By: Attorney Melissa Winthers
Your own insurance company has a legal obligation to treat you fairly. In 2008, the Colorado General Assembly enacted new statutes
prohibiting first party insurers, with certain exceptions, from unreasonably delaying or denying payment of benefits. Under the statutes, a person whose insurance company has unreasonably delayed or denied benefits can recover attorney’s fees, court costs, and two times the covered benefit. This is a major shift from the standard rule that regardless of which party wins a lawsuit, each party has to pay his/her own attorney’s fees. It is also a major shift from the standard rule merely allowing the prevailing party compensatory damages—damages to make up for his/her losses. While punitive damages have always existed in Colorado to punish willful or reckless conduct, these new statutes punish insurance companies’ unreasonable conduct without requiring a showing of reckless or willful behavior. Thus, the statutes have some sharp teeth in ensuring reasonable behavior by insurance companies toward their own insureds.
The following is an example of how this would work: you are hit in a car crash by a person without insurance. Therefore, you have an uninsured motorist “UM” claim with your own insurance company. Your medical bills from the crash are $50,000. You have $50,000 of UM coverage, but your UM insurer only offers you $35,000. Your insurer has unreasonably denied you the coverage you bought and are entitled to. You sue your insurance company and recover $50,000 in payment of your UM claim. On top of the $50,000 award, you are entitled to payment of your attorney’s fees, payment of your court costs, pre-judgment interest, and an extra $100,000 (two times the covered benefit) as a penalty. In the end, your recovery could be well in excess of $250,000 all because your insurer failed to timely pay you the $15,000 it should have paid up front.
These statutes however have several exceptions. The exceptions include worker’s compensation claims, title insurance claims, life insurance claims and insurance policies governed by the federal law known as ERISA—the Employee Retirement Income Security Act. In sum, these first party insurance statutes require a standard of reasonable conduct by insurance companies toward their insureds, and a failure to do so results in significant financial repercussions for the insurers. Should you have any questions concerning this, feel free to contact me.
Melissa Winthers is a Denver personal injury attorney at Fleishman & Shapiro P.C. She represents people who have been injured in collisions and can be reached at 303-861-1000 or email@example.com
From Dr.Shaw’s Newsletter?
Every doctor has been challenged by patients that have spinal degenerative changes. These “normal” age related findings are usually discovered when a patient presents to the physicians office with complaints of spine pain and radiographs are ordered. The results come back with the diagnosis of spondylosis, arthropathy, degenerative disc disease, degenerative joint disease, etc and immediately the uninformed doctor assumes that the underlying cause for the pain is the degenerative process…a process which can take years to develop and has never been directly associated with spine pain as the primary causative factor. The March 2010 issue of the prestigious journal SPINE contained a study addressing exactly this issue and helps us to better understand that which most of us already know in the orthopedic and spine related professions.
This study looked at a subset of 187 participants that were chosen from the 3,529 participants enrolled in the Framingham Heart Study who underwent CT scan to assess aortic calcification. The study was designed to look at the prevalence of back pain in the population and then at the relationship between lower back pain and spinal degenerative changes. They looked for degenerative spinal changes in the population and related it to the existence of lower back pain. 104 men and 83 women, with a mean age of 52.6 years, participated in the study. There was a high prevalence of intervertebral disc narrowing (degenerative disc disease) (63.9%), facet joint osteoarthritis (facet arthropathy) (64.5%), and spondylolysis (degenerative joint disease) (11.5%) in the studied sample. Only spinal stenosis showed statistically significant association with LBP. All other degenerative processes were no more prevalent with back pain than people with otherwise healthy spines.
The authors concluded that ”Degenerative features of the lumbar spine were extremely prevalent in this community-based sample. The only degenerative feature associated with self-reported LBP was spinal stenosis. Other degenerative features appear to be unassociated with LBP”.
While this is not the first study to report this finding it is the most recent and because it comes from a very well respected journal it should carry some weight. Some will argue that the study only looked at the lumbar spine for lower back pain and therefore did not address the cervical spine. While this is true, and the cervical spine is a completely different structure, much of this can be extrapolated to the entire axial spine and even extremity joints. Spinal degeneration alone is generally benign and usually an incidental finding. However, there are some known facts about the degenerative joints that must be considered when discussing causation, severity of injury and prognosis,
Degenerative joints are associated with hypertrophic spur formation. This spur formation is usually the result of some degree of joint laxity. This laxity alters the normal mechanics of the joints. In the spine the laxity commonly originates from loss of disc height and/or over use. It also comes from normal aging, postural stresses, and traumatic insult. The development of arthrosis and spondylosis is a protective measure by the body to stabilize the spine and protect the delicate neurologic structure that the spine protects. The stabilization resulting from the process results in connective tissues and joints that are less elastic and more vulnerable to injury than the healthy tissues that have the normal viscoelastic and biological properties. Although not necessarily pain productive on its own, these stabilizing connective tissues are more vulnerable to injury as a result of their lowered capacity to withstand rapid stretch, shear, compression, traction and rotation. Therefore, a sneeze, a cough, a fall or a motor vehicle collision in a person with a degenerative spine will have a greater probability of sustaining a more serious injury than a healthy person, even if both were asymptomatic beforehand.
Obviously, the greater injury potential and the existence of poor quality connective tissue lead to a longer healing process and offer a less optimistic prognosis. People with pre-existing degenerative changes that are otherwise pain free will require longer period of care and have lesser probability to reach the same level of outcome as a healthy person. In the absence of forces that overcome the supportive spinal tissues these people have no greater likelihood of developing pain in the spine than do people without degeneration (unless they develop degenerative central stenosis).
