Recent Blog Posts in July 2009

Everyone thinks they know what Uninsured/Underinsured Motorist coverage (UM/UIM Coverage) is and thanks to recent changes in the law, nearly everyone in Colorado has this coverage.  However, the extent of this coverage's ability to affect nearly every car crash in Colorado is probably not fully understood. So I thought it would be nice to provide a little refresher on what Uninsured/Underinsured Motorist coverage is, how it works, and why it is so important.

UM/UIM coverage is a relatively simple idea.  Simply stated, if you are injured by another driver and that driver doesn't have insurance or doesn't have enough insurance to fully compensate you for your injuries, then your UM/UIM policy will cover the difference.  One important caveat is that the difference between the other party's insurance coverage and the extent of your actual injury will only be paid up to the limits of UM coverage under the insurance policy.  Also, under Colorado law, if you have Uninsured Motorist coverage, you automatically have Underinsured Motorist Coverage and vice versa.  Let's do an example.

Imagine you are in a car accident and your resulting medical bills are $50,000.  The at-fault driver's insurance policy is a minimal liability policy (as required by state law, the minimum amount of coverage that a driver must maintain is $25,000). 

In this scenario, there would not be enough coverage from the at-fault driver's insurance to cover your medical bills, let alone any pain and suffering, physical impairment, wage losses or any number of other damages you may have incurred.  You could try to get the money from the driver's personal assets, but realistically, it is likely the driver does not have extensive personal assets for you to pursue.  This is a scenario where it is critical that your auto policy have sufficient UM/UIM coverage.  Let's see how this coverage works out in our scenario.

If the medical bills from your accident are $50,000 and you have gotten $25,000 from the at-fault driver's insurance, then there is still $25,000 in unpaid medical expenses remaining plus any other damages.  Likely, your UM/UIM policy is equal to your liability policy, which hopefully would be at least a 100/300 policy.  This means that you have coverage of up to $100,000 per person with a $300,000 limit on the total amount your policy would pay.  Therefore, under the above scenario, if you were the only person in the car at the time of the accident, there would be an additional $100,000 available to you (beyond the $25,000 you received from the at-fault driver) through your UM/UIM policy to pay for your outstanding medical bills and other damages. 

You may be saying to yourself at this point - "Well…this is great if I had the foresight to purchase this coverage, but I've never even heard of it before."  Well, don't despair.  Because of a recent change in Colorado law, you automatically have this coverage if you have car insurance and you did not waive this coverage in writing.  As a result, nearly every insured driver in Colorado has UM/UIM coverage. We can help you determine whether or not you have it.  Even if your insurance agent tells you that you do not have this coverage, our office would request the signed waiver showing that you declined the UM/UIM coverage.  We do this because under Colorado law if your insurance company cannot produce the signed waiver, you automatically have the coverage.

You may also be wondering whether using UM/UIM coverage will cause your insurance premiums to increase.  Rest assured that under Colorado law, when you use this coverage, it is one of the very few times where you can make a claim against your own insurance company and it will not affect your premiums.  Insurance companies who do not abide by this law face a bad faith claim against them, which would end up costing them much more in the long run, so they are very reluctant to cross the line on this issue.

It is important to understand that in the example above we have assumed that the driver who caused the accident actually has insurance.  However, it is also very common for negligent drivers to have no auto insurance at all.  Thus, it is important that you review your UM/UIM coverage and seriously consider increasing your limits.  The relatively small cost of the extra coverage is surely worth it.         

We are happy to talk to you about your auto accident claim and we can talk to you more specifically about how to best utilize your Uninsured and Underinsured Motorist coverage.  As always, your initial consultation is free. 

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"Med-Pay" is often described as the forgotten insurance coverage. Nearly everyone's automobile coverage includes it, and yet it is rare that our clients know if they have such coverage.  We often have to go directly to our client's insurance company to discover whether our client has this coverage.  So this blog will be devoted to explaining the forgotten coverage, its usefulness, and a strategy to include your Med-Pay as part of a comprehensive plan to obtain needed medical treatment after an injury accident.

