Big, Bad Corporation: Wal Mart Picking On Brain Damaged Woman?
by BigJolly | 03/26/2008 9:02 am | Alert moderatorIn another example of left wing media bias, CNN reports that big, bad Wal Mart, a corporation that made a whopping $90 billion dollars is suing a brain damaged ex-employee.
Shank suffered severe brain damage after a traffic accident nearly eight years ago that robbed her of much of her short-term memory and left her in a wheelchair and living in a nursing home.
Two years after the accident, Shank and her husband, Jim, were awarded about $1 million in a lawsuit against the trucking company involved in the crash. After legal fees were paid, $417,000 was placed in a trust to pay for Debbie Shank’s long-term care.
Wal-Mart had paid out about $470,000 for Shank’s medical expenses and later sued for the same amount. However, the court ruled it can only recoup what is left in the family’s trust.
To quickly recap, a tragic accident happened to a Wal Mart employee. She was covered by the Wal Mart health insurance plan and the plan paid out $470,000 for her care. Her family hired a lawyer and sued the company that caused the accident and received a $1 million award. Of which her lawyer took $583,000, 58.3%. The Wal Mart health plan then sued to recover the money it paid out, as specified in the plan’s charter.
Take a look at how CNN reports this story. First, they include the fact that her 18 year old son was killed in action in Iraq after her accident. No question, this adds depth and color to the story but is it relevant to the matter at hand? Or does it simply lend sympathy to the cause?
Second, they totally neglect the money that the lawyer took, allowing him to paint Wal Mart as a corporate bully.
The family’s attorney, Maurice Graham, said he informed Wal-Mart about the settlement and believed the Shanks would be allowed to keep the money.
“We assumed after three years, they [Wal-Mart] had made a decision to let Debbie Shank use this money for what it was intended to,” Graham said.
“The recovery that Debbie Shank made was recovery for future lost earnings, for her pain and suffering,” Graham said.
“She’ll never be able to work again. Never have a relationship with her husband or children again. The damage she recovered was for much more than just medical expenses.”
Did they ask Mr. Graham if he had offered to defend them for free? Did he give them back part of the $583,000 he took away from the award? No, they just let him off the hook.
Third, what about the family? CNN reports their divorce as if it is what every American does when faced with a government rule.
The family’s situation is so dire that last year Jim Shank divorced Debbie, so she could receive more money from Medicaid.
I’m sorry for their circumstances, but that tells me pretty much what I need to know about their character.
Fourth, after determining that everything Wal Mart has done is legal, and walking through the court rulings, the CNN reporter says this:
Legal or not, CNN asked Wal-Mart why the company pursued the money.
In other words, why is Wal Mart picking on this poor family, especially when they made $90 billion in profit!
As Scott Peck wrote in The Road Less Traveled, life is hard. This family has gone through and is going through some extremely tough times. And there may be more to come.
But we need to be clear. Wal Mart is not in the wrong here. Every insurance plan I’ve ever signed up for has had a clause similar to that. Why should the employees and stockholders of Wal Mart be held responsible for something that was clearly not their responsibility? Simply because they have been successful?
96 Responses to “Big, Bad Corporation: Wal Mart Picking On Brain Damaged Woman?”
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March 26th, 2008 at 9:06 am
Im self-employed, so I’ve never had an insurance plan through a company… Why is it normal for them to sue to get back the money they dished out?
March 26th, 2008 at 9:15 am
Because Wal-Mart wasn’t responsible for the woman’s injuries. Wal-Mart’s insurance plan paid the expenses, pending a lawsuit against the trucking company that caused the accident.
Basically, this woman is trying to get paid twice for the same injury. That’s a fundamental principle of insurance…you only get paid once.
March 26th, 2008 at 9:17 am
I think that if you read your policy, T-Hawkk, you’ll find a similar clause.
The purpose, basically, is to put the burden upon the party that is responsible, in this case, the trucking company.
March 26th, 2008 at 9:23 am
#1, let’s look at in in purely monitary terms and at a slightly different angle.
