O'Malley Tunstall PLLC
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Posts tagged "bad faith litigation"

PI: Injured and now my Hospital wants to sue me rather than take my health insurance.

Often people first call our office out of concern over payment for large medical expenses as a result of an automobile collision that was not their fault.  The law in North Carolina after the passage of HB542 and SB 586 has changed and only a portion of any bill, that amount that is neccessary to satisfy a medical bill, is admissible to prove evidence of medical expenses. Rule 414 Evidence of medical expenses. Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. In the real world, many clients debate whether or not to use their health insurance to pay their medical bills after an injury.  They don't want to use the insurance because it was not their fault, they are afraid of higher premiums and don't want to have the hassle of filing the insurance.  Often, many hospitals take that decision away from the patient by refusing to bill the health insurance regardless of whether the patient would like it billed or whether the patient has already paid for health insurance that should pay the bill. Many insurance companies, such as Medicare, are secondary payors.  That means they pay only if no one else pays.  However, even Medicare states that when a bill is left over 120 days it shall become primary and pay.  In these situations, insurance such as Medicare of the State Health Plan is entitled to obtain reimbursement for all the bills paid by them by the third party at the end of the case. Regardless of the reimbursement provisions (called subrogation) many hosptials take the decision away from the injured party and refuse to bill the person's health insurance hoping for a greater recovery from the at fault party in the collision.  However, the hospital doesn't take the risk of the patient recovering the amount from the at fault person's insurance, instead they often make claims against and sue the patient for the unpaid bill, even though they could have accepted the insurance. The Charlotte Observer has recently written a series of articles on these not-for-profit hospitals suing uninsured persons for their unpaid medical expenses.  Articles.  Another article by the Charlotte Observer even references a veteran with tri-care insurance whom they sued because they could not properly bill the insurance.  Article 2.  In another article Duke University failed to properly code an insurance bill and hired a collection agency to hound and call repediatly a couple who had proper insurance.  Article 3. Forbes Magazine has chosen to call this the Tort-Reform for Hospitals.  In their article they describe that not-for-profit hospitals are obtaining significant benefit from directly suing their patients rather than working with the insurance companies or using low paying health insurance such as Medicaid. Our clients, and many other persons injured through no fault of their own  should worry.  Just because you have been financially stable and smart, it will not prevent  

Car wreck while on the job: Do I have to repay workers' compensation?

