http://articles.moneycentral.msn.com/Insur...ash.aspx?page=1
After reading this article, I pray that I never ever have to go work at a Walmart.

Is that a rotten thing for Walmart to do or what? Previously, the woman had been working at a Walmart and after the settlement, Walmart went after the money to recoup the money that it's minimal Health coverage system spent on this woman's healthcare. It didn't occur to Walmart that this woman might actually need that $417,000 to provide her medical care for the rest of her life. If I were the husband, I'd go mad and hunt down the truck driver who drove the truck that day. Now, the woman has to rely on Social Security and Medicare.

So,
Does Walmart really have the right to go after the settlement money or should it all be used for the woman's future healthcare expenses?

Morally, this practice is reprehensible. Legally, however, they absolutely have that tight. As noted in the linked article, the provision for doing this is in the health-plan details.

Unfortunately, Walmart is not the only company that can and does do this. Nearly every health insurance policy has this kind of provision in it. It's just until lately, it's seldom been used.

Does Walmart really have the right to go after the settlement money or should it all be used for the woman's future healthcare expenses?

This is really a strange one, I've never heard of this sort of thing happening. I guess it does though and I'm really surprised that some smart trial attorney hasn't taken cases like this on. I think there are a number of arguments that could be made here to either stop this practice, or to jack up the jury awards in liability cases. For example, were I on the jury on this case and decided that $700,000 was an appropriate amount for the future care of this woman, then been told $470,00 of that would go back to Walmart for her previous care, I would have argued to add that in and awarded $1,170,000. There's just something inherently wrong with this practice. I paid a few thousand dollars last year for health insurance for me and my family, and we didn't even get past the deductible. Should I sue the insurance company for the money I spent that they never paid out? I've never made a claim on my car insurance, should I get that money back?


Yeah, yeah yeah, I know.... good luck with that.

Aquilla

Does Walmart really have the right to go after the settlement money or should it all be used for the woman's future healthcare expenses?

Yes, unfortunately, they do. It's a clause in the plan. Knowing this is out there, people with injury cases should take the fact that they will have to pay full price for their medical care into account when they sue. If they sue for the cost of medical care, loss of potential wages and things like that, I believe that the employers should only be reimbursed from funds for medical care.

It's really kind of screwed up. It's like saying that because you were in an accident, you don't have medical coverage if you hold someone accountable. The employer wouldn't be reimbursed if no one was at fault and you would only be required to pay for your deductible and premium. But if someone is at fault and you hold them accountable, you are required to pay for everything as if you didn't have insurance at all. That doesn't seem right. The person should be insured either way.

Does Walmart really have the right to go after the settlement money or should it all be used for the woman's future healthcare expenses?
I am in the middle of a much less serious, but similar suit. I was hit by a car while riding my bicycle in June. Fortunately, I was wearing helmet and did not get any head, neck or spinal injuries. We are still working out the details of the suit, and I have learned that it is important to list all medical costs, not just out of pocket. When the settlement gets hashed out, 1/3 of the money goes to the lawyers, medical expenses goes to the insurance company, what ever is left over will go to my family.

If one looks at it from the insurance company's perspective, they provided funding for the medical care for this person. I assume that in a case of this magnitude, the medical costs were at least $417,000. Since this woman was not at fault, neither is her insurance company responsible for the expenses. The settlement from the other party is to compensate for actual costs plus pain and suffering plus future costs plus future pain and suffering. The other party's insurance is responsible for all medical costs, and should compensate the victim's insurance company for those costs. It should also compensate the victim for her past losses as well as future losses.

My opinion is that the attorney that represented the woman in this case did not do a sufficient job. In a case such as this, one would expect a multi-million dollar settlement. When someone has permenant brain damage and will be disabled for the rest of her life, that puts a great amount of value on the case. The attorney should have done a much better job representing his or her client and taken all of this into account. I don't think Wal-Mart or the insurance policy is at fault, the attorney did a sub-par job. Fortunately, I feel that my attorney will get a fair settlement in my case, it doesn't appear that this family had an attorney that got all that the family deserved.

I'm sorry---what am I missing here? Why does Wal-Mart get the money? I can almost guarantee that they didn't spend over 400K on her premiums....wouldn't it be the INSURANCE COMPANY that would take the money? I read the article but I feel like I totally missed something.

Either way, though---even if it WAS the insurance company, I don't see how that can be legal. Yes, it's a clause in the contract; yes, the employee signed said contract. However, some contracts are illegal, for example, if I were to make a contract for being paid for sexual services. Prostitution is illegal, so the contract is void. (Extreme example, I know, but it's the only one I can think of right now). My point is that it just doesn't make sense---insurance itself is just one big gamble. It's a gamble on the insured's part by paying premiums knowing they might never actually utilize the insurance they're paying for; it's a gamble on the insurance company's part knowing that some people will get very sick/injured, and some will not. Oh, and the additional gamble of the insured person is that the company hopefully won't go under and declare bankruptcy---but if they do, and later the CEO is found to have a big stash o' cash, do you think the insured will receive any of that? HA!