What Is Med-Pay?

Med-Pay is a shorthand term for "Medical Payments."  It was formerly optional coverage, but since January 2009, your auto insurance company must offer this coverage as part of your auto insurance package.  Its sole function is to pay for medical care following an auto accident both for the policyholder AND other occupants in that vehicle.  Colorado requires every Colorado driver to be offered at least $5,000.00 of Med-Pay for all cars insured after January 1, 2009.  Under Colorado law, policyholders can still reject this coverage by specifically signing documents waiving the coverage. But if the insurance company cannot produce this signed documentation proving the policyholder waived the coverage, the insurance company must provide the coverage regardless of whether they collected a premium or not.  Though the mandatory minimum Med-Pay coverage is only $5,000.00, I would encourage any Colorado driver to consider purchasing optional additional Med-Pay up to at least $10,000.00 in coverage if you also have health insurance for yourself and your family.  If you don't have health insurance, I would recommend that you purchase at least $25,000.00 in Med Pay coverage, if not more.

How Does Med-Pay Work?

The new Med-Pay law is very much geared toward assuring that emergency facilities and emergency transport companies get compensated following treatment of a person injured in an auto accident.  Under the new law, the insurance company is required to hold in their possession $5,000.00 of the policyholder's Med-Pay coverage for a 30 day period from the day the insurance company receives notice of the injury accident.  The insurance company is required to hold the subject $5,000.00 to specifically pay any hospital, ambulance or air-ambulance that might make a claim for medical bill reimbursement within that 30 time period. After the required 30 day freeze, the remaining balance of unclaimed medical proceeds can be used to pay any other injury-related medical expenses presented to the insurance company.

As an example, assume a policyholder involved in an injury accident informs his insurance company on the day of his accident. For the next 30 days, the only eligible healthcare provider that can gain access to the Med-Pay proceeds are emergency staff, hospitals, and other urgent care facilities.  If no claims are made within that 30 days, then the proceeds become available to pay other medical treatment the policyholder incurs.  If a policyholder purchases $25,000.00 of Med-Pay, then as long as the treatment charges are reasonable and related to the accident, the policyholder has at his disposal $20,000.00 worth of med pay immediately.  After the 30 day window, the other $5,000, or any balance remaining, becomes usable for any type of auto-related injury treatment.

Use of Med Pay In Conjunction With Health Insurance: 

Two things need to be understood in coordinating med pay and health insurance benefits.  First, if a Med-Pay policyholder has substantial, long term, or even catastrophic injuries following an accident, health insurance will generally pick up all major charges with the exception of co-pays and deductibles. Depending on the insurance contract, however, those co-pays and deductibles can be thousands of dollars a year or more.  In those cases, a good way to avoid substantial out-of-pocket expenses is to utilize Med-Pay as a secondary payer of co-pays and deductibles.  In other words, a policyholder could first use health insurance to pay the medical bills and then simply seek reimbursement of copays and deductibles from Med-Pay.  If, however, treatment is not for a substantial period of time and is limited to less than the amount of Med-Pay that the policyholder has purchased, a smart approach might be to use Med-Pay for all injury-related healthcare needs.

One reason you may choose to use Med-Pay for all injury-related medical care is because as of January 1, 2009, Med-Pay providers are not entitled to get their money back from any ultimate settlement you might receive from the insurance company for the at-fault driver. In contrast, traditional health insurance companies that pay anything toward auto accident medical expenses have contractual rights to receive their money back-sometimes superior to the injured person's right to be compensated.  This right to be repaid is called subrogation, and Med-Pay providers cannot now legally subrogate.  Accordingly, there needs to be careful consideration as to whether Med-Pay or health insurance, or both, should be utilized in coordinating medical care after an auto accident.

Is Med Pay Right For You?

From a legal/medical standpoint, obtaining higher levels of optional Med-Pay is prudent and recommended.  From an economic standpoint, the general nationwide consensus seems to be that it is very affordable and often a cheaper alternative than health insurance.  However, as detailed above, health insurance works differently and Med-Pay is not a suitable substitute for health insurance or vice versa. They both have their place.  Ideally, you would be best to have both at your disposal in the event of an auto accident.

