LESSONS FROM LITIGATION: Damages and Pay Back
When you have been harmed because of someone else’s negligence, you have two types of damages that you can recover under the law: special damages and general damages. (We will cover general damages in a separate post). Special damages are those measurable losses like medical bills, rental cars, repairs, lost income, and other expenses that can be shown by a receipt, pay stub or on a spread sheet. In other words, when an insurance company offers you “specials” they are offering to pay the doctors and medical providers, from whom you had to seek help to recover. Often times these bills were paid by either your Personal Injury Protection (PIP) policy or your health insurance.
Here is what you need to know: Those insurance policies that paid for your care have a right to be paid back out of any settlement or jury verdict you might obtain. The technical legal term for reimbursement is “subrogation.” So, because you are the injured party, you are also in the best position to get reimbursed for all the losses for the harms caused by the negligent event, be it a car crash, medical malpractice, or other bad act. Because as the injured party you have the power to pursue a claim, you are also in the position of facilitating reimbursement to the insurance companies, which paid for your medical charges. A settlement or jury verdict creates a pool of money or what is known as a “common fund” under Washington Law. The insurance companies, like PIP that paid for your medical treatment, cannot just hold out their hand and say “give me.” The courts in our state have required that insurance companies recognize the efforts of an injured part to hire an attorney and pay out costs to pursue their case. If an injured party hires an attorney and is successful in getting a recovery, then certain insurance companies that are looking to be reimbursed must reduce the total amount they are claiming by recognizing the fact that you incurred legal fees and costs. That amount will vary from case to case. In other cases, particularly where your employer provided health insurance has paid for your medical care, that company may be entitled to a dollar-for-dollar reimbursement, because the US Supreme Court has ruled that many employer-provided benefit plans are governed under Federal and not State law. The law in this area can be very complicated.
Nonetheless the reality is that a settlement or award for “special damages” does not go to make you whole or to address the personal harm’s and losses you suffered because of another person’s negligence. That money for special damages must be repaid to the insurance companies which paid for the care and go to pay any outstanding balances for the doctors and therapists who treated you. Because of this reality, you need someone who will fight for more if you want to obtain a full recovery that can actually help you move on with your life.