Variable annuities are another form of insurance. The company is insuring that you will receive your premium back, along with a certain percentage of growth. You pay a small percentage of your premium each year to guarantee that growth. If the stock market tanks, but you were invested in gold or something and made a bunch of money----can they sue you to take that from you to cover their loss in guaranteeing you the percentage of growth? (This might be a dumb example---if so, I apologize ahead of time).

There oughta be a law, that's all I'm sayin'.

And I'm also not gonna shop at Wal-Mart anymore.



I apologize then for my above post. You make an excellent point, scubatim. It's like auto insurance---I was in a minor accident about 7 years ago, and the other guy's insurance had to pay MY insurance company, not pay me directly.

I still don't understand why Wal-Mart is suing though, instead of the insurance company.

It seems it was the “health Plan” – provider that recovered the money.


"Two years ago, the retail giant's health plan sued the Shanks for the $470,000 it had spent on her medical care. A federal judge ruled last year in Wal-Mart's favor, backed by an appeals-court decision in August."

I don't really think that the idea is morally abhorrid, but rather the settlement should've been structured to pay this plus the Shanks.

Basically, if Company X incurs $470K in damages, just like the Shanks, I see no reason for them to not attempt to recoup the loss. The issue then becomes that after re-payment, had they not even had legal fees, they would've only been left with $230K for the rest of her life. That's really the issue, isn't it?

Had the Shanks gotten $4M, after legal fees kept $3M, and Walmart then got $470K, they would've still had $2.53M in the bank. Where we went wrong was the settlement.

I only fault the insurance provider for going after them considering the circumstances. It's a PR nightmare and the wrong thing to do in this case. However- I don't see why the law is bad at all. Frankly, I think it should exist.

Some very good points have been raised here. And I feel dumb for not noticing that it was the healthcare provider who was taking the money, not Wal-Mart directly. That's what I get for posting first thing when I wake up. I'd hate for anyone to think I'm just another member of this "soundbyte nation", with a lack of critical thinking skills...

I think the people at fault are: the lawyers. Big surprise.

The applicable policy limit was $700K. The damages were clearly in excess of the policy limit. So one relevant matter otherwise not discussed in the article is the matter of the value of the entity that is being held liable here under the legal doctrine of respondeat superior. The related matter is how hard will it be to execute on any judgment and how much will any execution on the judgment cost. We also do not know what the actual subrogation provision provides. We also need to know the law in the jurisdiction on just what constitutes "receipt" of judgment/settlement proceeds.

But the article does mention that the one soul said that the generic plaintiff was once in the habit of "freezing out" the health care insurer. Indeed. We still do, whenever we can. And so when the relevant contractual/subrogation provision provides that the subrogation claim concerns damages received by the plaintiff that duplicate medical expenses and/or lost wages paid by the plaintiff's insurer, well, then we settle the case with the relevant release and settlement agreement providing that the release from liability is being granted to the named persons and her/his/its agents, etc., in exchange for the plaintiff's receipt of "X" dollars, as and for general damages only, and such sum is in no manner or way intended to compensate the plaintiff for any medical expense, lost wage, or any other item of special damage, and so no special damage[s] lien can attach. General damages are otherwise those damages that we have to make up a number for. Special damages are all those we know to a certainty, as in the hospital billed $640.32 for the MRI, the radiologist who read the film billed "$85.23" and the Plaintiff otherwise missed 4 days of work at 8 hours per day at $27.50 per hour.

But different story when the relevant contractual provision was written with souls like me in mind, and so the provision in that instance would provide that the right to subrogation exists with respect to any and all damages received by the plaintiff and no matter denominated general, special, and/or other. Then we're more or less stuck, except that we always argue that the insurer takes the same hit as the plaintiff, i.e., the plaintiff doesn't collect 100% as 33.33% goes to yours truly, and then there's the costs of litigation, etc. To the extent that the insurer opines that we were doing all this out of the goodness of hearts, the response is, no, we weren't, and for you to get dollar for dollar while the plaintiff bears the brunt of paying for my time is simply unconscionable and otherwise works an unjust enrichment.

Walmart and its insurer otherwise ain't all that. But the U.S. government, Medicare, and the courts of the United States of America are all that. Try dealing with them. And the joy for the scorned lawyers, well, federal law makes the lawyer personally liable re payment of the lien, i.e., if for some reason a recovery is obtained and the Medicare lien isn't resolved to Medicare's satisfaction, well, if the money is all gone the shortfall will be made up by the lawyer, or at least Medicare enjoys that option. I could say that I object to serving as the government's collection agent without my consent but such objection on my part can be expected to fall on deaf ears in the courts of the United States of America.