At ANDERSON, HEMMAT & LEVINE, we are always willing to talk to you about your Med-Pay issues or any other matters pertaining to your auto-related injury accident.  Your consultation is always free.

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In no way should this blog be considered medical advice.  In fact, even though I took biology in high-school, I only got a C.  My opinions on this subject come solely from my many years of trying cases where the issue of Chiropractic versus Traditional Medical care was at issue. In this post, I will be speaking in generalities and tendencies, but this certainly should not be considered an indictment toward any particular treatment modality.

This issue comes up in my office frequently when an injured victim asks, "What sort of care would be best for the case?"  My usual thought, whether I express it or not, is that the "the case" is not in need of any care. Though this may seem somewhat unhelpful, it is probably the most truthful answer I can give.  It is not "the case" that needs care-it is the injured victim.

Proper medical care is specific to the individual and sometimes, just like BBQ Ribs and a clean white shirt, a patient and a particular treatment just don't go well together.  A person who grows up fearful and suspicious of chiropractic care should really not be encouraged, beyond their comfort level, to seek alternative medicine at this critical time.   

In the early 1970's, a very famous and wonderful orthopedic surgeon, Dr. Leonard Berk, began encouraging his patients to continue treating with their chiropractor, even after he performed surgery on them.  As a young attorney, I became fascinated with this particular doctor.  Here was this conservative surgeon who was well-respected by insurance companies, his patients, and fellow surgeons in the community and yet, he regularly went against mainstream thinking by encouraging his patients to go back to their chiropractors after surgery.  Just imagine… he was doing this during the Nixon administration when nearly every medical doctor was unified in their disdain for chiropractic care.

In later years, he and I became very close. He attended my wedding and I handled his personal and clinical legal matters.  Mind you, Dr. Berk never wore a tie-dyed shirt and nothing about him exhibited anything less than AMA perfection.  So  I couldn't figure out why this man was such a maverick in his approach to treating his patients.  Even though our relationship became quite close and he was like a second father to me, I always felt more comfortable calling him "Doctor" and he too, with that very special old-school formality, always called me "Mr. Hemmat".  We kept these pretenses of formality until the last month of his life where he finally broke from them and with great affection we addressed each other by first name.  Sometime before this though, I had gained the nerve to question him about his holistic approach to treating his patients.  Our conversation went something like this:

Me:      Doctor Berk, you are an amazing orthopedic surgeon, yet you seem to be the only one that I know who thinks there is any value in chiropractic care.  Why is that?

Dr. Berk:          Mr. Hemmat, I have been an orthopedic surgeon since the Vietnam War era, and honestly I don't personally find much about chiropractic care that is either innovative or helpful in the treatment of my patients.

Me:      What do you mean, Doctor? I have seen you refer hundreds of your patients, my clients, to chiropractors. How can you as a doctor send patients to chiropractors without finding any value in their treatment?

Dr. Berk:          I have never sent anyone to a chiropractor. However, what I have done is send hundreds of patients BACK to their chiropractor who they were treating with prior to their surgery.  These chiropractors have a long and established relationship with these patients. The patients tell me the care helps them. No, I have not discovered any value in chiropractic care itself, but what I have discovered is the powerful healing capacity of a person who is comfortable with their particular care.  Who am I to tell them differently?

That was quintessential Dr. Berk. Where a chiropractor would declare that an injury is evident because an x-ray shows a "straightening of the neck" instead of a nice comma shaped curve [called Lordosis], Dr. Berk would simply say, "Sometimes people's necks are straight; it doesn't really mean anything."  Another "Dr. Berk-ism" that explains this wonderful doctor is this: "Seventy percent of injured people will heal DESPITE the care they receive."

Well, it took me a couple of years to fully understand and apply Dr. Berk's approach into our practice, but I think Dr. Berk would be proud that we finally got it right.