You own an auto insurance company. A truck hits one of your clients who has comprehensive insurance through you. You pay on the policy to get them into a new car. A lawsuit is filed against the truck company. The truck company loses and pays $20K for the damages to the car. You have already given $20K in the insurance claim to pay for the damage. Since it was the negligence of the truck company that caused you to pay out the 20K and then 20K is awarded, who should receive the money?
Just pointing it out.
March 26th, 2008 at 9:30 am
Don’t suppose the CNN types thought about inquiring of the MO State Bar’s ethical practices committee if the attorney’s cut of the award was excessive, and is there any responsibility toward the client given the circumstances? Hope the bad publicity haunts this guy.
March 26th, 2008 at 9:31 am
#1 - this is common practice. When my daughter went to the emergency room for an injury sustained while at school, we received a form from the insurance company asking the circumstances so that, if applicable, they could recover the money they paid on our behalf.
March 26th, 2008 at 9:36 am
I find the headline totally inaccurate sdimply because it draws focus to Wal Mart and NOT the insurance entity itself.
The term ’subrogation’ is likely buried in the fine print of EVERY medical policy in Amerika. Should any medical attention needed be the result of a third party’s actions the insurance company has the right to seek reparations for whatever cash was outlaid.
As the survivor of a head on collision with a pick up truck and me on a motorcycle I’ve experienced this issue up close and in person. While the kid who hit me was at fault - it wasn’t long until my own medical insurance (who I had paid premiums to for over 7 years without ever filing 1 claim) tried to make ME pay for this $135,000.00 left leg.
Thank Gawd for a great biker / lawyer is all I can say!
March 26th, 2008 at 9:39 am
Um, Mr. Fish, sir, Wal Mart is self-insured and thus they are the insurance entity.
March 26th, 2008 at 9:48 am
survivor of a head on collision with a pick up truck and me on a motorcycle
How much brain damage was sustained by the driver of the motorcycle?
March 26th, 2008 at 9:56 am
Troll.
March 26th, 2008 at 10:00 am
Wal Mart paid her expenses and they are entitled to recover them. Congrats Kat, a lot of bikers don’t make it
March 26th, 2008 at 10:01 am
Also as a self insuring entity, if Wal-Mart agrees to pay this amount, they set up a de-facto policy standard and would be required to forgo a subrogation on any claims during the policy year and would have to write a new subrogation policy into their plan documents. If they do not, they would be subject to action due to policy discrimination. You see the same type of thing in COBRA administration.
March 26th, 2008 at 10:01 am
BTW I’m a nerd.
March 26th, 2008 at 10:02 am
Sometimes insurance companies are strange. The first year I was married I was going to file my prescriptions on my insurance. I filled out all of the forms and filed the normal 80% on my insurance. I then filled out my wife’s forms and filed the remaining 20% on hers, as is the procedure since you can not get back more than you paid. Her insurance kicked it back. I then filed on hers again for the full 80% and they paid it with no problem. Sometimes you try to do the right thing and …………….
March 26th, 2008 at 10:05 am
It is not surprising to see that most of the LST family gets it, but CNN doesn’t. As has been pointed out by BigJolly and the commenters, this is common, it is logical and it is fair. But CNN is more interested in redistributing wealth.
March 26th, 2008 at 10:11 am
#9 - Geez thnx for the concern
Since I sustained no head injuries (except for a few hairline scratches from various hat pins that were attached to my Aussie Outback hat as it ejected off my noggin at impact) - I still have these 2 lonely brain cells that Tim Leary kindly left me with…….
Kinda sad & pathetic that you’d choose such a snarky angle after having your hat handed to you as a result of what you CHOSE to incongruously post……..
March 26th, 2008 at 10:13 am
#8 - No kidding!
Well then I rescind my complaint regarding the headline!
(really doesn’t matter what ‘name’ a big medico insurer flies under - their gigs are to take and NOT give one more dime than they have to)
March 26th, 2008 at 10:17 am
My goodness. Was the lawyer working on contingency? Anything over 35% is generally considered high, and over 50% is usually considered an ethical breach.
It looks to me like her attorney didn’t get her a great deal and was excessive with his legal fees. He’s far more to blame than Wal-Mart.
