 416.6 Chiro 1
$ 833.20 Chiro 2

Scenario 2:

$1,666.50 (Medicaid prorated share) + $2,000 for med pay = 3,666.50 to Medicaid
-$555.55 Chiro 1
-$1111.11 Chiro 2

So, technically, Scenario 2 is better for your clientin my mind because Medicaid is paid in full with $3,666.50 and there is more money available for the doctors (who are not paid in full but might be more likely to accept the higher % payment as payment in full).

I don’t know if there is a right or wrong to his one. I’m sure Medicaid would prefer to be paid more, and they may have a point since technically, the Medpay should have gone to them in the first place.

–Chris Nichols
www.NicholsTrialLaw.com

Allstate won’t produce records despite $25,000-a-day fine
By JOE LAMBE
The Kansas City Star

Allstate Insurance Co. lawyers made this clear Tuesday to a Jackson County judge: They will not produce key records for public view no matter how much he fines them.

And Judge Michael Manners has already fined them $25,000 a day since mid September — a total of $2.4 million and growing.

And last month the Missouri Supreme Court ordered the documents produced,

At issue are the so-called McKinsey documents, a kind of holy grail for plaintiff lawyers nationwide.

Plaintiff lawyers allege they show how Allstate set up a claims payment system in the 1990s that shortchanges clients while earning huge profits.

Allstate contends the 12,500 pages prepared by consultant McKinsey & Co. are trade secrets used to create company policies, methods and claims procedures.

Until this year, state high courts had agreed with the company. But last month the Missouri Supreme Court ruled that it must provide them in the case before Manners.

Allstate still refused. Tuesday’s hearing took place in part so Manners could consider whether to increase his daily fine.

The case stems from a car wreck seven years ago on Interstate 70. Allstate client Paul Aldridge of Hawaii ran into the back of a truck and severely injured the driver. He is suing Allstate for bad faith for refusing to pay the claim for years.

As for the documents, Ronald Getchey, a San Diego lawyer representing Allstate, told the judge: “We won’t produce them without a protective order (sealing them).”

He questioned whether the $25,000-a-day fine was legal and whether the judge’s order finding them in contempt was too vague.

Plaintiff lawyer Steve Garner of Springfield called those arguments “silliness.”

Getchey argued that the matter is uncertain and noted that the Missouri Supreme Court ruled that the company could return there if Garner tried to collect the $25,000-a-day fine, which would go to Aldridge.

Garner said he was more concerned about getting the documents and going to trial, but he may start collecting the fine for his client.

Getchey told the judge: “We have a principled difference we’re not able to resolve until somebody says what the law is.”

Manners countered: “I’ve already said that, but you just don’t agree.”

Then he set a July trial date, the first time Garner had available.

Getchey noted that was a long time at $25,000 a day.

“We shouldn’t get a $5 million fine because counsel is not available to try the case,” he said.

Manners conceded the point and said he may not increase the daily fine after all.

Where the right to intrastate travel is a “right of function,” the right to enter public parks is not encompassed by either the fundamental right of travel or the right to intrastate travel. We affirm the trial court order upholding the defendant-town’s ordinance, which prohibits registered sex offenders from knowingly entering any public park owned and operated by the town.

Standley v. Town of Woodfin

Click Here for the full text of the opinion.

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.

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Chris Nichols
www.NicholsTrialLaw.com