Here goes: In front of a jury of even the most skeptical people, if an injured person describes the care they received from a chiropractor, a massage therapist, or even an acupuncturist as bringing them back from injured to healthy, from not working to being able to work, from disabled to functional, I have never had a problem getting a jury to respect and admire the treatment provider. So, as a trial lawyer who gets asked "what type of care should my case receive," I always tell them that their care should be the type of care with which they are most comfortable.  Everything else will work itself out.

There are, however, tendencies I have seen depending on the type of treatment modality chosen by the patient. For example, by and large, patients treating with chiropractors tend to rack up larger treatment charges. There tends to be longer and more active care. This gives the defense attorney or the insurance company the ability to argue that the chiropractor over-treated and that not all of the care is reasonable and necessary. If the jury buys this argument, the client could end up with less, and often much less, awarded to them.

Alternatively, patients who treat only with AMA-approved medical doctors tend to end up with more medications and often surgery. This might look good for the case but can certainly be bad for a patient.  Also, this approach give rise to some patients becoming dependent on the medications.  When this happens, defense counsel, or the insurance company, suggests that the care and treatment was motivated by the patient's efforts to seek drugs rather than being care that was necessary.  If the jury buys this argument, the client may receive very little or no compensation at all.

In recent years, many medical doctors have adopted the approach that Dr. Berk and a few of his colleagues were quietly utilizing (without a name for it) 40 years ago.  It's now known as a multi-disciplinary approach.  This approach to medical care derives from the notion of "everything in moderation."  Many medical doctors are now utilizing traditional Western medicine in combination with some Eastern and alternative treatment, including SOME chiropractic, massage, and even acupuncture.  This holistic multi-disciplinary approach seems to be the best of both worlds and avoids some of the pitfalls and arguments generated by insurance companies and their lawyers at trial.

We at ANDERSON, HEMMAT & LEVINE think that your decisions about medical treatment and care should be left to your doctors and you, and never orchestrated by lawyers.  The care you receive is so important that you, as a patient, have to on board and comfortable with the care you receive.  I know Dr. Berk would be very pleased with the approach we take at ANDERSON, HEMMAT & LEVINE.  It serves as one of my personal tributes to a great man who taught me so much.

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Drunk drivers are a repugnant evil on the roadways of Colorado.  Drunk drivers killed over 200 innocent people in the State of Colorado last year.  For the most part, these drunk drivers are alcoholics.  They have an illness.  There is no doubt that drunk drivers and their insurance companies should be financially responsible for the injuries and deaths they cause.  But I am at a loss as to how often lawyers forget to pursue victims' rights against the co-conspirators on these crimes.  In criminal cases, prosecutors focus their attention less on junkies and more on drug dealers.  When representing injury victims involved in drunk-driving related offenses, why do many lawyers look the other way and not sue the tavern that served the alcohol to the drunk? 

This failure to bring lawsuits against the bars that over-served these drunks is inexcusable. The obstacles to bringing these taverns to justice are numerous, but there is no excuse for not investigating these claims.  Three of the most pervasive reasons for lawyers failing to recognize these claims are:

1) Time:

Claims against bars have to be brought within one year of the injury accident.   The filing of a lawsuit must be done early in the case so that there is enough time for proper discovery to be conducted in order to file the claim within the statute of limitations.

2) Hard to Identify:

Drunks are encouraged by their criminal lawyers to say nothing when they get arrested.  They often conceal the identity of the bar at which they were drinking.  However, sometimes it is obvious where these drunks were drinking, and still, a lawyer fails to bring a claim. 

3) Laws make it hard to prove:

The Colorado legislature changed the laws some years ago to make it harder to put fault on bars. Simply proving that a drunk got intoxicated in a particular bar is insufficient evidence to recover money from that bar.  Under our Dram Shop laws, a plaintiff must prove that the bar willfully served the drunk AFTER the drunk was "visibly intoxicated."  Hard task?  Sure.  It requires thorough investigation, eye-witnesses, and zealous advocacy.

