May 29, 2006

For the Kentucky Injury Lawyer: Top 5 Things to Do in Response to Unfair Settlement Tactics

TOP 5 THINGS TO DO
IN RESPONSE TO UNFAIR SETTLEMENT TACTICS

A memo for Kentucky injury lawyers:

As lawyers, we care deeply for our clients. We understand the struggles they endure as a result of their injuries. We also know that when an insurance company doesn't seem to care or doesn't take our client's situation seriously, it compounds our clients' stress and worry.

All too often, we are confronted with unreasonable and unfair settlement tactics. Our instincts tell us to react in a strong, adversarial manner. But to do so does not serve our clients' needs. Not only does the negotiation process break down, but it also provides the insurance company with a rationale for continued unfair stance in negotiation.

By continuing to act in a helpful cooperative manner, one of two things will happen:

a. The insurance company will continue to negotiate and will finally agree to pay your client a fair amount.

OR

b. The insurance company will continue to engage in unfair claims settlement practices through delay, denial or low-ball offers.

Obviously, option a is the preferable outcome. But if they choose option b, there is likely a claim under the Unfair Claims Settlement Practices Act. When this comes to fruition, your client's claim is much stronger when you have maintained a helpful, cooperative stance. On the other hand, if you reacted with bravado and bluster, contentious language or threats, the insurance company will use that to their advantage in defense of the "bad faith" claim. They will attempt to paint you as an unreasonable, greedy trial lawyer. Though you know you were just advocating for your client, juries are sometimes duped by the insurance company's argument that your actions justified their unreasonable conduct.

Hence, the following list of things to do in response to denial, delay or low-ball offers.

TOP 5 THINGS TO DO IN RESPONSE TO UNFAIR SETTLEMENT TACTICS

1. Maintain civility and cooperation.
Resist the urge to fire off a contentious letter threatening a bad faith lawsuit. That is the worst course of action you can take.

2. Explain to the adjuster why she is wrong, and why the offer is not fair.
Refer to items in the medical record which contradict her stance. Send extra copies of those pages from the record in case she overlooked them.

3. Tell the adjuster how the delay/denial/low-ball offer is impacting your client's life.

4. Ask her to explain/justify why the company’s offer is so low.

5. Ask if there is more information you could provide her with, and request that she reconsider her offer.


***AS WITH ALL NEGOTIATION COMMUNICATION WITH THE INSURANCE COMPANY, THESE STEPS MUST BE IN WRITING. YOU MUST FILL THE ADJUSTER'S CLAIM FILE WITH CORRESPONDENCE AND DOCUMENTS SO THAT SHE CANNOT LATER CONVENIENTLY REMEMBER THINGS DIFFERENTLY.***

May 4, 2006

For the Kentucky Injury Lawyer: U.S. Supreme Court holds Medicaid Reimbursement Limited

ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES ET AL. v. AHLBORN

“[t]here is no question that the State can require an assignment of the right, or chose in action, to receive payments for medical care. So much is expressly provided for by §§1396a(a)(25) and 1396k(a). And we assume, as do the parties, that the State can also demand as a condition of Medicaid eligibility that the recipient “assign” in advance any payments that may constitute reimbursement for medical costs. To the extent that the forced assignment is expressly authorized by the terms of §§1396a(a)(25) and 1396k(a), it is an exception to the anti-lien provision. See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 383–385, and n. 7 (2003). But that does not mean that the State can force an assignment of, or place a lien on, any other portion of Ahlborn’s property. As explained above, the exception carved out by §§1396a(a)(25) and 1396k(a) is limited to payments for medical care. Beyond that, the anti-lien provision applies.” (Emphasis added).