All might otherwise want to review the workers compensation law in her or his jurisdiction, since in mine one cannot settle or otherwise compromise one's tort claim against the responsible third-party without the work comp insurer's consent. Here, put this woman on the job at the time of injury and so she would need the work comp insurer's consent to compromise her claim against the responsible third-party. Lucky for us here in the land of Aloha the law provides that the matter of satisfaction of the work comp lien must take into account the matter of who is paying the attorney's fees, and presumably on the rather obvious basis that if my client simply assigned her or his claim to the subrogating insurer, well, the subrogating insurer would then have to hire and pay for its own lawyer to prosecute the claim against the responsible third-party and so no free rides.

Almost forgot, re the attorney's liability for liens, not in the land of Aloha but Texas instead (for flavor):

http://www.tlie.org/riskmgmt/news/2000isu1.htm

Now note that the fellow is a tad bit too generous in his description concerning Medicare's willingness to compromise its "super lien" [and with the lien being "super" why should some be generous with its compromise?].

Lastly, I otherwise do not know whether the author of the piece knows how this all works. In other words, did the plaintiff's attorney ever speak with the insurer re its lien, or did he simply assume that arranging for the money to be put into trust for purposes of paying for future care and needs meant that it would not count as being received on settlement. Haven't read the actual court order disposing of this matter, but I will assume that the court did find that receipt of the money into the trust was receipt by plaintiff [such would seem to be a necessary finding]. To avoid any finding that the spouse is holding the money in trust for the other, we will otherwise never ever speak of the disposition of the settlement proceeds other than with respect to payment of liens, if any, my fee, my costs, and the excise tax on my fee that I am almost entirely passing on to the client as such the law allows. Understood but never communicated, that's our motto. I would have otherwise researched the matter of the most money allocated for loss of corsortium damages that was ever upheld on challenge, and in relation to the damages provided to the human suffering the physical injury, i.e., we want to allocate as much of this settlement to the husband as we can, as no lien attaches to his recovery, and so I find my best case and then argue that in this case here, judge, the court ruled that a settlement for loss of consortium and other damages in roughly the same amount and proportion as here was legitimate and not fraudulent [as the insurer can always claim that the release and settlement agreement is fraudulent to the extent that no one can reasonably say that Mr. or Mrs. X are entitled to "X" dollars in satisfaction of her/his claims for damages for loss of consortium, etc., and so all we were doing was engaging in a bad faith settlement in order to avoid a valid lien].

Now, can you put this into English, for us non Lawyer-speak members?

Sorry for the "one-liner", but I've seen contracts to buy and sell multi-million dollar companies that weren't as obtuse as this.

I think I understand. Here you go:

1) The contract states that the insurance company can be compensated for the clearly laid out medical expenses, but obviously they can't take anything above that, i.e. "punitive damages".

2) The attorney was a moron for not realizing this.

One key to writing: Less is more. Cut, cut, cut.

That's not lawyer speak. If it is, it's bad lawyer speak. I gave up, as I usually do, after the first paragraph. Otherwise does not, nor has it ever, meant also. I think he used that word a number of times and correctly, maybe once or twice. I usually scan and skip. One key to writing, never try to sound like you know more than you do by using obfuscating the meaning behind the use of flowery language mixed with incorrect usage.

Perhaps the judgement in the situation debated in this thread wasn't enough to cover everything because nobody could understand the lawyer.

And I thought I was the only one. I am sure that this poster had some valid points to share with us, but unfortunately, none of us can decipher what was written. I would be interested in the English version of this.

I've worked for a PI attorney in California for the last 15 years. Over the years the practice of subrogation has "come into its own" so to speak. We've never gone up against WalMart, but we've had subrogation rear its ugly head many times! The plaintiffs' attorney has the job of "talking them down" to arrive at an equitable solution for all. I am wondering about about this woman's lawyer and how experienced he was/is. We've dealt with huge cases and we've never had to deal with anything like this! I feel like there is a puzzle piece missing somehow.

NiteGuy:

I can, but it will cost you $175 per hour of my time. "Brief" and not "obtuse" is otherwise the applicable word, as the lack of intelligence implied by "obtuse" is on your part and not mine, i.e., I am writing above your head, as it were. As my first paragraph was intended to communicate, certain necessary info is absent from the write-up and so it is simply not possible to reach a conclusion here one way or the other. For all we know, this lawyer spoke to the insurer hundreds of times, there was the broadest subrogation clause possible, the insurer refused to compromise its right of subrogation and the lawyer took the only step that he thought might have some chance, however small, of saving some money for his client. For the irony here, the obtuseness of the piece is the result of the piece being emotion, and not critical-thinking, driven [somebody got outraged about this poor woman and so never bothered to educate self on the issues involved and then report on the matter in that context].