All of the above are reasons why your lawyer can justify simply ignoring the tavern in these cases. Yet, 19 years of representing victims injured by drunk drivers has proven to me that these claims against the taverns should be actively investigated and not ignored. In fact, in most of my past cases, our investigation has yielded sufficient evidence to bring a viable claim against the tavern.

If you cannot get your current lawyer's attention to pursue these taverns, consider getting more aggressive counsel.

At ANDERSON, HEMMAT & LEVINE we view it as our community obligation to pursue these taverns that put these dangerous drunks on the road.

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Imagine being rear-ended and hurt. After leaving the emergency room, your bill exceeds $4,500.  The E.R. doctor tells you to follow up with your primary doctor within 72 hours. You do. Your primary doctor refers you for an MRI ($1,250) and has you see an orthopedic surgeon ($650 for 10 minutes of his time) and refers you for 20 visits of physical therapy at $220 per visit. The doctor also tells you that if that doesn't do the trick, he'll do three spinal injections ($2,500 a pop).  Quick math tells you that you are staring at a minimum of $20,000 in medical bills and no assurance from anyone that the bills won't ultimately be even higher.   

After talking to the insurance company's assigned adjuster who represents the negligent driver, you learn that the reckless driver has no personal assets and only a minimum Colorado-compliant liability policy ($25,000). Oh…and by the way, this adjuster makes it abundantly  clear that he isn't paying you anywhere near the policy limits on THIS case. What now? Hire a lawyer? You know from your research that most lawyers charge 1/3 of what they recover for you. So you do some quick math: 1/3rd of $25,000 (assuming the insurance guy ever releases his death-grip on the policy limits), is $8,333. If you stop right now and get no more care (and you're already up to $12,000 in medical expenses), you might clear $4,000 to $5,000 tops. So, you say to yourself, "I'm still hurt, can't afford anymore care and my best case scenario when the dust settles will be to clear less than $5,000?"  Being a reasonable and intelligent person, you say to yourself, "it doesn't seem that the math works out, so maybe I should just quit while I'm behind and give up.

Sound familiar? Sure it does. In fact, I hear a new story like this 10 times a week. However, what I'm about to tell you has helped relieve stress and frustration for our clients time and time again.

First, the situation is not hopeless, but that is probably what the insurance company hopes you think. My comments are my own opinion, but I suspect that many thousands of injury victims quit medical care and give up simply because the math looks hopeless. When that happens, the insurance company escapes paying, and that is great for their business. They win, and the injured person loses. They won't tell you what I'm going to tell you. So here goes:

A) There is probably more money out there than meets the eye:

A guy driving a car with minimum insurance limits by no means is the end of the search for coverage.  In fact, it is only the beginning. Additional inquiry is necessary as to whom he lives with and what other cars are insured in his household.  Was he running an errand for his employer at the time?  Does he own insurance on any other vehicle?  Does he have umbrella coverage?  Does any resident relative in his household own such a policy?  How old is he?  Is there any adult responsible for his conduct?  What sort of auto insurance does the adult have? What sort of uninsured/underinsured motorist coverage do you have?  How about similar coverage owned by any resident relative in your household?  Were you running an errand for your company?  Do you have an umbrella policy with added UIM benefits attached to it?

The above examples are just some of the inquiries that need to be made before you know how much coverage is REALLY available.  Since January 1, 2009, the law allows the stacking of multiple policies that was not permitted prior to that date. Any attorney who only looks at the policy limits on the reckless driver's car and nothing else is missing the boat and needs to find another profession before he does irreparable harm.

B) You probably don't really have to pay that much back from your settlement related to your medical costs.

1) Med-pay: If your medical care is being paid by "med-pay" coverage from your own auto insurance, and the collision occurred after January 1, 2009, there is NO payback required by state law. 

2) Health Insurance: The three things you need to know about health insurance are: 1) They don't always ask for their money back; 2) They always pay a fraction of the full value of the medical services and 3) They nearly always negotiate DEEP discounts on their claims.  I recently got a health insurer to agree to waive more than $700,000 in paid hospital and medical charges related to one of my extremely injured clients.  I have honed my skills at these types of negotiations over years and years of practice.