Again, where was the attorney in all of this? It was his *JOB* to read the fine print. If he negotiated a settlement without checking the policy (and this was a pretty standard policy term) and, in so doing, negotiated a terrible settlement, then he should frankly be sued for malpractice.
March 26th, 2008 at 10:24 am
#15 NO DUH! The leftist CNN wants America to hate big corporations, especially Wal Mart. Why should they go after that poor person when their CEO makes millions? They can afford to lose $417,000, right?
It’s just a story to get us to feel bad for “the little person” and tax the rich and big corporations more.
March 26th, 2008 at 10:31 am
#9 Thin Gravy,
If you want to be a successful antagonist, it would probably behoove you to learn enough about html to implement a blockquote. It’s good for readers to be able to differentiate between your words and those you are quoting from someone else. Quotation marks at a bare minimum would be nice.
BTW… two words: corn starch
Thickens the gravy up quite nicely.
March 26th, 2008 at 10:31 am
16 Maybe incongruousness is out of order here. Several, including you, seemed uncomfortable with it. Though I can’t seem to find that hat you speak of I did successfully dodge a number of slings and arrows. But since it is you who feels slighted by a light-hearted inquiry as to your post-crash condition I will say that I am glad that you were spared the pain and suffering that Mrs. Shank has endured. That, sir is real sadness and pathos.
March 26th, 2008 at 10:42 am
Additional insured, waivers of subrogation, profits and losses, stockholder this, stockholder that. My company’s vision for this year is “The year of the Employee”. It’s about GD time.
March 26th, 2008 at 10:45 am
Actually, it’s not just libs who are slamming Wal-Mart for this. Today, I heard some “conservatives” on a (non-KSEV) radio station spreading the same manure as CNN. While acknowledging Wal-Mart’s rights and even the reasons therefore, their attitute was that Wal-Mart takes in hundreds of billions of dollars a year and they shouldn’t worry about a few hundred thousand dollars.
That makes about as much sense as saying Wal-Mart takes in billions so they shouldn’t worry about a few thousand dollars’ worth of merchandise taken by shoplifters.
I don’t know if some people are uninformed or just dense.
March 26th, 2008 at 10:46 am
#21 - Ah lighthearted is a good thing!(accurate semantics notwithstanding)
And the only reason I did not have to pay to re-build my own leg was the diligence of our Denver law dog who truly earned the ‘Dog’ (as in pit bull) portion of the nickname.
I’m also one of the RARE motorcyclists that actually got a perpetrator convicted and jailed for his ‘vehicular assault’ ( a low grade felony in Colorado) - at least that kid did 90 days in the Grand County lock up and 3 years probation. He’ll never legally vote or own a firearm neither.
I’d have been much happier if his liability had been more than the Colorado mandated minimum of $100K……….which after the Lawyer’s tab I cleared $66,666.66 of…….so when one considers I avoided having to PAY over $135K for medical I consider that $33K & change very well spent.
March 26th, 2008 at 10:52 am
18. Owen
58% would likely be an excessive fee. However, I can almost guarantee you that a lot of that money is for expenses and experts. Unless they’ve been involved in litigation, people don’t realize how much cost is involved outside of fees. Depositions can be very expensive. There are fees involved in ordering medical records, and in copying them. There are fees owed to outside services for preparing exhibits and other litigation support aids. There can be travel expenses. And expert witnesses, which are always needed when medical issues are involved, are extremely expensive.
All in all, I’ve seen many serious cases where Plaintiffs incur six figures in expert fees and other expenses. That probably accounts for most of what seems to be an excessive fee in this case.
March 26th, 2008 at 11:00 am
18. Owen
Why are you assuming the lawyer negotiated a bad settlement? The story says the Plaintiffs were “awarded” about $1 million, which sounds like a jury verdict to me (though, I’ll admit, the media is terribly sloppy on reporting on legal matters and often use the term “award” with respect to a settlement).
The fact that Wal-Mart could recoup the money doesn’t affect the value of the claim. Certainly, that is something that is often discussed in settlement negotiations, but defendants usually take the position that any liens are the responsibility of the plaintiff. And juries are not told about liens like Wal-Mart’s because they are not relevant to the issue of how much the plaintiff was damaged.
