In Pro Per, pending PI case in CA, two liens: former attorney & health ins. Settlement reached outside Court 4/2013. Signed a standard release form. Opp. Counsel email-confirmed:"settlement check has been requested from USAA". 1 week later, Opp. Counsel asked me to provide lien amounts for issuing separate checks to lienholders. I rejected it based on release terms I signed. Opp. Counsel asked me to sign a "Hold Harmless Agreement", emailed me:"Upon receipt of the signed agreement, will request check to be issued solely in your name". I did it but Opp. Counsel backed out, said USAA adjustor was still "not feeling comfortable" to issue me settlement check unless lienholders agree not to assert claims against USAA. Lien negotiation in process but had issues, may last long. What should I do?
1. With regard to the former attorney lien, I'm assuming that the attorney placed USAA on notice of the lien. If so, USAA can properly request that either the attorney's name be placed on the check or that a separate check be issued. One possible solution if you have not reached agreement with your former attorney is for USAA to issue a check for the amount claimed by the attorney made out to both you and your attorney and a separate check for the balance of the settlement funds in your name only.
2. With regard to the health insurance issue, insurance companies commonly claim that they are responsible for satisfying a "lien" on your settlement from a health insurance company. In fact, the insurance company does not have a "lien" that is enforceable against the third-party insurance company. Rather, it has a contractual right of reimbursement that is enforceable against you, the insured and injured party. There is no statutory vehicle to enforcement of a "lien" against USAA, only statutory limitations on how much the insurance company can get for their claim for reimbursement. (See Civil Code §3040.) You can point out that there is no statutory "lien" like that provided for by a hospital under Civil Code §3045.1. The question of reimbursement is between you and your health insurance company and USAA has no right to not pay you pursuant to the settlement agreement. You can tell opposing counsel that you have fulfilled your obligations under the settlement agreement but that not paying, USAA has breached its obligation. You intend to sue USAA directly for breach of the settlement agreement if you do not receive the check made payable to you only.
USAA has a right to issue the check with your prior lawyers name on the check if he asserted a lien on the case. The medical insurance reimbursement claim is a different issue. It depends if it is a statutory or contractual claim for reimbursement. If contractual, a hold harmless agreement should be sufficient. If statutory, they have a right to put the name of the insurance company of the draft.
I agree with Mr. Kuhn. The solution, if USAA will agree, is simply for USAA to issue a check now for the difference between the agreed settlement amount and the amount of the liens; holding the amount of the liens back until they are released or satisfied.
The fact you are in pro per complicates the issue. If USAA will not agree to the above, perhaps your prior attorney will agree to deposit the settlement draft into his trust account and disburse uncontested funds to you now, holding the contested funds in trust pending resolution of the lien issues. Good luck.
I respectfully disagree with my colleagues to some extent. I haven't seen the documents you signed, so that can affect the answer. If the release papers say nothing about them being able to name others on the check, you may have a right to sue them for breach of contract, for refusing to cut the check. It is generally the practice that a former atty who has notified the carrier of the lien, to be named on the settlement check. Normally the successor atty will get the prior atty to sign the check either because the lien has been worked out, or the successor atty agrees to hold the gross lien claim in trust until the matter is resolved. Since you have no trust acct and don't risk loss of your license for breaching a trust agreement like that, your prior atty may not be willing to sign off that way.
The health insurance company may not have any direct enforceable claims against USAA, and you presumably gave an indemnity agreement. I think they would be hard pressed to legally withhold payment of the settlement if the release doesn't give them the right to name the lien claimant. I am starting to see releases that include language giving the ins co the power to name the lien claimants. I recently argued with a carrier and got them to delete the language.
If you were an atty you could also threaten to rescind the settlement and if the case hasn't been dismissed yet, proceed with the litigation.
You could ask them to hold back the full amount of the lien claims while the liens are negotiated and give you the balance of the settlement monies.
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Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.
USAA has a right to be concerned about the liens. Former counsel's name must be on the check per caselaw in CA or if the lien amount is a sum certain, separate checks can be issued. Health insurance liens are enforceable against you so you need to discuss with your carrier how they want to handle their liens and the amount if the liens total up to most or all of your settlement.
Ironically, this situation is showing you what personal injury attorneys have to frequently go through. They do the work to effect a settlement only to have lien obstacles either real or imagined by the insurance company which hold up receipt of the settlement proceeds. It may then take an inordinate amount of work and way too much time to resolve. It is frustrating for the client but equally or more frustrating for the attorney who must resolve the issue to everyone's satisfaction.
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