Entspeak:

Language is defined not merely by dictionary definition but also by usage and context. Put in the word "also" for "otherwise" in my last and see if I meant "otherwise" to mean "also" rather than "in another way or in other ways" or "in other respects", etc. And I know that I am more intelligent than you, and I am in other respects, or otherwise, not so insecure that I need to prove anything to you. Learn what the word "subrogation" means. Then learn the distinction between the broad subrogation clause and the limited subrogation clause. As I tried to explain to the uneducated in paragraphs two and three of my last, there is a means of defeating the limited subrogation clause but not so with respect to the subro clause that provides that so long as we paid monies on your behalf and you received any monies from the responsible third-party, then we are subrogated to your right to receive those monies and never mind whether you and the defendant, or the jury, called the monies, general, special, or other damages. Now, see that word "received"? Tell me, is the law in the relevant jurisdiction that one "receives" monies from the responsible third party when the monies are placed in trust for purposes of satisfying future medical needs? I don't know. But as I said, for the court to do what it did, it necesarily had to rule that the monies going into the trust was "receipt" by the plaintiff of those monies, since if not, then plaintiff did not receive monies from the responsible third party and so there cannot be any subrogation claim. If you understood what the word "subrogration" means, and in context, then you'd have gotten that point. Read this, and then go back and read my post:

http://en.wikipedia.org/wiki/Subrogation

Now do you see why the matter of "reciept" is at issue? If not, see item no. 5, which provides, in relevant part: 5. I-X receives...

For any subrogration claim to exist in this circumstance, the woman in question must be deemed to have "received" the $700K tendered by the defendant's insurer.

Sorry that it doesn't sit well with you, and we've had this discussion before, but I have people depending on me, you might say that their fate is in my hands, and so I simply have neither the desire nor the time to explain to you the most elemental principles of subrogation. You can look those up for yourself on wikipedia [to use just the one source]. If you had done so, then you would know why I spoke of the matter of whether the monies in trust for future medical needs equates to the plaintiff's receipt of those monies. And you would also know why I wrote that a finding of "receipt" of the monies by the court was a necessary predicate to the court's ruling. If you still don't get it, read item 5 again.

Now, re paragraphs 2 and 3 of my prior post, can you now see the distinction being made? The insurer has a right to recover monies it paid if the insured receives monies for the same expenses from the responsible third party [the "collateral source rule" serves to prohibit the insured from prevailing on the claim that you really have no damage as the expense was paid by someone else, and please, look it up]. Medical insurers pay for medical bills, and not for emotional distress, conscious physical pain and suffering, a limitation of activity and corresponding loss of enjoyment of life, and so on, And so what we do to get around or "freeze out" the subrogating insurer is to have the settlement agreement with the responsible third party say that the monies being paid are not intended to compensate the insured plaintiff for medical expense, lost wage, or any other item of special damage. And so going back to the matter of receipt, if denominated as general damage only, and not intended to compensate for medical expense, lost wage, or any item of special damage, then the plaintiff has not recieved money that duplicates money paid by the insurer, or so says the relevant settlement agreement. Now if the insurer wishes to defeat me in this our ongoing war, it will have a contractual provision that provides that its entitlement to monies received from the third party does not depend on whether we call those monies "general damage", "special damage" or other damage, i.e., so long the insurer pays for any expense and you get any money whatsoever from the responsible third party, then the insurer has a claim to that money up to the amount that it has paid on your behalf. And as can now see, best of all is to allocate all of this money, or as much as we think that we can get away with, to the husband, as he is not a party to this contract and so the insurer has not paid any money on his behalf and so there is no and cannot ever be any subrogation claim respecting him.

Few, if any, have here defended the plaintiff's lawyer. But not his fault that you and some of the others are ignorant in this respect. Does anyone here know what the assets of the company are? How about $700K in insurance, $3,500 in the business account, $5,000 in accounts receivable, and $1,500 in "hard" assets, here meaning that old Apple IIsi, the hand kept books, and the 16 year old truck now wrecked in the accident. So why take the case to trial, when the woman's doctors are going to cost tens of thousands dollars in trial prep and trial expense? And maybe he'd have liked a structured settlement, but in a no assets but only insurance case, maybe insurer simply tenders the policy limit and lets you worry about "receipt" of the money [call it the insurer's Jeffersonian-like vision of avoiding foreign entanglements]. And so maybe all that the lawyer could possibly do here is rely on the weak claim that his client didn't receive the money as it was in trust for future medical needs, with the emphasis here on future [and so not intended to compensate for past damage that the insurer has already paid for and if truly used for the stated purpose in the future then the insurer will be relieved of its contractual duty to indemnify the plaintiff for her medical expense (as the trust now takes care of that)]. Maybe I missed the report in the article, but I'd indeed like to know whether this trust was created by the settlement agreement, and funded by the defendant's insurer [as opposed to the defendant's insurer paying over the money to plaintiff and then she and her lawyer then establishing the trust]. Small or meaningless distinction to some, certainly to those not understanding that the common law is judge made law, but a matter of critical import in the courtroom.

