Every person who has been injured do to the negligence or intentional acts of another will be faced with the question of are all or a portion of my settlement monies recoverable by my medical insurance company. Generally, unless you have been made whole, received a 100% recovery for your damages, under Georgia law you are entitled to keep monies from your insurance company that paid your medical bills.
The big exception to the made whole doctrine is if there is an ERISA subrogation lien. What is an ERISA subrogation lien? Health plans can and generally do establish a right to reimbursement for money paid for injuries or disabilities that arise from the conduct or actions of a third party. A health care plan is where a large employer is self insured, for example Verizon, Lowe’s etc. For example, if you are injured and your employer’s healthcare plan pays out $25,000 for injures caused by an at fault driver. Because the healthcare plan, your employer, paid out the funds on your behalf they are trying to recover their share of your pie, in other words they are entitled to “subrogation”.
The first step to deciding what is owed is to determine the total paid out. Next it is to look at the plans provisions, i.e. language stating what your employer’s health care plan is entitled to. For example if it does not say it applies regardless of if you have been made whole than there is a good chance you can keep more of your settlement. If the plan does not specify whether it is to share in costs to recover fee, i.e. your a personal injury attorney’s legal fee, there is a good chance the subrogation lien can be reduced.
In the state of Georgia subrogation liens from health care plans are an evolving area of law. You and your lawyer should work together to retain the largest share possible for you to “take home”.
