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Is it correct that if you can settle a (in this case Pro se

action) OUT of court, you...
Is it correct that if you can settle a (in this case Pro se action) OUT of court, you do not have to repay insurance coverage payments? If not, what advantage is there to doing it?
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Answered in 5 minutes by:
3/7/2013
TexLaw
TexLaw, Attorney
Category: Personal Injury Law
Satisfied Customers: 4,430
Experience: Lead Personal Injury Trial Lawyer
Verified
Hi,

I am familiar with New York laws on this issue.

If your insurance company has paid benefits for your injuries which are due to another party, then the insurance company has a lien on any settlement and/or judgment against the tortfeasor. If the settlement proceeds are not larger than the insurance reimbursement that you would owe, you can negotiate directly with the insurance company to reduce its lien. The insurance company is often willing to do this because they realize that they might not get anything back if you are forced to go to court. Your only incentive to settle is if the insurance company will reduce its lien so that you get some money out of the deal.

Please let me know if you have any questions.

Thanks,
ZDN
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Customer reply replied 4 years ago


One carrier suprvisor asked me Who is going to tell us you settled for any money out of court? How does the carrier find out? Its not like there is a record? And from what I may understand, there is no benefit from settling out of court. If there is, what is that benefit, please? An example: A doctor is involved with negligence. The costs so far have exceeded $80K. If I were to settle OOC, it would be for $45. I get something for his screwup and lack of concern and he saves the remainder. No point. I am wasting my time and should just go to court and blast what he did on the net and hand out flyers in front of his office (freedom of speech. Information is factual. People can decide for themselves and I dont have to infer anything).??

First of all, if you did not pay off the insurance company, you would be committing fraud and exposing your self to both civil and criminal liability.

You settle out of court because winning a court case is a HUGE gamble. There is no such thing as a sure win in court. All kinds of things could go wrong and you could lose your case even though you shouldn't. All it takes is one juror who doesn't like your face and then makes everyone else on the jury hate you when they are deliberating. So you settle to eliminate that risk.

The other reason that you settle is because you get the money now, as opposed to spending tons of money litigating and possibly getting to go to trial 2-4 years later.

Would an insurance carrier ever find out? It's impossible for me to tell you that. I do tell you that they watch for these sort of things.
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Customer reply replied 4 years ago

The defendants attorney emailed me that I have Medicare. He wanted something from them saying what they spent. I do not trust him because I never told him I had that and they told me that information was private and attorneys do not have special access. Is this correct? Thank you. (SorryI take long to reply).

Thank you for your reply. Generally, this information is not actually private, especially if there was a signed release form for such information which was exchanged during the litigation.

Further, it is actually required by law to determine whether there Medicare has a lien on the settlement funds of a case prior to the release of those funds by a settling party. So the Defense attorney has a right to inquire and obtain information on whether Medicare has made any payments for medical treatment of injuries involved with your claim. If Medicare has made payments, then it must be reimbursed from the settlement funds under Federal law.
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Customer reply replied 4 years ago


I told him Medicare never received any billing. He does not accept that answer. He also asked me to send a letter saying I was not injured as I claim, saying that does not affect our original agreement (settlement) if I say I was not. He says this will 'speed' things up. This has been going on for 2 years now. Would you trust him? Can you give that opinion? I would send that paragraph (email without his name) if you are willing to read it. IF that is what he is doing, I then know what direction I am going in since I do not think he would want a judge to know what he has suggested. I did read it to an attorney at the bar. She said she could not get 'involved', but suggested I report him and she gave me the telephone number to that division. I have no interest in reporting him. I assume he is trying to see what he can get away with (my opinion). She told me he had no business asking me to make such statements. She then asked (rhetorically) Why else are you suing? Please advise as you can. This ONE answer can help allot.