Professionals working with traumatically injured people need to understand these principles. That means health care professionals as well as the attorneys that represent their legal considerations. Hopefully, the knowledge of these facts will result in better outcomes for their health… and their case.
Author: Dr. Trent Artichoker
by Melissa Winthers
I was recently approached by a chiropractor about a problem he was having regarding a lien. This chiropractor had provided care to a patient under a lien agreement signed by the patient. The chiropractic bills totaled approximately $2,200, and the patient’s care was completed. The patient subsequently retained a personal injury attorney. Upon learning this, the chiropractor sent his lien agreement to the attorney. The chiropractor requested that the attorney sign the lien agreement. The attorney refused to sign it. The attorney did not give a reason for refusing to sign it. The attorney did not indicate that the lien contained objectionable language nor did the attorney contend that the charges were inappropriate or unreasonable. The attorney simply refused to acknowledge the lien. This is when I received a call from the chiropractor. I began by sending a certified letter to the attorney with a copy of the lien. I indicated that regardless of whether the attorney chose to sign the lien agreement, the attorney was on notice of it. I indicated that under Ethics Opinion 94, the attorney had an obligation to hold the money in trust. Several months later I received a letter from the attorney acknowledging that the personal injury case was concluded and offering to pay $500 of the chiropractor’s charges. Upon discussion with the chiropractor, I rejected this offer. I advised the attorney that this was not acceptable. I again reminded the attorney of the ethical obligation to hold the full amount of the bills in trust
The attorney then offered $800 as full and final payment. Upon discussion with the chiropractor, I rejected this offer. I advised the attorney to interplead the full amount of the disputed bills with the court registry. The attorney subsequently ceased communication without sending payment and without interpleading the money. The chiropractor therefore filed a complaint against the attorney with the Colorado Attorney Regulation Counsel. Not long thereafter, the chiropractor was notified by the Attorney Regulation Counsel that it had entered into a confidential settlement agreement with the attorney and that the attorney would be interpleading the $2,200 with the court registry. I received the Interpleader document and filed an Answer and Counterclaims on behalf of the chiropractor. The Answer indicated that the patient had signed the lien agreement directing the patient’s attorney to pay the chiropractor’s bills out of the settlement.
I attached the lien agreement and noted the pertinent language. I also made a claim for attorney’s fees and costs under the terms of the lien agreement. When the patient failed to respond to the Answer and Counterclaims, I filed a Motion for Default Judgment. The court awarded default judgment in favor of the chiropractor. The court will release the $2,200 from the court registry to the chiropractor within two weeks.
The chiropractor wanted me to share this story with you. His goal in sharing it is to let other chiropractors know that they are not required to reduce their liens at the mere demand of an attorney without good cause.
Melissa Winthers is an Denver Denver attorney at Fleishman & Shapiro P.C. She represents people who have been injured in collisions and can be reached at 303-861-1000 or firstname.lastname@example.org
by Attorney Melissa Winthers, Esq.
As year-end approaches, I try to get my house in order. You and your patients may do the same by reviewing your insurance coverages. Therefore, I thought it might be helpful to discuss the different aspects of car insurance coverage. Please feel free to pass this article along to your patients.
We all want to make sure that we are protected financially in case of an accident.Often when I ask people after a crash what their insurance limits are, they tell me that they have “full coverage” for accidents. In reviewing their policies, I have found that what this usually means is they have collision coverage to pay for vehicle damage or comprehensive coverage for things like hail damage or a break-in. But that coverage doesn’t protect you if you are injured.
The first kind of injury coverage in a car insurance policy is med pay coverage.It pays your medical bills regardless of whether you were at fault for a crash or whether someone else was at fault. It covers your passengers too. While med pay in the amount of $5,000 is now mandatory unless it is waived in writing, mandatory med pay does not apply to motorcycles. Med pay is very important to cover gaps in health insurance or allow you to pay providers that do not participate in your network. Med pay is obviously even more important if you don’t have any health insurance. One trip to the Emergency Room, and your med pay is gone. You can purchase med pay in an amount up to $100,000 through certain insurers. Others only sell med pay up to $10,000. Do your homework as the amount of med pay coverage being sold differs greatly between insurers.
The next kind of coverage in a car insurance policy is liability coverage. This is often referred to by your insurance company as BI coverage. This protects you if you cause an accident and someone else is injured. If you have assets that you want to protect, you should also consider purchasing an umbrella policy. Umbrella coverage provides coverage above your liability limits. I recently checked with one insurer which offered a million dollar umbrella policy for under $200 a year. A few insurers’ umbrella
policies include uninsured/underinsured protection, but many do not. If you are interested in purchasing an umbrella that also covers UM/UIM make sure this is reflected specifically in the policy.
The last, and arguably the most important coverage you can buy is uninsured/underinsured motorist coverage. Never reject it. This insurance protects you if you are injured by a driver who either doesn’t have any insurance or doesn’t have enough insurance. Buy as much U coverage as you can possibly afford. Because the state only requires at-fault drivers to have coverage in the amount of $25,000, U coverage is critically important. It is cheap compared to other coverages and it is the only way to protect you and your family if you suffer catastrophic injuries. I recommend that all my clients, regardless of their financial situation, buy at least $250,000 in UM/UIM coverage as the price difference between a minimum policy and a substantial policy is very little.
If you or your patients have any questions about your insurance policy or what it covers, please feel free to contact me.
Melissa Winthers is a Denver injury attorney at Fleishman & Shapiro P.C. She represents people who have been injured in collisions and can be reached at 303-861-1000 or email@example.com.