Will Rogers, the 1930's actor and comedian, once commented that Thanksgiving was originally about people with very little, giving thanks for a barely adequate harvest. He went on to comment that people of modern times have so much, and yet even during Thanksgiving, seem to forget to be thankful.
As this article will be our last of the year before Thanksgiving, we thought it fitting to recognize the substantial improvements in Colorado injury laws that have helped us in the ongoing struggle to obtain justice for victims of injuries from car accidents. Our Colorado legislature has been incredibly receptive to these issues over the last several years and to that end we feel now would be a fitting occasion to give thanks.
There was a time, up until recently, that underinsured motorist
coverage wasn't really all that it should be. In theory, underinsured
coverage is supposed to pay an injured person the difference between the
actual value of his/her injuries and the minimal insurance coverage
already received from the at-fault party. But that is not the way this
coverage actually worked until recently. Until January 2008, insurance
companies would sell you a policy that would take an offset for the
amount the injured party received from the at-fault party before the insurance company
would pay one cent in underinsured motorist benefits. For example, if
you had underinsured coverage of $50,000, and you already received
$25,000 from the at-fault party, your insurance company would be
permitted to deduct the $25,000 you already received before paying one
dollar. Therefore, you would only be entitled to an additional $25,000
(at the most) in additional compensation.
However, effective January 2008, a single piece of legislation forever changed the definition of an "underinsured driver" to mean what it should have always meant--a person whose injuries exceed the available liability limits of coverage. Today, if you buy uninsured/underinsured motorist coverage for a certain amount, you get that amount without any offset for what is recovered against the at-fault party. So in the example above, you would be entitled to up to an additional $50,000 of underinsured benefits (if your injuries/losses supported it of course). Also, don't forget that the effect of this coverage allows a passenger in a negligent driver's vehicle to tap into underinsured coverage on that at-fault's vehicle, in addition to recovery of liability coverage, thereby doubling potential recovery.
For years, it was a challenge to assist injury victims who did not have health insurance to pay for needed medical treatment.
However, effective in January 2009, MedPay became a required feature of all auto insurance policies. MedPay is coverage that is devoted, regardless of fault, to paying medical and hospital bills. The new law also clarified that any benefits paid out under the Medpay portion of the policy did not have to paid back from settlement funds when a person obtains an eventual monetary recovery from the at-fault driver.
3) HEALTH INSURANCE - THEY ONLY GET PAID BACK IF YOU HAVE BEEN MADE WHOLE:
Since the No-Fault PIP laws expired in 2003, injured people have struggled with the notion that their health insurance could take a premium, pay for medical bills, but then be able to reach back into a settlement and take its money back when the injury victims settles with the at-fault party's insurer. This notion is often referred to as an insurance company's right of subrogation.
But effective August 11, 2010, groundbreaking legislation was passed that significally limited health insurer's subrogation rights. Today, regardless of what health insurance policy language says about being paid back for money it paid toward medical care, the right of subrogation is not absolute. Now, the threshold question as to whether a health insurer gets paid back from settlement money is whether the injured party was "made whole?" If the injured person was not made whole by the settlement, then the health insurer gets nothing.
There was a time when an insurance company could be rather reckless in its treatment of its policyholders without much in the way of any consequences for such unconscionable behavior.
As of August 5, 2008, our legislature enacted laws that say if the insurance company either unreasonably delays or denies a policyholder's claim, the insurance company is looking at penalties including doubling the coverage limits, paying attorney fees, paying all litigation costs associated with the case, and 18% interest.
For many years, it has been speculated that some insurance companies forewarn their at-fault policyholders that a lawsuit is coming. To that end, if a policyholder hides sufficiently from the process server, the lawsuit stalls. For the injury victim, this can delay and therefore deny justice indefinitely.
However, effective January 1, 2011, insurance policies will be required to include provisions that basically state that if the at-fault party cannot be located, then the insurance company must accept service of process.
Insurance companies will no longer be able to get away with assisting at-fault policyholders with stalling the case.
While the battles continue to achieve justice for victims, there are certain legal tools that attorneys who represent injury victims have been given over the last couple years that make us very thankful to our legislature. These efforts help us achieve justice for our clients.
On behalf of everyone at Anderson, Hemmat & McQuinn, we want to you wish you a Happy Thanksgiving.