Health Plan Sues Accident Victim to Recover Entire Settlement Recovery

Can you imagine recovering a settlement after being permanently injured in a car accident that wasn't your fault, and then being sued by your own health insurance plan to recover all of your settlement funds? That's exactly what happened to 52-year-old Missouri resident Deborah Shank. A collision with a semi-trailer truck seven years ago left Shank permanently brain-damaged and in a wheelchair. Her husband, Jim, and three sons found a small source of solace: a $700,000 accident settlement from the trucking company involved. After legal fees and other expenses, the remaining $417,000 was put in a special trust. It was to be used for Mrs. Shank's ongoing and future medical care.

But instead of using that money for her medical treatment, it will likely all go to repay Shank's health insurance plan. The health plan was administered through Shank's employer at the time - Wal-Mart Stores, Inc. Wal-Mart's health plan was created under ERISA (Employee Retirement Income Security Act of 1974).

ERISA is a federal law that sets minimum standards for most voluntarily established health plans in private industry to provide protection for individuals in these plans. But recent federal court decisions have given enormous power to ERISA plans, especially in situations where the insured received health benefits due to injuries caused by another party. In those cases, many ERISA plans argue that it is entitled to repayment from any settlement recovery for accident-related benefits received by the person insured under the plan. Like most company health plans, Wal-Mart's ERISA plan reserved the right to recoup the medical expenses it paid for someone's treatment if the person also collects damages in an injury suit.

But until recently, many employers didn't vigilantly enforce the provision, and some states and federal courts didn't think the claim held water. But as the cost of covering workers continues to escalate, employers and health plans are getting more aggressive about going after the money. A Supreme Court ruling last year also has given them a stronger legal position to sue employees. And the employers have been winning. In insurance language, the recovery practice is called "subrogation.

" Employers and insurers say it's necessary to ensure that medical expenses aren't paid twice. By recovering those costs from someone who's been compensated elsewhere, they argue, they're saving money for everyone on the plan. That's exactly what happened in Shank's case. Her Wal-Mart ERISA health plan sued Shank to recover the $470,000 it spent on Shank's healthcare. It did not matter that Shank only had $417,000 left over after payment of lawyer fees and litigation costs. In fact, Shank's lawyer anticipated Wal-Mart's lawsuit and tried to protect these funds by depositing them into a "special needs" trust.

But the federal district court ruled that this special trust offered no protection, and it could not defeat the claim asserted by Shank's ERISA plan. A spokeswoman for Wal-Mart said the company was obliged to act in the interest of the health benefits of its employees as a whole. "While the case involves a tragic situation, our responsibility is to follow the provisions of the [company health] plan which governs the health benefits of our associates," said Wal-Mart spokesperson Sharon Weber.

What does this mean for other accident victims? If you receive health insurance benefits under an ERISA health plan, you may be forced to repay 100% of these benefits back out of the settlement recovery. It's as if your health plan benefits are really just a "loan" instead of insurance. It does not matter that the employee has often paid for these benefits through payroll deductions and other payments. Clearly, Congress needs to act.

The ERISA laws should be amended to permit the innocent accident victim to keep the benefits in certain cases, or at least force the health plan to share in the legal costs incurred by the victim by having to hire an attorney and incur costs to recover a settlement. If this problem is not fixed, accident victims like Shank will continue to suffer unjust results.

Christopher M. Davis is the managing partner of Davis Law Group. He brings over 15 years of practical yet innovative experience to personal injury cases. He practices law in Seattle, WA. You can learn more about Mr. Davis at or

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