Re: Stupid idiot criticizes Wal-Mart

On Nov 22, 6:08 am, stephenj <s...@xxxxxxx> wrote:
Joe Ramirez wrote:
On Nov 21, 5:24 pm, Georgiana Gates <ram...@xxxxxxxxxx> wrote:

stephenj wrote:

Joe Ramirez wrote:

On Nov 20, 11:35 pm, stephenj <s...@xxxxxxx> wrote:

NewsToBeRead wrote:

http://online.wsj.com/article/SB119551952474798582.html?mod=hpp_us_pa...

The reason is a clause in Wal-Mart's health plan that Mrs. Shank
didn't notice when she started stocking shelves at a nearby store
eight years ago. Like most company health plans, Wal-Mart's reserves
the right to recoup the medical expenses it paid for someone's
treatment if the person also collects damages in an injury suit.

Sounds reasonable. Surely wal-mart has a right to recoup the money it
spent on medical expenses, or do you think they are obligated to just
give money away ...?

Until recently, many employers didn't vigilantly enforce the
provision, and some states and federal courts didn't think the claim
held water.

er, why on earth wouldn't it hold water? it's in the contract you ninny.

Subrogation aside, it's not uncommon for onerous provisions in
contracts of adhesion (contracts in which there is a large disparity
in bargaining power and the consumer is faced with a "take it or leave
it" situation) to be declared unenforceable or void as against public
policy. Simply saying that "it's in the contract" is no argument.

it's a damn good argument. just imagine if WM had tried to do that and
it wasn't in the contract. sheesh.

I do think it is right that any settlement received in a law suit should
first cover the direct medical costs. As I understand it, the law suit
amount was *less* than WalMart's medical costs, and thus the employee
was responsible for the balance. That doesn't seem right - supposing you
got a settlement of $1? Then you'd have to pay all the medical costs.

It seems like if you have $300K in medical costs, and a $200K
settlement, then giving the $200K to the insurance company makes some
sense. But not having to cough up the $100K difference.

If I have this wrong, I apologize, but I did think I had seen something
to the effect that *any* court award triggered *full* liability for the
medical payments to the insurer.

No, that's not how it works. The plaintiff is *potentially* liable to
the insurance company for the full amount of expenses paid by the
insurer, but only up to the amount of money actually received from the
defendant. The reason for this is that subrogation is basically a form
of indemnification; it's really the defendant that is responsible for
paying back the insurance company for the damages caused to the
company (the medical expenses) via the injury the defendant inflicted
on the plaintiff. The plaintiff becomes a middleman responsible for
passing money from a settlement or judgment over to the insurance
company.

good explanation.

BUT problems can arise when the settlement or judgment before the
plaintiff's attorney's fees is more than the amount of the medical
expenses, but is less than the med expenses after the attorney's fees
are deducted.

yeah - blame those greedy *** lawyers gouging 33% off the top. john
edwards fucks.

Actually, these days the typical contingency fee is 40%. Don't you
believe in capitalism? :)

Then the question of who gets paid first can become
crucial. I would think that the plaintiff would be liable to the
insurance company only up to the net settlement or judgment, not the
gross amount, but one of the cases cited in the article seems to
suggest a demand for more than the net amount. Another problem can
arise if the insurance company asks to be reimbursed for its own
attorney's fees incurred in the subrogation lawsuit against the
plaintiff. That could also drive up the company's demand above the net
amount of the plaintiff's judgment or settlement.

seems like the losing side should have to pay the winning side's lawyer
bills. that's an incentive to settle early without wasting the court's
time.

That's known as the "English rule" -- loser pays. The American rule
has always been that each side bears its own attorney's fees. To shift
them, you must have a statutory or contractual provision authorizing
an award of fees. Many big businesses put boilerplate into their
standard-form contracts saying that if they have to sue the customer
to get paid, the customer will be liable for attorney's fees as well.
It's basically an attempt to establish a private English rule in
business-consumer mismatches.

Joe Ramirez
.

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