3) No Insurance: About forty percent of our clients have huge medical bills and no health insurance whatsoever. But you need to understand that doctors, hospitals, and collection companies are chomping at the bit to settle these claims and they play "Let's Make A Deal" all the time.  Depending on the services provided, we often convince them to accept half of their claimed bill by making the right arguments to the insurance companies, showing them what the right thing to do is.

4) The law of Interpleader: Believe it or not, there are doctors, hospitals and health insurance companies that won't play fairly by accepting reasonable reimbursement for their services.  That is when knowing how to involve the court serves as an invaluable equalizer.  Just seeing our filed court documents asking the court to slash a bill based on it being neither usual, customary, reasonable, or necessary, often causes these health providers to negotiate quick and painless resolutions - especially when they realize that it is our firm who has filed the documents and we are ready and willing to go to the mats on these issues.

HOW HOPELESS IS IT REALLY?

My last seemingly hopeless situation involved my  client being told that there was only $25,000 in total insurance and $400,000 in incurred medical expenses paid by an ERISA health insurer.  In that case, there ended up being far more insurance available than a mere $25,000.  I  recently settled with the THIRD insurance company surrendering their limits ($50,000).  This is in addition to another policy with limits of $100,000, and another with limits of $50,000.  The health insurance agreed to take NOTHING on their claimed right to repayment of medical expenses. There is still one more $100,000 policy out there. That one ought to give up and surrender its limits by next week.

Is that a success story? You better believe it! But that is why it is so critical to take your seemingly hopeless situation and come see us. There certainly are cases where we simply cannot help you.  But you would be surprised how often Anderson, Hemmat & Levine can infuse hope into your seemingly hopeless situation. 

Before you give up, give us a call.

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One of the most famous cases in which I was involved was the series of Bad Faith Insurance battles involving the family of Marco Gonzales verses Shelter Insurance Company.  Marco may have been the smallest client I ever had, just 9 inches tall and 19 ounces.  But his story, the backlash from the insurance company, and the change in the law he inspired leaves a lasting legacy.

Marco Gonzales was born more than 4 months prematurely as the result of an automobile collision. The condition that Marco's mother started experiencing post-auto accident was called a placental abruption.  A placental abruption occurs when the placenta begins to tear away from the uterus, and often, this results in internal hemorrhaging [bleeding] which is likely to be fatal to the mother.  It is not too surprising then, given the serious condition of Marco's mother and as premature as he was, that the surgeons did not have any hope that Marco would survive the procedure.  Medical science tells us that babies really cannot live if born earlier than a gestational development of 24 weeks.  Marco's gestational development was between 20 and 22 weeks.  These critical additional weeks are vital to lung development.  So, from the outset, the surgeons wrote off Marco entirely and gave no hope for his survival.

However, during the surgery to save the mother's life, doctors discovered that Marco was still alive.  After he was born (9 inches tall and 19 ounces), they swaddled him and placed him on his mother's chest.  Unfortunately, doctors told Marco's mother that he was so premature that life- sustaining measures were useless, and she should expect him to pass within minutes.  Surprisingly, a minute turned into several minutes, then half an hour, and then even an hour.  Marco, the little boy no one gave a chance, lived for 66 minutes.  Days later, Marco's mom left the hospital with both his birth and death certificates, about 10 photos, and a broken heart.

When I first met Marco's mother it was several months later.  Initially, she came to see me only about the outstanding hospital charges that Shelter Insurance was refusing to pay.  Shortly thereafter, we sent a polite letter asking that Shelter pay the $32,000 in medical bills.  Shelter ignored us.  I wrote them again.  And yes, they ignored us again.  At that point, I considered suing them but was having some problem finding law either in Colorado or anywhere else for that matter that had ever dealt with a similar issue.  Here we had a baby born as a medical miracle who should not have ever taken a breath.  Marco was born alive, he lived, and then he died.  Up until this time, however, Colorado law did not recognize a claim for death of a baby born before the point of viability (approximately 24 weeks gestation).  The law was fairly black and white: A nonviable fetus had no rights.  But how do you call a baby born alive and documented by a birth and death certificate a non-viable fetus?  On paper, Marco was not viable.  But a fetus is a preborn baby.  Marco lived unassisted for over an hour.  Marco fit no legal category.