If you were involved in an automobile wreck, not your fault, while  workering for your employer in North Carolina, you may not have to pay the workers' compensation back the full amount of their lien.  Often the question comes down to fairness and the amount of the recovery, the relative fairness of the recovery and the the future medical expenses are just some of what must be considered. If you are in such an accident, please see an attorney who handles both workers' compensation and personal injury law as per N.C.G.S. 97-10.2 often a hearing can be held with your local judge to determine what, if any, that judge would require you to repay workers' compensation. N.C.G.S. §97-10.2(j) gives the trial court discretion to determine how settlement proceeds are to be distributed.  The trial court may reduce or even completely eliminate a workers' compensation lien if the facts warrant, and appellate courts may not interfere with such an exercise of discretion -- except in extreme circumstances in which discretion has been abused.  Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990); Sherman v. Home Depot, 160 N.C.App. 404, 588 S.E.2d 478, Rev. Den.; 358 N.C. 156, 592 S.E.2d 696 (2004). LEGGETT v. AAA COOPER TRANSPORTATION INC was one of the most recent cases on this issue and handled by O'Malley Tunstall, PLLC.  In this case the workers' compensation carreir had their lien reduced to zero and appealed.  The North Carolina Court of Appeals upheld the judges' ruling. In deciding whether to reduce or eliminate a workers' compensation lien, the trial court "is to make a reasoned choice, a judicial value judgment which is factually supported...[by] findings of fact and conclusions of law sufficient to provide for meaningful appellate review."  Id. Our Supreme Court has often stated the test to be used when determining whether discretion has been abused: Generally, '[t]he test for abuse of discretion is whether a decision' is manifestly unsupported by reason.' White v. White, 312 N.C.770, 777, 324 S.E.2d 829, 833 (1985), or, 'so arbitrary that it could not have been the result of a reasoned decision[,] State v. Wilson, 313 N.C. 516, 538,330 S.E.2d 450, 465 (1985).'  Little v. Penn Ventilator Company, 317 N.C. 206,218,345 S.E.2d 204, 212 (1986). Most recently the Court found no abuse in discretion in Sherman v. Home Depot, 160 N.C.App. 404, 588 S.E.2d 478, Rev. Den.; 358 N.C. 156, 592 S.E.2d 696 (2004).  In Sherman, the lien was $168,000.00 and the plaintiff had expended $169,806.00 in recovering $1,300,000.00 - the trial court reduced the lien to $55,667 (a third) and required the workers' compensation carrier pay their fair share of the costs in the amount of $56,602.  Id. In Allen v. Rupard, 100 N.C. App 490, 397 S.E.2d 330 (1990), rev. allowed, 328 N.C. 270, 400 S.E.2nd 449 (1991), the lien amount was $40,000.00; and the settlement was $25,000.00.  The court divided the settlement in half, with $12,500.00 going to the workers' compensation carrier and $12,500.00 going to the employee.  The Allen court considered the nature and the circumstances of the incident in which Plaintiff was injured, the nature and extent of Plaintiff's injury (a crushed vertebra which necessitated three surgical procedures on his back), and other circumstances in rendering its decision.  The Supreme Court found no abuse of discretion. In Wiggins v. Busranger Fence Co., 126 N.C. App. 74, 483 S.E.2d 450 (1997), Travis Wiggins was killed when a gate fell on him at the Raleigh-Durham International Airport.  It was anticipated that Mr. Wiggins' family would receive approximately $200,000.00 from his employer in workers' compensation benefits.  Mr. Wiggins' estate sued two fence companies claiming that their negligence proximately caused Mr. Wiggins' death.  The case settled for $900,000.00 prior to trial.  The trial court held that Mr. Wiggins' employer could not recover anything from the settlement and had no lien on the third party settlement funds.  The Court of Appeals found no abuse of discretion. In United States Fidelity and Guar. Co. v. Johnson, 128 N.C. App 520, 495 S.E.2d 388 (1998), Melvin Johnson, an employee of the Department of Transportation, died in an automobile accident during the course and scope of his employment.  The Department of Transportation provided workers' compensation benefits to Mr. Johnson's family totaling $148,955.00.  Mr. Johnson's estate filed suit against the third-party tort-feasor to recover damages for his wrongful death.  Mr. Johnson's estate received a total of $372,825.00 in settlement.  At the time of the settlement, the Department had paid $47,045.51 in workers' compensation benefits to Mr. Johnson's family.  The trial court completely extinguished the Department of Transportation's lien, finding that it would be inequitable under the facts and circumstances of the case to allow the Department of Transportation to recover the workers' compensation lien from the settlement proceeds.  The Court of Appeals found no abuse of discretion. In the case of In re Biddix, 138 N.C. App. 500, 530 S.E.2d 70 (2000), Kimberly Biddix was injured in an automobile collision caused by the negligence of a third party.  Ms. Biddix received workers' compensation benefits in the amount of $16,844.03 and temporary total disability benefits in the amount of $1,874.40.  Ms. Biddix subsequently entered into a settlement with the third party tort-feasor for $25,000.00, which were the limits of the tort-feasor's automobile liability insurance.  The trial court entered an order finding that the settlement did not adequately compensate Ms. Biddix for her injuries and eliminated her employer's lien.  On appeal, the Court of Appeals found no abuse of discretion.      

Introducing O'Malley Tunstall, PLLC: New Name same great Injury and Disability Firm

Susan O'Malley and Joe Tunstall are pleased to announce that their firm has been renamed: O'Malley Tunstall, PLLC. We have a new name for our firm; but we will continue to offer small firm service with large firm capability.  Susan and Joe look at this name change as a way to move forward into 2012 in a positive way keeping our focus on client service and at the same time solidify to our clients the continued existence of this hard charging injury and disability law firm. Susan O'Malley, who is a Board Certified Social Security Disability Lawyer by the North Carolina State Bar, will continue to run our Social Security Disability Section here at O'Malley Tunstall, PLLC.  Susan, whose resume as a disability attorney while extremely impressive, only touches on her true value to her clients as her experience handling Social Security claims is unmatched.  Susan continues to be available for referral or consultation for other attorneys in the area of Social Security disability law.  Prior to focusing her practice on Social Security and Disability law Susan successfully handled workers' compensation claims and jury trials for our injured clients, including being co-counsel on several multi-million dollar verdicts. Our automobile injury and commercial truck injury section will also continue to be lead by Joe Tunstall.  Joe has extensive jury trial experience representing the injured and disabled.  He has tried to verdict and judgment cases from $1 to $5,500,000.00.  Joe is available for consultation or co-counsel arrangements for injury cases. In addition to our automobile and commercial truck injury section, Joe manages our personal injury litigation and workers' compensation sections.  He actively associates with attorneys both within and outside of North Carolina for injury claims and handles referrals for all levels of litigation. Both Susan and Joe continue to be active handling client's appeals in the North Carolina Court of Appeals, North Carolina Supreme Court, Federal District Court and Fourth Circuit Court of Appeals.  Often Susan and Joe handle client's appeals without the appeal  costing the client any additional attorneys' fees.  Give our office a call and one of our attorneys will explain how. Therefore, if you have an injury or disability case, take a look at our firm or give us a call as one of our knowledgeable attorneys will answer your question.  O'Malley Tunstall, PLLC will continue a great tradition of client service.