 

It sounds fishy to me. I'd have to read the letter to tell you more. Go ahead and copy it in so I can take a read and give you my impression.
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Customer reply replied 4 years ago


Quote


 


Mr. :


 


Before we can address payment, we have to address Medicare. Before paying out any funds in personal injury lawsuits, companies are required to obtain a letter from Medicare, stating that Medicare is not asserting a lien against the settlement proceeds, arising from costs advanced for medical treatment of the alleged injuries. According to public records, you are a Medicare recipient. Can you confirm that you did not seek medical treatment for the injuries alleged in the lawsuit? If you confirm that you did not seek treatment for injuries arising from the incident alleged in the complaint, I will ask [the company] whether they will accept a document completed by you that will indicate you did not receive any medical treatment from the injuries in the complaint and did not submit any claim to Medicare in connection therewith. Please let me know as soon as you are able re the medicare issue, so that I can get the ball rolling on this.


 


As it pertains to the letter that was attached, I have to inquire with [the company], but will let you know their response shortly.


 


Thanks.


 


[ ]


 


PS – you do not have to be concerned about indicating in writing that you did not seek medical treatment for the injuries alleged in the lawsuit. We already have an agreement in place. My request to you was made solely to expedite compliance with the law pertaining to Medicare.


 


Unquote


 


We had agreed on an amount to keep out of court. He said I should receive payment shortly. When I tried to pin down a date, I got an email saying he found I had Medicare and wanted a letter from them saying what they paid (they were never billed).


 


I did not respond. This was the second, or third time he changed direction. When he sent this, while he speaks of treatment, I felt it equaled no injury. In any event, I did seak treatment (and xrays). I no longer trusted him. I felt whatever his agenda he should not have asked me to say what he NOW felt necessay. He has been emailing every other month since then.


 


IF he said the wrong thing, I would go to him asking he revise the original agreement ADDING this issue to the list (like never getting his client or register an elevator after 5 years. They would supply no injury reports prior to my incident, or after). His first 'deragotory' was to say I was a scammer and responsible for my own injuries. He also said his firm would sue me for legal fees. Since my incident was no scam, I said go ahead. We went from there. Pointing me in the right direction, would end this misery of 5 years. This is not blackmail. However, I have to go to pre trial hearing (I am asking for a delay, which they tell me the judge will read that day) and do not look forward to saying the points, or what he suggested I do. I feel then I will lose MY direction.

I would not trust this at all.

Did you receive Medicare benefits for medical treatment from the injuries? If so, then tell him that you did and that you would never sign a document stating what he is asking you to state.
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Customer reply replied 4 years ago

CAN we please forget Medicare. THEY WERE NEVER BILLED. They are secondary coverage, anyway. The primary supervisor said Who is going to tell us anyway if you get a settlement out of court?


 


As to my question about what he asked me to do, what I think you said is that he should not have asked me to write what he suggets. Even asking me to say I did not involve a carrier IS WRONG. So, IF I understand this, I can then say to him that I am asking the judge to delay the pre trial and giving you one more chance to settle this [pro se, no jury] action. SINCE you have reminded me about possible insurance payments I must add to the 'agreed' settlement amount to cover what insurance must be reimbursed. SOUND appropriate/logical? Some indication here would point me in the direction I am able to go in? Can you indicate that at all, or better for me? Thank you.,

Well, you can't really forget about medicare. If you have medicare, you have to have what's called a medicare "set aside" that covers future payments.

Regardless though, I do agree with you in that he should not have asked for you to state that you were not injured in writing. He is trying to set you up. I agree that you should ask for more money to cover the potential liens of any insurance carrier on the settlement funds. On the other hand, I would not delay trial. That would take away from the leverage you have. You need to be willing to go to trial and beat them, and they need to know you are willing and able, or they won't give you the amount you are entitled to in settlement.
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Customer reply replied 4 years ago

I LOVE YOU! Thank you.


 


I have hardship going to court. Not evidence issue. Disablities have me in bed 20 hours daily. Recently had diabetic foot surgery that will take 2 years to heal. He KNOWS I


am disabled and still has desire to 'play' games. I now wear a cast and one doc is trying to get me a mobility chair. That takes months (they want me 'off my feet'. Now how do you do that?).


 


IF I go to court, not knowing what a pre trial entails, I feel I may say what I have not all these years and loose my levarage.


 


I N O W can email him my response and if he then refuses to add to the 'agreement' I will do what I can in court, on the web, and through a poster and flyers in front of


their store in NYC. I have two relatives who are producers with two stations in NY and they have helped before. They will film 'one persons attempt' at dealing with a store who has a PROVEN history of ignoring NYC regulations and show little care for consumer safety. I know defamation and all. No need.


