Frequently Asked Questions About Personal Injury Cases

On average, Montanans spend over $1,200 for automobile insurance. Unfortunately, most people have little or no idea what they are buying and what they have purchased until they are in a hospital recovering from injuries from an automobile collision. Over the past twenty years at our office we have seen the consequences some people face when they try to save a few dollars on their automobile insurance. Decisions you make about automobile insurance coverage can have a devastating impact on your family. 

Automobile insurance has its own language. As I explain in my guide, Abandoned on the Road, insurance is no little different than gambling. It is based on odds and probability. The government has felt that spreading risk through legalized gambling is so important that everyone must participate. Unfortunately, most people do not know that “splitting tens,” at the black jack table and refusing underinsured motorist coverage from your insurance agent are both very poor decisions.

Bodily injury insurance is what most people think of as liability coverage. Bodily injury coverage protects you and your family in the event you are involved in an automobile collision and are obligated to pay other people for costs associated with their physical injury. Although we do not like to think about it, automobile collisions can lead to serious injury or even death. 

The mandatory minimum limits for bodily injury coverage in Montana are $25,000 per person and $50,000 per collision. These mandatory minimum amounts of coverage have remained the same for decades in Montana and do not begin to reflect the costs of medical treatment today. A single day in the Intensive Care Unit runs over $10,000. If you or someone in your family is in a collision with this minimum amount of coverage, you could end up financially ruined without sufficient coverage. 

A good rule of thumb to determine an appropriate amount of coverage is doubling the amount of total assets you and your family currently possess. This is the gross amount of assets and does not consider how much you may owe on those assets. Even a “broke” college student is going to see that the assets they possess exceed $25,000. For this reason, I recommend that the absolute minimum amount of coverage a person should purchase is $50,000 per person and $100,000 per collision. Any homeowner should have at least $100,000 /$300,000 in bodily injury coverage to keep from losing his or her home. 

About four years ago, I represented a young man who was riding his motorcycle when he was struck by a woman on her way to church. My client’s medical bills far exceeded the $100,000 insurance policy limit this woman had at the time of the collision. This woman owned multiple rental homes and her net worth was well over $1,000,000. For some inexplicable reason, she did not have an umbrella policy or enough automobile insurance to protect her $1,000,000 in assets. Because my client’s medical bills exceeded the insurance policy limits, we had no choice but to make a claim that exceeded her insurance policy limits. In other words, she placed her assets in jeopardy because she wanted to save a few dollars on insurance coverage. She literally stepped over a dollar to pick up a dime and it cost her. 

In order to protect your family, there are two critical questions you must ask your insurance agent.  You and your family have worked hard to build a life.  Asking these two very important questions of your insurance agent is one way to protect your future.

1. How much will an umbrella insurance policy cost?

One way to protect your assets is to purchase an umbrella insurance policy. An umbrella insurance policy provides an additional layer of security to people who own real property or have other assets that must be protected. An umbrella policy provides more protection (i.e. higher insurance limits) than many automobile insurance carriers are willing to provide for in traditional automobile insurance coverage. If you have been successful enough to have significant assets, you should be wise enough to purchase an umbrella insurance policy to protect those assets. Getting a quote cannot hurt. 

2. Is my uninsured motorist coverage as much as my bodily injury coverage? 

Uninsured motorist coverage protects you and your family in the event you are injured by the negligence of a driver who does not have motor vehicle insurance. About one out of ten motorists in Montana do not carry automobile insurance coverage at all. For some inexplicable reason, insurance companies offer uninsured motorist coverage that does not have a limit as high as the bodily injury coverage for the insured. Here is what that means: 

The insurance company protects other people more than they protect their own insured from uninsured motorists. That makes absolutely no sense. To fulfill your responsibility to your own family, and for a few extra dollars every year, you must protect your own family with insurance limits that are equal to the amount of insurance coverage you have provided to other people.