There needs to be a lot more informaiton before attacks on this attorney have any credibility. It’s, of course, fashionable to bash attorneys, but that doesn’t mean the bashing has any merit.
March 26th, 2008 at 11:06 am
I totally agree that CNN is leftist slime and has an agenda that is obvious. I just didn’t understand the insurance.
I guess I’ve been lucky - I’ve never had to make a claim of any kind on my insurancec plan. I just keep dishing out the payments each month.
More phony journalists from CNN.
March 26th, 2008 at 11:15 am
25.
My last sentence in 25 should have read: That probably accounts for most of what seems to be the excessive part of the fee in this case.
March 26th, 2008 at 12:23 pm
BULL HOCKEY
The ins company, should not be allowed to get any money from the case. She and Walmart paid their ins. preimums but does she get them back if she never used them NO. That is what INS is for. it should be free if they get to take it back.
March 26th, 2008 at 12:26 pm
Insurance companies ARE strange indeed. I filed a claim w/ my insurance through my employer at the time to be reimbursed a portion of the fees I had already paid for in full - as was their policy. It was a fairly large sum but I had paid dearly for years their outrageous premiums.
The claim was approved and I received the check. Several months later I was notified by them that THEY had made a mistake, my claim was not covered and they wanted ALL of their $$ back!
It got ugly and several threats were made on both sides. I dropped their policy and never paid them back. And it in no way affected my credit. Screw ‘em.
March 26th, 2008 at 12:37 pm
LJHopkins, how many times should someone be compensated for the same claim? The woman had her medical bills paid by Wal-Mart. She then got money from the trucking company to pay those medical bills.
I have to repeat that, because it’s the crux of the argument — she got paid twice.
The purpose of carrying insurance is to recover one’s costs from a loss. Unscrupulous insureds should not profit from insurance, and that’s just what this woman did.
March 26th, 2008 at 12:38 pm
#30 I promise there would be a lot of lawyers that would LOVE to take your side on your case if it had to go to trial.
March 26th, 2008 at 12:38 pm
Insurance companies are nothing but crooks. We lived in a house for 17 years and only one small claim. But when the foundation cracked and was clearly covered by the insurance, it took 3 years and a letter from a lawyer to get the insurance company to pay up.
Then they did it to a retired widow next door to me with the same exact problem and same company. Once they realized who was helping the widow they didnt make her wait 3 years or get a lawyer. They simply paid up.
If Walmart is going to continue to pay for her needs then let them get their money back. But if they are cutting her off and taking back the money leaving them with nothing, then I am really torn….
March 26th, 2008 at 12:48 pm
Broc, if insurance companies are nothing but crooks, I assume you are fully self insured? Insurance companies provide a needed service, do some insurance companies make poor decisions on claims? Sure, but I would rather have insurance than not.
March 26th, 2008 at 12:52 pm
Broc,
Can you tell me the clause in your homeowner’s policy that covers cracked slabs? I know of many people that have to get their foundations repaired after 10-20 years due to settlement and never once has anyone submitted a claim to their insurance company.
March 26th, 2008 at 12:59 pm
29 and 31
Matt is absolutely right. The law generally frowns upon double recoveries. The law also smiles upon the person causing the harm being the one to pay for it. Here, the insurance company caused no harm - they paid for the women’s treatment. It is only right that if the real wrongdoing is held accountable and has to pay, then the insurance company should be reimbursed, since it is the one that paid for the treatment int he first place.
Besides, it is a matter of contract that the insurance company gets reimbursed out of any recovery from a third party wrongdoer.
Some people seem to want something for nothing, or don’t particularly care about the law or contracts. If someone wants to breach a contract with them, they scream and yell, but they seem eager to breach the contract themselves if they get money they are not entitled to.
March 26th, 2008 at 1:00 pm
Nope I am not self insured. Still does not change the fact that most of them would rather slap your crippled butt then give you a hand up.
If I pay a premium for 17 yrs I should not have to get a lawyer just to get my claim covered. There is more to the story as well. They sent out a company to pressure test a water pipe in the foundation, the tech told us the pipe was so bad that it would not hold any pressure at all.
