However, there is one big exception to the collateral source rule in Florida, and that is with regard to payments made by governmental agencies, such as Medicare or Medicaid. The general thinking is that while health or private insurance benefits are earned by a plaintiff with money from their own pockets – and shouldn’t be penalized for taking such initiative – those who obtain federal benefits as a matter of entitlement without actually earning it may not be entitled to the same protection.

In the recent case of Patchett v. Lee, the Indiana Supreme Court reached a similar conclusion. According to court records, the appeals court in this matter previously ruled that government reimbursement rates aren’t accurate reflections of the actual value of a health care service. However, the state supreme court reversed. 

Plaintiff was injured in a crash for which the other driver admitted her negligent driving was the cause. However, the two parties disagreed on damages or, specifically, what was the reasonable value of plaintiff’s medical care.

Both parties agreed that Indiana laws permitted plaintiff to enter into evidence accident-related bills that totaled $88,000, and that was evidence those amounts were reasonable. However, they could not come to an agreement regarding whether defendant could introduce the reduced amount that was actually paid by the government-sponsored health care program – which amounted to a total of $12,000, which fully satisfied the outstanding balance at an 86 percent discount.

Plaintiff moved to prevent jurors from hearing this evidence, arguing that payments made by government insurers weren’t permitted under the state’s collateral sources rule. The court agreed, and also concluded that evidence of this would only serve to confuse the jurors. Although the court granted plaintiff’s motion, it certified an interlocutory appeal for review to the appellate court. The trial court stated that resolution of this issue was critical to the importance in this case – and others – concerning a jury’s determination of damages.

The appellate court affirmed the trial court’s grant of plaintiff’s motion, saying the reimbursed amount was indicative only of market negotiation, but wasn’t probative or reflective of the actual value of services.

Defendant appealed to the state supreme court, which reversed.

The court noted firstly that what is a “reasonable” amount for a health care service for personal injuries can be proved in a number of ways. One of those ways is to present medical bills that reflect charges for certain services. However, if one of the parties contests the reasonable amount of those charges, then there is going to be more to the story.

Common injury law precedent in Indiana held that the collateral source statute wouldn’t prohibit evidence of discounted amounts to determine what is a reasonable amount, so long as insurance isn’t mentioned. Where the trial court went wrong in this case was to assume this only meant that those amounts negotiated between a health insurance company and medical provider applied. For the first time, the court held, amounts paid by government-backed insurance may also be presented to the jury.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Patchett v. Lee, Oct. 21, 2016, Indiana Supreme Court

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Schaefer v. Universal Scaffolding – Spoliation of Evidence in Construction Accident Lawsuit, Oct. 24, 2016, Car Accident Miami Lawyer

Take the recent case of State Farm Mut. Auto. Ins. Co. v. Jakubowicz. This was an Indiana Supreme Court case in which the insurer’s underinsured motorist policy contained conflicting requirements. On one hand, insureds were required to file their UIM claim within three years. On the other hand, insureds could not first file a UIM claim unless and until they had exhausted the insurance coverage of the at-fault underinsured motorist. There was no mention of how to proceed if the insurance coverage of the at-fault motorist hadn’t been exhausted by the time that three-year time clock was up.

When the terms of an auto insurance policy are ambiguous, claims can sometimes be negotiated fairly out-of-court with the help of an experienced attorney. However, there are many situations in which the insurer is not going to be satisfied to do that. Your car accident lawyer has to be prepared to take the case to court and fight, if need be. 

In the Jakubowiczs case, plaintiff and her two sons were seriously injured in a car accident with an underinsured driver.

For those not familiar, an underinsured driver is one who does have insurance coverage, but it is not enough to cover the full extent of damages suffered by the person injured. This is common, as some of the most serious auto collisions can result in hundreds of thousands or even millions of dollars in damages for medical expenses, pain and suffering, property damage and lost wages and loss of future earnings.

The statute of limitations on personal injury claims in Indiana is three years (it’s four in Florida). Plaintiff filed her claim against the at-fault driver one year after the car accident, seeking damages for medical expenses and property damage on behalf of herself and her sons.

Just shy of three years, she notified the insurance company she planned to file an underinsured motorist claim. However, it wasn’t until after that three-year mark that she formally filed a motion for leave to amend her complaint to include her own insurer and a claim for underinsured motorist coverage.

Trial court granted her leave, but the insurer soon thereafter moved for summary judgment, arguing the three-year time limit – per the language of the policy – was up and she had waited to long to file her UIM claim.

Plaintiff opposed that motion, arguing she didn’t have a choice but to wait because she hadn’t yet exhausted the UIM driver’s auto insurance coverage.

Trial court denied the insurer’s motion for summary judgment. The appellate court reversed. The case went to the state supreme court, which reinstated the ruling of the trial court.

In its finding, the state supreme court ruled that while insurers are free to limit the coverage in their policies, those limitations have to be clearly expressed in order to be enforceable, and they can’t be in conflict with other provisions of the contract. Where provisions that limit coverage aren’t plainly and clearly expressed, the policy is going to be construed most favorably to the insured – and that’s what happened here.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

State Farm Mut. Auto. Ins. Co. v. Jakubowicz, July 26, 2016, Miami Car Accident Lawyer Blog

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The term “discretionary function” is understood to mean a duty or function that necessarily requires the exercise of reason and discretion as to how, when or where the action should be done. Courts have struggled with interpreting this waiver because, to some extent, all most all duties require some discretion. Usually what is considered is whether mandatory regulations require certain specified conduct. So for example, there is some statute that indicates a government worker “shall” as opposed to “may” carry out some course of action. The second element is whether the decision requires some exercise of judgment based on considerations of policy.

Discretionary function immunity is sweeping in depth, and it needs to be considered prior to pursuing any personal injury lawsuit against the government. That said, it does not protect government agencies in all instances. 

Take the recent case of City of Beech Grove v. Beloat, an Indiana Supreme Court case brought by a woman who suffered a trip-and-fall injury on a public street and sued the city for negligent maintenance.

The underlying incident occurred in June 2012 as plaintiff was walking from her home to the library. She began crossing the street and as she did so, she took note of a pickup truck that had stopped a few feet into the crosswalk area. In order to avoid walking right into the truck, she stepped slightly outside of the crosswalk. Suddenly, she heard a snap. She fell to the ground. She looked down to see that her foot was stuck in a deep hole in the ground.

She was unable to get up and had to remain sitting in the middle of the street until two others nearby stopped to help her. One of these individuals drove her to the hospital. It was there she learned she had a broken leg.

Plaintiff filed a personal injury lawsuit against the city, alleging the city negligently failed to maintain the street and that her stepping into that hole caused her to fall and incur medical bills and pain and suffering.

The city responded by denying liability and asserting immunity under the state tort claims act. The city later motion for summary judgment, asserting:

• Plaintiff was unable to prove the cause of her injury;
• City was immune from the lawsuit per the discretionary immunity function provision of the state tort claims act;
• Plaintiff was contributorily negligent.

Although the trial court denied the motion, the appellate court in a split decision granted on the basis that the discretionary immunity exception applied.

The state supreme court granted review and vacated that decision. In so doing, the Indiana Supreme Court ruled the city had failed to demonstrate that the alleged failure to maintain the street was an a policy decision that was made consciously by weighing the risks and benefits – which is what it would need to show to be granted this immunity.

The case was remanded back to the lower court for trial.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Beech Grove v. Beloat, April 5, 2016, Indiana Supreme Court

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Study: U.S. Drivers Increasingly Dangerous, Distracted Half the Time, March 21, 2016, Florida Injury Lawyer Blog