For some inexplicable reason, insurance agents are not adamant about getting their clients on board for an umbrella policy and ensuring that uninsured motorist coverage is at least as much as bodily injury coverage. Chances are you have made many wise decisions in the process of gaining assets over the years.  Purchasing sufficient insurance coverage is another wise decision that you must consider. Asking your insurance agent the above questions is a must. 

In the 20 years I have represented people in Bozeman, Montana, with workers compensation claims and personal injury claims, I have been amazed at the lengths with which insurance companies will go to try to drum up a fraud claim. Insurance adjusters are trained to believe that one in four claims made is fraudulent. There is absolutely no evidence to back up this statistic but brainwashing adjusters, especially the younger adjusters we see today is a good business practice. The use of social media has made the job drumming up bogus fraud claims easier for insurance adjusters.

When an insurance company receives your claim, the first thing they do is find your social media accounts. If you have a Twitter account or a Facebook page, your accounts will be found. If you are shown on the beach drinking beer, they will know. If you post images of yourself out hiking or having fun with friends after your injury, they will be used against you. I’ve had two jury trials recently where defense counsel introduced photographs of my clients from Facebook. The defense can introduce these into evidence without telling me or my client that they possess the photos in the first place. Shutting down your social media is absolutely critical and must be done immediately after an automobile collision because the information contained in your social media can and will be manipulated. 

It is critical that you not discuss your case on social media.  Contrary to popular belief, you have not won the litigation lottery. Your friends and families may believe otherwise. It is critical to keep the fact that you are involved in an insurance claim to yourself. Family members and friends may come to you with their hands out. To protect yourself, it is imperative to keep the status of your case to yourself and, should you receive any money, keep that information private. Anything you say about your case on social media will be manipulated and used to make you look bad.

In complete contrast to having won the litigation lottery, it is likely you will not receive a financial windfall. The money you receive will likely be sent to other people in the form of payment for future medical treatment and other costs. Shutting down your social media is an absolute must. You can still stay in touch with friends and family without posting on Facebook or Instagram. At our office, we insist on, at a minimum, placing your Facebook settings at their highest privacy level to keep the insurance company’s eyes out of your private life.  

As I have said before, the days of the sisters of charity healing the sick and comforting the dying are gone. Hospitals are big business in the United States in 2018. The way they treat Medicaid recipients is one indication of just how bad things have gotten. Below I discuss two ways hospitals are adding insult to injury for folks who live near the poverty line.

1. Hospitals practice “balance billing.” 

Balance billing occurs when a hospital or other health care provider receives money from Medicare or Medicaid and then attempts to bill you or your family for the difference. In other words, the health care provider wants to “have its cake and eat it too.” The practice is illegal but that does not stop some health care providers. 

Although health care providers cannot practice balance billing, they can forego payment from Medicaid either until the automobile claim is resolved or one year passes. If they do not make a claim within the one year (364-day) time period, their Medicaid claim will turn into a pumpkin and be lost forever. This is a risk most health care providers are not willing to take. Even if your claim does settle before the one year and the health insurance provider stand there with its liver-spotted hand out, you can still negotiate a final settlement on the bill. 

2. They refuse to accept your Medicare or Medicaid. 

Many types of treatment are simply not covered by either Medicare or Medicaid. For example, chiropractic care and acupuncture are not considered “traditional” medical treatment and Medicare and Medicaid do not usually cover this type of treatment. Unfortunately, these governmental health care programs would rather pay for opioids to treat your symptoms. 

If your health care provider refuses to submit your bill to Medicaid, they are assuming the risk that your claim will be successful and you will receive funds. However, as explained above, you are free to negotiate your bill with that health care provider. Not only are health care providers generally risk adverse, they often do not do as well negotiating with me as they do by just accepting payment from Medicaid.

I generally insist on the health care provider taking a reduction for attorney fees and costs that are commensurate with the amount they are billing. In addition, I reduce the amount owed by a percentage of funds that will need to be paid for future care. After including these factors, the health care provider typically receives less than the amount available by Medicaid. 

Will My Rates Go Up If I File A Claim on My OWN Policy?