Then we get a message from the insurance company tell us that the pipe tested fine and it was not their problem. So we got an independent company to run the same test and just as the original tech had stated, the pipe was shot.
They flat out lied to avoid paying a claim. Thats not a poor decision on a claim it was pure corruption.
March 26th, 2008 at 1:07 pm
#35
It was the pipe breaking in the slab that caused the slab to break over time. The crack ran along the water pipe. Thats the reason it was covered.
March 26th, 2008 at 1:07 pm
Broc, you’ve cited one instance of a bad experience, and you claim “Insurance companies are nothing but crooks.”
That’s absurd. Take a look at the reverse, and you’ll see:
I had to go to the doctor. I paid my co-pay. A few days later, I got a notice from my insurer, saying the claim had been approved and we’re all square. Thus, every insurance company is absolutely perfect.
My “absolutely perfect” generalization is just as valid as your “nothing but crooks” generalization. By the way, if they’re “nothing but crooks,” why do you insure your home?
March 26th, 2008 at 1:11 pm
What I am about to say will probably upset everyone, but that’s nothing new:
1. The contract with Walmart Insurance, I am sure, has every right to take the money in the poor lady’s account. Every Insurance policy has this “subrigation” agreement. That’s why whenever you go to the Emergency Room, you usually get a letter from the Insurance Company’s Lawyers asking how you got injured, etc. They are looking for ways to recoup the charges. My Insurance company will not pay Emergency Room charges without us filling out the form (or giving them a phone call).
2. I have to agree with RickG, the reason the “Attorney’s Fees” are so high is probably because of all of the costs that were associated with the litigation. Most probably these costs (Experts, Depositions)were paid by the attorney until the money was “paid out”, thus making the Attorney look like he made out like a bandit. Not to be a total attorney shill here, but how much time did he put into this? Weekend? Holidays? Overtime? etc. I promise you,it was a lot.
3. A good amount of that money was for future cost and care. This lady will require it. The money will have to come from some where. It wasn’t a matter of being “paid twice”, it was a matter of making sure she was cared for somehow. By taking that money away, it will need to come from somewhere. The husband can’t do it (he is working 2 jobs), so he divorced to make her “indigent” and she would qualify for Medicare/Medicaid. I don’t think that is a matter of “bad character”, he is just trying to provide and work the problem. He is still with her. He has not abandoned her. He is just trying to make sure she is cared for as best as possible. (By the way, this is done more often than you think by elderly couples.)
4. The son is killed in Iraq. While CNN made this point to just twist the knife, so to speak, it also goes back to “how to provide for this lady”? The son can’t help, he’s dead.
5. If I were in charge of Walmart, this is what I would do:
a. Take the money, per contract.
b. I as a well paid CEO of Walmart or as one of the fabously wealthy members of the Walton family, would give this family a check the next day for $300,000 to take care of this lady. I might even fly into town and hand it to them personally. I would want everyone to know how much we look after “our own Walmart family”. (Note: make sure lots of news cameras are present.)
While this is not required, by law, it is the right thing to do. I think if we all just did the “right thing”, (which isn’t allways the same as the “legal” thing to do), this world would be a much better place.
It certianly would be a much more inspiring one!
March 26th, 2008 at 1:12 pm
Broc, I have a chronic illness that has me visiting doctors, hospitals, testing facilities, etc pretty regularly. Every insurance company I have had pays my claims in a timely fashion. There are a few things that aren’t covered that I wish were, but it is more than made up for by what is covered. If you think insurance companies are crooks, you try being the one who has to make literally life and death decisions about people you have never met.
March 26th, 2008 at 1:23 pm
I just love you LST regulars. You guys will take one statement a person makes and nit pick it to death just to get something started.
Ok Matt you are right I am wrong insurance companies are equally good and bad. I was simply pointing out an experience i had that was bad and because of it, yes it tainted my opinion of insurance companies.