KT, I have never seen a legal document or even seen a legal brief from a supreme court decision posted right here on this site that was anywhere near as complex as you tried (and succeeded) in writing here. It is so obviously filled with double speak, that it is a caricature of legal speak. NO way I would pay any lawyer that pulled that stunt 175 an hour.

CR:

Was I writing a legal document or legal brief? And were you paying me my rate of $175 an hour? So you get what you paid for and I otherwise don't have time to write legal briefs here on AD. You might otherwise learn the basics of subrogation law, since if you and some others had, then you'd have understood most, if not all, of what I wrote initially. Again, sorry, but I have neither the desire nor the time to educate you and some others with respect to those matters that can be understood on a twenty minute review of a wikipedia page on subrogation. Since you spoke of legal documents and legal briefs here, then why is here any different than the courtroom? So educate yourself first before you come to court and chastise me re my taking time out of my life to provide you with some glimpse of what might have went on here but we don't know since the author of the one piece spent as much time, none, as you did in preparing for this discussion. And so you know, it's "complex" owing to your ignorance of the subject matter.

All that I was otherwise trying to do here was throw some ideas out there, so that if you and some others were to read up on subrogration, then maybe when you got to the word "receives" on the wikipedia page, the light bulb would go off, and you'd relate your reading to my remarks on the "receipt" of the monies. Same goes for the "duplication" and how the insurer learns and so writes the policy so as to make the matter of "duplication" irrelevant. Sorry for not providing the wikipedia page, but I also need attend to other pressing matters. My work day never truly ends. I thought that I'd rather quickly float some ideas here. And if it doesn't read like a legal brief, not only is there the lack of time and money, but we don't necessarily get to be us in the courtroom and so when I write about things that are my profession outside of the courtroom, the writing tends to become more emotional release, and so some are surely the children of unwed mothers if they think for a moment that we were ever representing their subrogation interest out of the goodness of our hearts...

Lastly, if you want the $175 version, here's what it looks like, with appropriate redaction, from a memo in a CPS case, and this goes to my one remark to nebraska a while back re foster parents not knowing when to let go:

"[Mr. A] would simply submit that if Foster Parents were not so “dead set” [as it were] on a termination of his parental rights and their hoped-for, subsequent adoption of his children, then they would likely appreciate that the planned and ordered removal of [Little Girl L] and [Little Girl LL] from their care is simply not about parental right to the child, on the one hand, versus the children’s best interests on the other, since in this child neglect proceeding the best interests of [Mr. A's] children are paramount but their best interests are presumptively served by being in [Mr. A's] care and custody. See, T.S. v. M.C.S., 747 A.2d 159, 162 (D.C. 2000). The stated presumption otherwise exists only because of the natural affection, love, and instinct that a parent, far more often than not, has for his children. As the court put the matter in Allender v. Sellers, 227 Iowa 1324, 1332, 291 N.W. 176, 180 (1940):

“Human experience has demonstrated that children ordinarily will be best cared for by those bound to them by ties of nature, ‘bone of their bone, flesh of their flesh.’ Something more than the material things of this life is essential to the nurture of a child, and that something is the father’s love and the mother’s love, or as near its equivalent as may be. Recognizing this, the law raises a strong presumption that the child’s welfare will be best subserved in the care and control of parents, and in every case, a showing of such relationship, in the absence of anything more, makes out a prima facie for parents claiming the custody of their children.”

[Mr. A] would simply submit that, to date, his conduct during the course of this proceeding has rightly been described as “excellent” and that such serves as witness to the validity of the presumption that his children’s best interests will be served by their return to his custody, which is the underlying purpose to be served by the planned removal and relocation to which Foster Parents so misguidedly object.

Foster Parents would also do well to consider the “flip-side” [as it were] to the above [but omitted] recital of a father’s right to the care and custody of his children, which is that it is also well-settled that the establishment and continuance of the parent-child relationship is the most fundamental right a child possesses, to be equated in importance with personal liberty and the most basic constitutional rights. See, Carla H. v. Tim R. (In Re D.J.), 268 Neb. 239, 246, 682 N.W.2d 238, 244-245 (2004); Hall v. Lalli, 194 Ariz. 54, 58-59, 977 P.2d 776, 780-781 (1999); Ex Parte Martin, 565 So.2d 1, 3 (Ala. 1989); Commonwealth ex rel. Gray v. Johnson, 7 Va.App. 614, 620, 376 S.E.2d 787, 791 (1989); Ruddock v. Ohls, 91 Cal.App.3d 271, 277-278, 154 Cal.Rptr. 87, 91 (1979). As was so aptly stated in In Re Adoption of Farabelli, 460 P. 423, 433-434, 333 A.2d 846, 851 (1975):