After we filed our wrongful death lawsuit, Shelter Insurance Company continually referred to Marco not by his actual name, but as a "nonviable fetus born alive."

Under Colorado law at that time, children born alive were assumed to be viable.  A fetus (a pre-born infant) that dies is not viable.  But what about an admittedly nonviable baby that beats the odds and is born alive and even lives an hour without any life support?  Not surprisingly, there appeared to have never been another single case like this in Colorado.  Other states had some precedent with similar facts but nothing directly analogous to this situation.  The fact that there existed no legal precedent for what we were trying to do was exploited to no end by Shelter.  Their lawyers continued to scoff that we would bring such an outrageous claim.  My impression was that these insurance company mouthpieces seemed to lack a soul.  

An otherwise healthy baby lost his chance to live because of a careless driver who was insured by Shelter Insurance Company, yet Shelter refused to pay for the baby's death.  All his mother was left with was the overwhelming medical bills as a reminder of Shelter Insurance's refusal to recognize the obvious.  Marco was a baby, not a fetus.  Marco was born at St. Anthony's Hospital at around noon and died over an hour later.  All of this was perfectly documented.  Shelter argued that because Marco's gestational development was under 24 weeks and on paper he should not have been able to live outside of mom's body, he didn't have any rights.  Of course, Shelter's final analysis was that since Marco wasn't a real human being, we could not sue for his wrongful death, and therefore they didn't owe Marco's mother one penny for her loss.

In what was described at the time as a landmark ruling with national implications, the Honorable Judge R. Michael Mullins of the Denver District Court correctly ruled that Marco, despite the physiological obstacles, was indeed born alive and had all the same human rights as any other baby, even though he was only 20-24 weeks intra-utero.  This meant that contrary to Shelter Insurance's arrogant mantra, Marco the "non-viable fetus born alive," could speak from the grave through legal counsel and allow a jury to determine the extent of monetary recovery that the family should get for the loss of their little boy.

At the jury trial, the lawyer for the insurance company continued to call Marco a fetus and continued to ask the jury not to recognize Marco as human.  But a jury of reasonable folks told Shelter in no uncertain terms that Shelter was off base and that Marco was in fact a person.

The second trial against Shelter on this same basic issue started during Shelter's appeal of the prior jury verdict awarding money for Marco's death.  In this action, we, on behalf of the family, sued Shelter for bad faith insurance misconduct for the manner in which they handled this claim, and even their continued reluctance to abide by the prior jury verdict.  Shelter hired new lawyers who continued their same campaign of calling Marco a fetus.  After four days of trial, the jury not only awarded substantial money to Marco's family but, quite unexpectedly, also awarded huge punitive damages against Shelter for their willful misconduct.

Since those trials years ago, Shelter has continued a campaign of appealing these verdicts. Both appeals upheld the trial court's rulings and Shelter may now have finally run out of legal options with a recent Appellate Court decision that once again upheld the jury verdict.

Marco Gonzales was a very small boy, just 9 inches tall and just 19 ounces, but for those 66 minutes his heart pumped like a lion.  In fact, I argued to one jury that I suspect Marco was nearly all heart as I read then a brief passage from Horton Hears A Who: "a person's a person no matter how small."  As a result of his little life, the rights of premature children born in Colorado have been solidified.  He took on a corporate giant and beat them at every level of the judicial process, not once, but twice.  He taught me the precious lesson that no matter how small a case might seem when it comes through the door, a good attorney needs to always carefully look at every case for hidden gems.

I am hopeful that Marco taught Shelter a lesson or two as well.

On a personal note, I cannot help but think about Marco every time I see small children playing in a park or airport.  Marco would just now be turning four years old.  I wonder what type of child he would have been.  I wonder what type of man and father he might have been.  More globally, I wonder what this world might have gained had this little boy had a chance at life.