So now you guys can find someone else to jump on because they say something harmless that apparently rubs you so wrong you feel the need to pile on. And I am sure none of you ever make generalizations. No that never is posted by LST folk. lol
Why do I insure my home, because you cant get a loan without insurance. I am not independently wealthy so I have to carry a mortgage.
Now that you have CLEARLY won a debate today you can pull your panties out of your crack drink a cup of warm milk and chill out. Its a post on a forum no need to get so worked up…..
March 26th, 2008 at 1:30 pm
Ree-C,
Should Wal Mart choose on it’s own to do something, that is their right. Probably would be good publicity but it is their choice to make.
As for the divorce question, yes, I know that some are choosing this route to defraud the government. Fraud is still fraud, regardless of good intentions. Laws should be changed if they are the problem. People shouldn’t arbitrarily break them.
March 26th, 2008 at 1:31 pm
#40 Ree-C
BRAVO!
March 26th, 2008 at 1:32 pm
Thank you Ree-C Murphey! It’s always about the company, very seldom what’s good for the employee.
Please no argument about no company no employee.
March 26th, 2008 at 1:35 pm
No company……
March 26th, 2008 at 1:39 pm
#43 How would you suggest the man provide for his wife if he loses the money to wal-mart?
March 26th, 2008 at 1:39 pm
BigJolly, I mean - If the company is not successful than there can be no employees.
March 26th, 2008 at 1:41 pm
Tis not mine to suggest gaddy. How about we just take a vote and make you pay for it? Just about as fair as saying that Wal Mart should.
March 26th, 2008 at 1:42 pm
#43 Elderly couples do what they must to survive and I don’t blame them one bit. They’ve been doing it for years.
Although I don’t know all of the facts, I knew an older couple who divorced because they couldn’t survive on their SS, were in poor health yet still had to work in low paying jobs (but not too many hours to disqualify from medicare) and it was just financially advantageous to be legally single yet remain very much committed and spiritually married.
They weren’t trying to trick anyone or commit government fraud. They were just trying to survive.
There is something seriously wrong w/ our system if this is how we treat our elderly.
March 26th, 2008 at 1:43 pm
I was commenting more on the fact that you were disparaging the husbands moral character because of the divorce.
March 26th, 2008 at 1:47 pm
#43 - Maybe they should sue the lawyer for over-charging them.
Was there no award for pain and suffering? It seems this money would be exempt from seizure.
March 26th, 2008 at 1:48 pm
LizBV,
That’s no different than saying prostitutes do what they do to survive. Or crack dealers. Or bank robbers or any other person breaking the law.
March 26th, 2008 at 1:49 pm
gaddy, if that was your point then your question was wrong.
In case you missed it, she is no longer his wife.
March 26th, 2008 at 2:05 pm
#53 Huh???????????? Two adults living together for whatever reason is not at all the same as breaking the law by being a prostitue. Their moral character is not in question.
March 26th, 2008 at 2:07 pm
Didn’t their lawyer inform them that he would take so much and they would have to pay back the rest? If Walmart does this for one, they will be expected to do for all. It’s a terrible situation for a family, but not Walmart’s responsibility. Let CNN take up a collection, if they are so upset. Surely, there are people working there who make great salaries. Maybe they could have a bake sale.
March 26th, 2008 at 2:07 pm
It’s a sad fact some elderly couples have to resort to that, but it is in no way illegal.
March 26th, 2008 at 2:23 pm
BigJolly:
I didn’t say that Walmart “had” to do this; they “should” do it, as in “it would be the right thing to do”.
As for this couple, sorry I don’t see it as fraud. If it were, they would have been arrested pronto. In other words, they probably did it within guidelines. I would guess the caseworker told the guy to divorce his wife. Again, I’ve seen that happen. I was told by a Medicare/Medicaid caseworker that there is no crime/fraud in “planning for poverty”.
March 26th, 2008 at 2:27 pm
How is changing your technical marital status for fiduciary gains while not changing your marital relationship not fraud? This is the same as two people representing themselves as being married for medical benefits when they are in fact not married. While it may not be illegal, it is definitely unethical and a debasement to the meaning of marriage.
March 26th, 2008 at 2:37 pm
Who’s getting worked up? I’m coolly discussing how the insurance business works, while you froth at the mouth about how insurers are “nothing but crooks.”