 

Insurance companies want to scare you into believing that your rates will increase if you file a claim... It is a lie!

Insurance carriers want you to believe that if you use the medical pay portion of your own insurance policy, or if you file a claim under the Underinsured Motorist portion of your policy, your rates will increase. This is a lie! An insurance carrier may not increase your premiums for filing an insurance claim under the medical pay, underinsured motorist, or uninsured motorist portions of your policy. These policy provisions are based on a no-fault situation. If you did nothing to cause the collision, the insurance carrier cannot increase your premiums. This is because insurance carriers hire actuaries and assume a known risk. Because you did nothing to cause the automobile collision, making a claim under these portions of your policy cannot be used against you when determining an appropriate premium after you make a claim. If you think of insurance as legalized gambling, this law makes complete sense. It would make no sense for a roulette dealer to force you to increase your bet after you won. You would look for another casino if the dealer did this and a casino is always glad to take your money both before and after you win. The odds are always in the insurance company’s favor just like a casino. I invite you to read the following article. The author raises an excellent question: Why is insurance good but gambling is bad? Insurance companies are no different, no better, and no worse than casinos. The odds are always in their favor. The government requires you to play a gamve of chance. Insurance companies, like Allstate are now paying as little as 40% of the funds they receive on claims. Insurance was created to benefit a community by spreading risk, not to allow companies to reap massive profits.

To learn more about the claims process and to become informed as you go through the insurance gauntlet, I encourage you to visit our library on our website. We have guides, videos, reports, and other educational material. Everything in our library is completely free.

 

Under Montana law, if you and your family purchase automobile insurance policies for multiple vehicles for underinsured motorist coverage, and pay a separate premium for each of those insurance policies, you may be entitled to stack insurance coverages on top of one another. For example, if you and your family own five vehicles, pay separate insurance premiums for UIM coverage for all five vehicles, and have a 100/300 policy limit, you and your family may be entitled to five times the amount of coverage.

If you think of insurance as a game of chance, the law makes complete sense. You and your family paid good money for separate insurance policies and the insurance carrier agreed to accept the risk of having to pay on each and every one of those policies. Because the insurance company controls how the policy is drafted and its terms, the insurance carrier is in the best position to evaluate risk and loss. Understanding how insurance policies interact with one another and how they may be stacked can become complicated, even for attorneys who work in the field for 15 or 20 years. For this reason, if you are receiving benefits under an underinsured portion of a policy, your injuries are likely sufficiently serious enough to warrant hiring an attorney. I strongly encourage you to have an attorney evaluate your insurance policy.

Recently, attorneys have attempted to stack bodily injury insurance policies just as they do underinsured motorist and med pay policies. A number of district court cases have ruled that bodily injury policies may be stacked. The Montana Supreme Court has yet to weigh in on this issue. Because the law is fluid and is subject to alternative interpretations, it is a good idea to contact counsel to discuss these issues in greater detail.

Although Medicare and Medicaid sound similar, the programs are vastly different. Medicare is a federal program. Medicaid is managed by state governments. The Department of Public Health and Human Services manages Montana's Medicaid program. Following the introduction of the Affordable Care Act, Medicaid significantly expanded to cover more Montanans. Individuals who earn as much as three and four times the poverty rate may qualify for Medicaid. You may now qualify for Medicaid and not realize it. If you are earning less than $75,000 a year, it is worth your while to contact Montana’s Medicaid program to determine if you and your family qualify. Further, your children may qualify for the CHIPS program even if you and your spouse do not qualify for Medicaid.

Under Montana law, Medicaid may claim reimbursement for medical bills it paid for injuries sustained in an automobile collision. If you receive Medicaid benefits and any medical bills you incur as a result of an automobile collision are paid by Medicaid, Medicaid must be made aware of the automobile insurance claim so it can request reimbursement.

