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Health insurance subrogation after auto accident. How long do they have to come after a settlement? Should I worry?

Ft Mitchell, KY |

I was involved in a single car accident in Feb. 2009. My father was driving and lost control on a bad road. We went off the road, and in the impact my father was killed, my mother horribly injured. I was in the hospital for two months, the a month of home care and PT.
This happened in Texas, and I live in Kentucky. My employer provided health carrier paid most of my medical bills ($162,000 pd by carrier) months later I settled with my fathers insurance and my auto insurance for the "value" of the damages/suffering. Before write offs etc... the value was $280,000. I received $100,000 from both auto insures, less co pays, deductibles, non covered medical bills.
How long do they have to subrogate? If my company funded the plan who would subrogate, my employer or the health insurance? Thanks

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Attorney answers 1


I just sat through six hours of continuing education on this subject. The bottom line is that it is a real can of worms.

If it is a company funded plan and the company is private as opposed to a government entity or a church, then it is an ERISA plan. The ERISA carrier would file for subrogation rather than the employer, assuming we are only talking about medical bills here.

The plan or plan summary may limit the length of time they have to file, but if it doesn't (and I doubt it does) then Kentucky's statute to file for satisfaction of a written contract (i.e. the plan) is fifteen years. KRS 413.090. This is ARGUABLY the statute for the plan to file for subrogation against you, but keep in mind that the law is in a state of flux following Sereboff v. Mid Atlantic Medical Services, Inc., 126 S.Ct. 1869 (2006). Because of this, the statute of limitations may change.

If the plan does file for subrogation against you, you absolutely need an attorney well versed in this type of law. The slightest change in plan language can make the plan 100% enforceable or not enforceable at all. And, unfortunately, they are allowed to take your entire settlement from you if the plan language allows it.

There are some cases on the books that give a pretty wide latitude toward insurance companies suing attorneys in connection to ERISA subrogation claims, so I'm going to do something I don't normally bother with and put in writing that we don't have an attorney-client relationship and that you shouldn't rely on anything I've typed as a statement of law. That having been said, if you do get contacted by the carrier regarding subrogation, I'd be happy to meet with you to discuss actual representation. I have an office in Florence.

I'm sorry to hear about your parents and your injuries. I hope the insurance carrier doesn't compound the issue by dragging you through a whole new lawsuit. Good luck.

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