Can Facebook or Other Social Media Affect My Case?

Can Facebook or Other Social Media Affect My Case?

Why should you review your homeowners coverage before you need it.

Sitting in my office in Tarboro talking to my law partner in our other office in Raleigh it made me think that with a hurricane and an earthquake in one week the old saying that if you don't like the North Carolina weather, wait a few minutes, it will change. After every major disaster in North Carolina, whether hurricane, fire, flood or ice storm my firm's phones are flooded with people trying to make sure they are doing the right thing.  The people who are calling are not trying to get over on anyone, they just want to find out whether they should call their insurance company, whether they have a claim and what they should do while waiting to hear from their insurance company and how to make sure they are following all the rules. In the great majority of disaster type claims, you are dealing with homeowners, renters or umbrella coverage.  Typically if it is a property damage claim on your own property, homeowners coverage is the insurance coverage upon which you will make a claim.  An exception here in Eastern North Carolina is if the damage was from rising water, then often a claim must be made on your flood insurance.  If you live anywhere near water, flood insurance is a must. Renters coverage is just that; coverage for your belongings in a house or apartment that you rent from someone else.  Typically, it is very inexpensive coverage and is a must for any renter. Umbrella coverage is a type of universal liability coverage above and beyond any homeowners coverage purchased.  Liability coverage is coverage in case  an action on your part causes damage to another.  It is used to protect your assets and can be combined with your liability coverage under your homeowners coverage.  Again, typically a one million dollar umbrella policy is very inexpensive. Homeowners insurance is a contract.  Please don't be one of those people who has never read their homeowners policy until they call after a disaster to discover what they have their property insured for and what they did not have insured at all.  Certain items are typically not covered on your homeowners, for example, most of the time the amount of jewelry or other incidentals you can be reimbursed for having destroyed by a limb through your house is very low.  Make sure you do a specific rider on your policy for any high valued jewelry. Guns are in the same position.  More than once a client has been upset that his wonderful gun collection cannot be recovered as the insurance company didn't have them on a rider and there was no proof of serial number or even a picture.  Also know your deducible.  Before making a $500 claim with a $1,000.00 deductible, make sure you think it through. The first thing we always tell our clients to do is take pictures! A lot of pictures! Video is also a great idea if at all possible before you begin the clean up and again during.  The biggest mistake you can make is to not document the problem in your hurry to get cleaned up.  Also, if further damage is created in a reasonable attempt to minimize your damage, it is often covered. After taking your pictures you can safely begin to clean up your damage.  Safety is the key.  If you get hurt cleaning up your property there is no one to blame or recover from but yourself.  Take your time and be very careful. After looking at your policy before the disaster and taking pictures of the results, you should call and report your damage immediately.  The earlier you report the damage the quicker an adjuster can come take a look and it reduces the amount of additional damage you may have to fix.  You also have a duty to mitigate or reduce your own damage and delay may result in a finding you have failed to mitigate your damages. Finally, be honest in your dealings with the insurance company.  Nothing throws up red flags (and denied claims) like exaggeration of the claim.  Don't just throw in something damaged in the past and expect it to be paid.  Remember, this is first party insurance and your insurance company has a duty to deal with you in good faith, so give them the same benefit. Bad faith is a type of claim that can be brought on your behalf against your insurance company if they fail to meet their obligations to you.  Again, documentation, especially in writing with pictures, is the best way to protect yourself.  The North Carolina Department of Insurance, which regulates insurance companies can also advise how to make claims against unfair insurance practices; however, our firm has handled many bad faith claims. If you have any questions, feel free to give our office a call.  800-755-1987  

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Raleigh Office
8300 Falls of Neuse Road
Suite 108
Raleigh, NC 27615

Toll Free: 800-755-1987
Phone: 919-277-0150
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405 North Main Street
Tarboro, NC 27886

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Phone: 252-823-2266
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