It is extremely important that you submit all your medical bills to Medicaid if you are a Medicaid recipient. Medicaid will immediately take care of your bills, allowing you peace of mind. The amount of money that Medicaid expects in reimbursement is significantly less than the amount of the bill. As I explain below, the bodily injury insurance policy of the driver who hit you is required to pay all your medical bills up front. If you have another method or means of paying these medical bills, the full amounts of the bills will be taken out of your potential automobile insurance claim. In short, as with health insurance, Medicaid recipients should submit all their medical bills to Medicaid for coverage. It is a waste for any Medicaid recipient to not submit all their bills to Medicaid.

Like Medicaid, Medicare also has a right to reimbursement for a portion of the medical bills that it pays related to an automobile collision. As with Medicaid, Medicare is willing to negotiate a settlement of the medical bills. For this reason, and for the same reasons Medicaid recipients should submit their bills to Medicaid, all Medicare recipients should also submit all medical bills to Medicare. Because reimbursement may be required, Medicaid and Medicare recipients must not spend money received for medical bills until a settlement is reached with the governmental organization. Both Medicaid and Medicare are willing to reduce the reimbursement amount to a figure that considers attorney fees and other expenses. In my experience, Medicaid and Medicare are first and foremost happy they are notified of the potential for reimbursement.

Someone who purchases a disability policy is 16 times more likely to qualify for benefits under the disability policy than his or her family will for a term life insurance policy. You may have heard of the AFLAC duck and AFLAC’s commercials concerning long-term disability. AFLAC is just one of many companies selling disability policies. You may even have disability coverage through your employer and not even know it. You may choose among many different types of long- and short-term disability policies to purchase.

It is important to understand that many disability policies require reimbursement. For this reason, it is vital that your attorney be fully aware of any disability policies you possess. In addition to the terms of the insurance agreement for a disability policy, that insurance policy may also fall under an area of the federal law called ERISA. For all of these reasons, it is critical that any attorney you hire be fully aware of any disability policy you purchased.

Under Montana law, a motorist is required to purchase only $25,000 of bodily injury coverage per person with a maximum of $50,000 per collision. To save money, many people purchase this minimum amount of automobile insurance coverage. When a person purchases an automobile insurance policy with these limits, it is the maximum amount of money the insurance company will pay regardless of the costs you or your family incur from injuries.

It is extremely difficult to get any more money beyond the insurance policy limits from a negligent driver. If a judgment exceeds the negligent driver's net worth, that driver may file for bankruptcy, leaving you with little more than the minimum insurance limits. Because litigation is so expensive, it usually makes little sense to pursue the negligent driver for anything more than the insurance proceeds they purchased, even when those proceeds are the mandatory minimum limits.

Of all the products available in an automobile insurance policy, the most valuable you can purchase is underinsured motorist coverage. The underinsured portion of an insurance policy provides for payment over and above the amount of the maximum amount available under the other person's policy. Typically, you can purchase as much underinsured motorist coverage as bodily injury coverage. In other words, if you purchase a $100,000/$300,000 bodily injury policy, most insurance carriers will allow you to purchase a $100,000/$300,000 underinsured motorist policy.

The most misunderstood term in the insurance industry may be “full coverage.” Most people believe they have purchased "full coverage" but have not purchased underinsured motorist coverage. Underinsured motorist coverage can be the most valuable policy a family purchases as it truly provides peace of mind that medical bills and lost wages will be covered following a serious collision. The next time you talk with your insurance agent, I highly recommend that you purchase as much underinsured motorist coverage as possible. UIM is relatively inexpensive and is the best hedge your family has against a financial catastrophe. However, as I explained above, your insurance carrier may become every bit as adversarial when you want to use underinsured motorist coverage as they are when defending against paying claimants for a collision where you are at fault.

UIM coverage extends to wrongful death claims. We have the highest rate of drunk drivers in Montana and are, per capita, one of the deadliest places to drive in the United States. Montana differentiates between a wrongful death claim and a survivorship claim, making an insurance claim much more complicated than necessary. Under Montana law, a person must survive for an “appreciable period of time” for his or her family to be eligible to receive future damages.