“Appellants have laid great stress on the traumatic effect they allege would be associated with the child’s removal from the surroundings she has been familiar from birth (Debora was age eight at the time of the filing of the [adoption] petition) and transplanted to what they suggest would be a foreign and unaccustomed environment. We are not unmindful of the adjustment that is required for a transition from one household to another. Commonwealth ex rel. Children’s Aid Society v. Gard et ux., 362 Pa. 85, 66 A.2d 300 (1949); Davies Adoption Case, 353 Pa. 579, 46 A.2d 252 (1946). We are equally aware that the longer the former existing relationship, the more difficult the adjustment to the new family. These considerations, however, cannot cloud the right of the child to experience the love and affection of a natural parent where that parent is not only able, but more than willing, to provide that relationship. Cf. Commonwealth ex rel. Welsh v. Welsh, 96 Pa.Super 426 (1929). ”

[Mr. A] would next suggest that Foster Parents would do well to also consider that the mere provision of services herein demonstrates that [Little Girl L] and [Little Girl LL] have a right to their father’s care and nurture and that the planned return to his custody is in their (and the state’s) best interests. More specifically, HRS § 587-1 provides, in pertinent part:

“The legislature finds that children who have been harmed or are threatened with harm are less likely than other children to realize their full educational, vocational, and emotional potential, and become law-abiding, productive, self- sufficient citizens, and are more likely to become involved with the mental health system, the juvenile justice system, or the criminal justice system, as well as become an economic burden on the State…

The policy and purpose of this chapter is to provide children with prompt and ample protection from the harms detailed herein, with an opportunity for timely reconciliation with their families if the families can provide safe family homes, and with timely and appropriate service or permanent plans to ensure the safety of the child so they may develop and mature into responsible, self-sufficient, law-abiding citizens… Every reasonable opportunity should be provided to help the child's legal custodian to succeed in remedying the problems which put the child at substantial risk of being harmed in the family home. Each appropriate resource, public and private, family and friend, should be considered and used to maximize the legal custodian's potential for providing a safe family home for the child.”

In light of the plainly expressed statement of purpose of the Child Protective Act, [Mr. A] would further submit that Foster Parents’ objection to the DHS’ current plan is nothing more or less or other than their objection to the provision of every reasonable opportunity to help [Mr. A] succeed in remedying the problems which put his children at substantial risk of being harmed in the first instance. So too, Foster Parents’ objection to the DHS’ current plan is nothing more or less or other than their objection to consideration and use of each appropriate resource, including family and friend, so that the same might be used to maximize [Mr. A's] potential for providing a safe family home for his children. [Mr. A] would lastly submit in this regard that the DHS’ June 15, 2006, Supplemental Safe Family Home proves the point beyond any reasonable dispute [at p. 6]:

“[Dr. J] recommended that [Mr. A] establish his own home and seek stable employment prior to the children being reunited. Lastly, [Dr. J] recommended that [Mr. A] continue to seek out his family in support in assisting him with adequate help and respite as he takes on the role of a single parent.”

Such recitation certainly explains the DHS’ planned removal of [Mr. A's] children from their current placement with Foster Parents and their relocation to Maui where they will be cared for by [Mr. A's] sister E.... ...And further note that item 3 of Foster Mother’s Declaration itself provides that she is aware that “I am further informed and believe that the belief is that Father will have a greater ‘support’ system on Maui and that this will give him a better chance at providing a safe home for the children.” And by support system for father on Maui, Foster Mother presumably meant to say that such consists of not only the proposed substitute foster parent, [Mr. A's] sister E..., but also [Mr. A's] mother, his sister M..., his sister S..., his sister L..., and his brother K..., all of whom reside in either [omitted] or [omitted], with [Mr. A's] sister M... living the farthest from his sister E..., with the distance separating them being roughly one-half mile. In rather stark contrast, all that [Mr. A] has here on Oahu by way of support is his brother C..., an uncle, and a cousin.

[Mr. A] would next submit that placement of his children in what has come to be known as a “fost-adopt’ home was a mistake and that such should never be done while a reunification plan is in place. More specifically, as noted in Families In Crisis, a 1991-92 report of the Grand Jury in and for the County of San Diego, California:

“If the child has not been ‘reunified’ after 18 months, the judge or referee is required to order a ‘permanency plan’ which is either adoption, guardianship, or long term foster care. The judge has the power at that time to terminate parental rights. This is called the .26 hearing.

Throughout this process, the child will have been detained by the Department. The detention can be with relatives or in a foster home. Usually there have been multiple placements. In some cases children are placed with foster parents who are seeking adoption. These are called ‘fost-adopt homes.’

The Jury recommends against placing any child in a ‘fost-adopt’ home while there is a reunification plan still in place.”