At ANDERSON, HEMMAT & LEVINE we never forget that each of our clients has a story.  But few clients have ever had the personal, professional, and nationwide impact of Marco Gonzales.  I will always view him as a little fighter who made this world a little better.

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Initially I thought about titling this blog, "The Dangers of Settling Without Attorney Representation."  However, about halfway through writing this blog, I realized that hiring an attorney doesn't always prevent uninformed settlements.  

Sadly, there are many attorneys who only dabble in personal injury/accident cases and have so little knowledge and experience in this area of the law that you can probably get the same result without them. So this blog is not a pitch to convince you to hire counsel but more a warning.  If you are about to settle your injury accident case (with or without a lawyer) with the insurance company, Watch Out & Proceed with Caution.

A)        SETTLING FOR WHAT YOUR BILLS ARE INSTEAD OF WHAT THEY LIKELY WILL BE:

Often times I hear from personal injury accident victims weeks or even months after their accident.  They tell me that the insurance company offered them a thousand dollars over and above the current medical bills.  My first question is always the same: "what do you know about your future medical needs?"  Inevitably, their answer is always the same-they have no idea.  The reason they don't know is because their doctor has said nothing this early into care about future medical needs and they haven't asked.  I caution them and you that you should never settle any personal injury case until you have had a detailed and frank discussion with your doctor about what medical care you will likely need in the future.  The insurance company makes early offers to tempt the weak at heart to cut and run.  They continue to do it, because it has been very successful for them in cutting and minimizing their losses.

B)        SETTLING WITHOUT REGARD TO THE MONEY THAT HAS TO BE PAID BACK

This is a huge problem.  I am afraid that this mistake is happening time and time again. When the insurance company settles with you, it means they expect you to sign a release in exchange for a lump sum figure.  These poor people often think that they picked up, say $7,500, for their settlement.  Then six months later they get a letter from their own health insurance company, or worse, Medicare, saying that they owe $15,000 or more for their accident-related medical expenses.  The consequences can range from being sued by these entities to the health insurance company revoking the person's insurance coverage, or both.   Most injured victims don't realize that even though they have health insurance to pay for the medical expenses upfront, eventually those companies will demand to be reimbursed from any eventual settlement proceeds.  When settling your case with the at-fault insurance company, you have to be aware of what has been spent on your behalf by other companies and who is expecting to be paid back.

1) Health Insurance:

Health insurance generally has contractual rights to reimbursement for expenses that they paid related to the accident.  This is called subrogation.  If you get notice from the insurance company before settlement that they expect to be reimbursed, you need to take it seriously.  You must consider their claim in reaching any settlement.  Also, you should communicate with them regularly before settling.  Don't just assume that your health insurance carrier is in contact with the auto insurance carrier.

2) Medicare/Medicaid:

If your medical expenses were paid by either Medicaid or Medicare, understand that they have an automatic and very strong lien (right to be reimbursed) on any settlement proceeds recovered.  They do not even have to give you notice of their intent to collect their money.  The law presumes that you are on notice of their claim.  If you fail to consider their lien when reaching a settlement, that very critical error will cost you in a very large way.  They will sue you for the money they already paid related to the accident, and they will likely pursue attorney fees, and penalties for having to sue you.

3) Worker's Compensation:

If your injury claim was paid for by your employer's insurance company through worker's compensation, expect to have to pay back the medical, wage loss and impairment compensation. There are some very notable exceptions that may save you some money when it comes to worker's compensation reimbursement, but again, the time to get informed is BEFORE settling with the auto insurance company.

CONCLUSION:

Be careful when settling your case to know who is responsible to pay what.  Also, make sure that the settlement is not only fair right now but also, that it makes sense in comparison to future medical needs and after proper analysis of what has to be paid back from settlement.

The time to become educated on the pitfalls of an uninformed settlement is now.

At ANDERSON, HEMMAT & LEVINE, we would be happy to provide you a free consultation for this or any legal concern.

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