When our clients receive severe injuries in a truck or auto accident, health insurance plans are usually involved in our case. We are notified by these insurance plans of the amount that has been paid and that the company wants reimbursement. Most states, including Georgia, have statutory or common law protection of accident victims by not allowing these companies to obtain reimbursement unless the accident victim has been "fully compensated" for all of their economic and non-economic human losses (ie. pain and suffering). However, if the health insurance company is a "self-funded" ERISA plan and the plan contains certain language disavowing the "full compensation" rule, the state law cannot provide protection to the victim amd reimbursement is permitted. This can obviously drastically affect the victim. There have been several horror stories that we have seen in other jurisdictions.

 In one case the health plan was able to take the entire recovery and the victim was left with nothing. This case went all the way to the U. S. Supreme Court. The insurance plan won and, was therefore entitled to the entire proceeds. Fortunately, this plan ultimately allowed the victim to keep her money. Public sentiment played a part in this decision. However, the point is that the ERISA plan won in court and the victim lost--An all too familiar story these days as a result of lawmakers protecting insurance companies.

The determination of whether a plan is a "self-funded" ERISA plan should be made by an attorney with expertise in this area. The decision to pay or not to pay should not be made based soley on what the health insurance company claims. Many claim "self-funded" status but they don't qualify either because they are subject to federal exemptions, or the plan doesn't contain the "magic words" required by the appellate courts, or the plan is not fully self funded. Lawyers experienced in this area will be best able to determine whether the health plan should be paid or not.  Skillful lawyers using persuasive legal arguments can often times reduce or even prevent the reimbursement payment through thoughtful negotiation.