[Mr. A] would submit that the recitation in Foster Parents’ moving papers that “Foster parents are prepared to adopt the children should parental rights be terminated” proves the wisdom of the San Diego County Grand Jury’s recommendation against placement of any child in a “fost-adopt” home while there is a reunification plan in place. The goal here is reunification, and not termination of parental rights and subsequent adoption. But this is not the first time that Foster Parents have been heard speaking of a termination of parental rights, their adopting [Mr. A's] children, and reunification being harmful and improper. More specifically, in his May 16, 2005, Second Report To The Court, the children’s guardian ad litem [“GAL”] reported:

“Nonetheless, this GAL is concerned because they [Foster Parents] are not supportive of reunification, the goal in this case, and do not seem to appreciate the risks of reunification and the appropriate role of foster parents. During my visit, foster mother tried hard to convince me that mother would not be capable of ever providing a safe family home and that this case should go to permanency soon. Also, while trying to arrange a visit for the children’s first birthday, foster mother called this GAL and stated that such visitation would be harmful to the girls and that she ‘would object.’

Foster mother also told the Department she only wanted children that were going to permanency and believed that this placement was a ‘risk adopt’ rather than a ‘foster-adopt’ placement. I have discussed these concerns with DHS Social Worker, [name omitted], and she stated that she too has tried to help the foster mother understand that this is not yet a permanency case, to little avail."

[Id., at 4]

From the recitation in the GAL’s June 20, 2006, Sixth Report To The Court, providing that “The foster home still has some of the same problems previously discussed: hostility to reunification…,” it would seem that some things never change. And so now, instead of reporting to the GAL that [mother] would not be capable of ever providing a safe family home for her children, Foster Parents are trying equally hard to convince all concerned that [Mr. A] likewise will not be capable of ever providing a safe home for his children and, apparently, never mind [Mr. A's] having done everything asked of him herein and his otherwise having lived a normal life.
***
As a final matter, [Ms. B], the natural mother, was found to be in default during the course of the February 21, 2006, hearing and the April 19, 2006, Orders Concerning Child Protective Act so provides. With respect to such default, [Mr. A] would simply ask that no further action be taken by the Family Court, and on the basis that [see, S.D. v. Department of Children and Family Services, 805 So.2d 10, 20 (2001) (Schwartz, J., dissenting)]:

“In my view, the decision to the contrary of all of this subverts the interests of both the human beings with whom we are supposed to be concerned. On the one hand, far from a result which least interferes with the mother's ‘rights’ to her child, as the law requires, the court destroys them entirely. On the other, and far more importantly, it likewise destroys the child's right to his own mother's care and companionship. I cannot and will never understand how L.R.’s interests are served by substituting the Department of Children and Families of the State of Florida for and as his own mother. What is more, there is literally nothing to be accomplished by doing so. This is true because, while termination may ordinarily at least permit a subsequent adoption, everyone agrees--because the father's parental ties remain intact and in the light of the fate of the appellant's other children--that adoption is not a viable or realistic possibility for this child.”

[Mr. A] is otherwise aware of, and intends on heeding the recommendation of the GAL concerning his not having any contact with [Ms. B], but there simply is no need to terminate her parental rights. And for one final word on "adult-driven" versus "child-driven" matters, perhaps Foster Parents might lastly do well to consider that if the Lord answers our prayer, then our prodigal sister might come to realize the error of her ways and decide to come home to us. Foster Parents have never desired that result, rather they have only and simply desired that she fail so that they might in turn adopt her children. That reality is its own rather compelling witness as to just which disposition herein is in the best interests of both the adults and the children.

III. CONCLUSION

Based on the foregoing discussion and the authority cited therein, [Mr. A] would simply submit that the DHS’ challenged determination, to wit, that removal of his children from their current placement with Foster Parents in favor of their placement with [Mr. A's] sister E.... on Maui is in their best interests, is not clearly erroneous and should again be affirmed by the Family Court. Accordingly, [Mr. A] would ask that Foster Parent’s Motion For Immediate Review And For Order That The Children Remain In Placement In Their Home, filed herein on July 24, 2006, be denied and that an order be entered so providing."

That's what you get for $175 an hour [though the memo in total is 17 pages in length].

Kivrot, all the posters are asking you to do is try to be more brief when writing your posts. Most of us don't have the time to thoroughly research legal matters or to even read anybody's attempt at giving us a page long introduction to the details.
When people on AD debate, we usually talk about the spirit of the law and then use the letter of the law to back up specific points. Just because something is legal doesn't necessarily mean it's right, and just because something is illegal doesn't necessarily mean it's wrong.

What the debate is about is whether it really is morally acceptable for large Corporations like Walmart to go after the Lawsuit reward money when the Lawsuit reward money is barely enough to cover an injured person's lifetime medical costs. And in the article that I provided a link for, we're talking about catostrophic injuries here.