 


IF I succeed with this settlement, I will arrange to thank you in a more substantial way. You have helped me. I needed to hear an impartial assessment and you had the guts to give it. Chris.

No need to thank me more than you just did. I really hope you win. I hate these insurance lawyers and what they do to people just like you.

If you need help preparing your case for trial, we will be hear to help you through.

All I need you to do is rate my answer positively!

Good luck,
ZDN
TexLaw
TexLaw, Attorney
Category: Personal Injury Law
Satisfied Customers: 4,430
Experience: Lead Personal Injury Trial Lawyer
Verified
TexLaw and 87 other Personal Injury Law Specialists are ready to help you
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Customer reply replied 4 years ago


Sorry to bother again. The defendants attorney has not tried to contact me even though the pre trial is next week. I have sent a request with physicians letters for a delay until I get my mobility chair so I can do things like court (after September. This has been going on for 2 years already. The incident happened in 2008). Wouldnt he be concerned for a clerk being told he tried to get me to say there was no insurance involvement, or that I was not treated for anything (so there must not have been an injury?), or maybe he is playing a game of chicken? I was thinking of sending him copy of request for delay letter and telling him what I think of his tactics and giving him one more opportunity to resolve. Now, however, I must add $2500 for the insurance paybacks. Only fair. HE made it the issue. Any opinion apprecited. DId I mention my injury happened in an elevator that wasnt registered in NYC and has YET to be? That is a $15K initial fine. He doesnt seem impressed, or is trying to make me think that? Thank you.

He will not care what you say to a clerk. It only matters what you say to a judge. He's going to deny and try to wiggle out of the letter.

If you need more time for the trial, then you must submit a Motion for Continuance and ask for a delay because of your physical condition until the arrival of the mobility chair. Again, this will take the pressure off of the other side, but the pressure will come back again right before trial. I wouldn't expect there to be another offer until you are actually at the court house about to try the case.
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Customer reply replied 4 years ago

Yes sir, they got the letter today along with two physicians letters attached. Should I email him and let him know I sent the letter as a 'courtesy'?

Customer reply replied 4 years ago

Also, does it benefit me to (IF I can) change from pro se to a Small Claims action. Even adding more to a settlement, it remains under their limit. Maybe he would be concerned (trying to get him to resolve this) they would allow me to make a more simpler case than what is involved and he would lose to pain and suffering (adding the fact this has been going on for two years now after I filed)?

You need to copy the other attorney on each and every communication you send to the court. It's a rule (no ex parte commincation).

In regard to changing the case to a small claims action, that would be a "motion to transfer" that you would need to submit. If the same court that you are currently in also hears small claims cases, then this won't be a difficult matter. If what you are seeking is under the small claims jurisdictional limits, it would greatly benefit you to be there instead of in the trial court. You will not be required to give up any elements of your monetary damages, including pain and suffering.

-ZDN
TexLaw
TexLaw, Attorney
Category: Personal Injury Law
Satisfied Customers: 4,430
Experience: Lead Personal Injury Trial Lawyer
Verified
TexLaw and 87 other Personal Injury Law Specialists are ready to help you
Ask your own question now
Customer reply replied 4 years ago

I am sorry I didnt get a response email. Didnt know this answer was there. You are great.


 


Thank you very much for helping me. I wish I could follow up (new questions) with


 


you. YOU ARE DIRECT AND DONT WASTE TIME.

Customer reply replied 4 years ago


I need to know how to go from ProSe to Small Claims. Is it appropriate to ask a new question and ask for you? It is a new issue. I need any 'edge' on this fellow I can get. I would also ask please if you explain why SCC would be better for me than PS (clarification would help me deal with him better, I think, when he finds out). Thank you,

Customer reply replied 4 years ago

I tried sending question weeks ago, but I dont think you got it? Please tell me why switching from Pro Se to SCC would benefit me? Let me know if new question so I can post. Thank you.

Hi,

This is a new question.

Please go to my profile and click there to submit the question to me directly.

Put "For ZDNlaw only" at the beginning of the question.

Thanks,
ZDN
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TexLaw
TexLaw
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Category: Personal Injury Law
Satisfied Customers: 4,430
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