Isn't it obvious, CR? KT thinks he's being paid by the word.

The hilarious thing here is that KT is NOT speaking above anyone's head, no matter how much he thinks he is. I took the time to read through the whole thing (God knows why), and discovered that it could be pared down to the simple points I made in that post above. There was no reason to use the kind of language that he did, other than to say, "Hey! I'm smart! Look at me! Look at me!"

The truly intelligent people I know don't bother to do that.

Let me begin by saying I wouldn't even get out of bed for 175/hr but that's a whole different story...

Now then onto the thread...

Walmart isn't doing anything except being unfairly linked here. So does Walmart have the right to go after this woman's money? No - which is good because it isn't. As for the Insurance company what they are doing is scummy and legal. Shrug. Her lawyer failed miserably and I suspect that some good will come her way... probably *gasp* from Walmart.

I would object that the insurance company is doing anything scummy. Her insurance company paid medical bills that pertained to injuries she suffered that were the fault of another person. Her insurance company did their job by covering the medical bills to prevent her from losing everything in such a trying time. When the settlement was completed, her insurance company deserved to be compensated for their expenses, when their client was not responsible. I will agree that he lawyer failed miserably in not negotiating a better settlement to cover the medical expenses. Someone has to pay those expenses, and the party at fault is the one responsible (or in this case the insurance company of the party at fault). Her insurance company sustained significant financial losses that legally they deserved to be compensated for by the at fault party's insurance company. Either the lawyer did not get a high enough settlement, or the other party did not have enough coverage. If what I understand to be the case, the commercial truck caused the accident and if that is true, no commercial trucking company would only have $700,000 limit on it's claims given the possible magnitude of accidents that are expected from a large truck. Without further information, I would have to assume that the lawyer should have done a better job in this situation.

No, it is unethical because they collected premiums for thier benefits, and that should be the end of it. No insurance company should be allowed to collect anything from anybody except premiums, that is why it is really a type of fraud that insurance companies engage in, in the first place.

they make thier money off of denying claims and taking benefits. The denying of claims is scummy enough as it is.

They aren't taking anyone's benefits. They paid this clients bills, and since their client was not responsible for the accident, they too should not be responsible for the bills that they paid. They were recouping the money through the lawsuit from the insurance company that was liable for the medical bills. I am not a big fan of the way insurance companies work either, but in this instance, they paid bills that were the responsibility of the other party, and was reimbursed from the money in the lawsuit. If the lawyer had done a better job, and if the other party's insurance had sufficient limits, the settlement should have been much higher to cover the medical costs and to provide for the family. In this instance, the victims insurance is not in the wrong, but the lawyer is. Insurance is a business just like any other business. If they did not recoup the money that they paid out when they had the legal right and the responsibility to, they would go out of business, or the premiums would be much higher than they already are.

I hear what you are saying -but disagree on the premiums. they have actuarial tables that pretty much gauruntee that they will have profits. It is just greed and avarice and bad legislation that allows them to recoup any costs that are due the victim. I would love to see a law, tort reform if you will, that does not allow insurance companies to recoup any money outside the premiums owed, and to fight fraudulent claims. Insurance is a massive money maker, mostly due to premium re-investment and denial of claims- they take premiums, and rarely pay it out. It is not right or ethical that they are allowed any more money for any other angle- they need to have thier butts kicked on this issue, in legislation that denies them this "lien" "right".

They have no "legal right and responsibility" to go after these claims- it is just that they have good lobbyists that tend to buy off congress critters to write law as they like it. They have a DUTY and an obligation to pay off claims as they are appropriately made- NOT to recoup that money, since that money is based on the premiums charged.

You can pay out on a premium your whole life and never see a dime of that money- the company makes big money on that- and they sure as hell don't need to be double dippin' into the candy jar.

CR:

It isn't "bad legislation", as you put the matter. Subrogation does not have its origin in statute, nor in contract. Instead, subrogation has its origin in the common law and is a doctrine that is equitable in nature.

Speaking of equity, as you reported, our gal paid premiums, so why are we allowing her to claim the actual expense of her treatment as an item of damage?

Next item, the other policy holders. And so query, does the insurer have a duty to the other policy holders to recoup the monies that were sucked out of the common pool to pay for this one gal's medical care? If they don't have that duty and they don't try to recoup, then expect a rather substantial premium increase.

Lastly, re things actuarial, yes and no. Ever hear of this "act of God" exclusion in your insurance policy? We have that exclusion because your premium does not include the 100 year storm, etc. As to the insurer making a profit, well, that didn't happen with hurricane insurance and Hurricane Iniki here in Hawaii. The state insurance commissioner had to take over several insolvent insurance companies. Hurricane Katrina also has a long reach:

http://the.honoluluadvertiser.com/article/...P603210322.html