Don’t get me wrong, I hear what you’re saying. No one likes crappy service, be it from Mickey D’s or from HugeCo Insurance. But way too many people are way too eager to say “hey, I got bad service, so this lady is entitled to steal.”
March 26th, 2008 at 2:42 pm
On a happy note, the uncouple may not be able to collect much of anything anymore. Seems social security is in the news as being an empty account, and social programs will probably follow.
March 26th, 2008 at 2:44 pm
It never ceases to amaze me how eager some folks are to say what is the ethically proper thing to do with another person’s (or company’s) money.
March 26th, 2008 at 2:48 pm
It seems to me that Walmart should have joined the suit and requested reimbursment of past medical costs, future medical costs, loss of ability to earn, pain and suffering, and attorney fees. Someone did not do the whole job.
March 26th, 2008 at 2:55 pm
I vote for gaddy to pay for her care! If not gaddy, then maybe Bill Gates or Warren Buffett, as they have too much money.
March 26th, 2008 at 3:26 pm
#59 Duhmoose, Do you really think they WANTED to go thru the hassle and expense of a divorce, let alone the emotional pain involved? Of course not.
#58’s (Ree-C’s)
is the comment of the week imo.
March 26th, 2008 at 3:44 pm
Oops, sorry BigJ - we got off topic. This originally was about Wal Mart, insurance and the double payment to the injured woman.
March 26th, 2008 at 4:24 pm
RickG,
I’ll grant that other fees and so fouth could have driven up the attorney’s fees.
However, there’s usually a pretty basic principle in PI firms that you try your best to ensure that, at the end of the day, the client actually receives some money. Otherwise, you’re just wasting the client’s time.
In this case, the attorney basically said that he thought Wal-Mart wouldn’t try to recoup its money. Apparently that unfounded assumption — which he didn’t share with his clients — guided his actions. He should have always assumed that Wal-Mart would pursue what it paid out in healthcare costs and advised his client accordingly. Accordingly, he acted improperly.
Finally, the attorney is jumping on the anti-Wal-Mart bandwagon, even though he made out quite well. Assuming a standard contingency fee contract, he received over $300,000 in fees. Even if he billed something like 2,000 hours in the case (and I doubt he billed anywhere near that amount), he was still very well compensated. So why shouldn’t he be cutting his fees, if he cares so much?
I’m just saying that the attorney seems more to blame here than Wal-Mart.
March 26th, 2008 at 4:25 pm
Actually there is plenty of fraud in planning for poverty. One only has to look at how corrupt Medicaid/Medicare/Welfare is.
It’s interesting that it’s okay to bilk the taxpayer if you are old and poor.
March 26th, 2008 at 4:38 pm
RickG,
I just found out that the article is probably wrong. Elsewhere articles say that the “award” was actually a “settlement” and that the settlement was for $700,000. That makes the attorney’s fees (and costs of litigation) seem pretty reasonable.
March 26th, 2008 at 5:41 pm
LOL - This write-up comes up in google news…
March 26th, 2008 at 5:56 pm
The only point that seems wrong, is the likelihood, that policies are written in such a way, as to be able to recoup in this way: Since the Actuarial guys can’t possibly plan on money on the table from somewhere else for the insured to ‘recover’ from; I’m sure they bet that ALL accidents would be with uninsured motorists etc….. Other than the timing of their payment from the insurer after the accident; what benifit did they get from someone having bought and paid for that policy? they ( the injured)should get their money back!
March 26th, 2008 at 6:02 pm
67. Owen
LOL. Practice for a few years and then get back to me.
Maybe things are different in Looneyana, but I doubt it. You make a statement about the way things ought to be, and I am telling you it ought to be that way more often.
Some of the PL’s attorneys I know genuinely feel that way and bend over backward for their clients. Other PL’s attorneys I know make sure something ends up in the client’s pocket purely and simply so it won’t look bad.
Cynical, but it’s the real world.
March 26th, 2008 at 6:04 pm
67. Owen
Who said he “cares so much?” Not me.
March 26th, 2008 at 6:57 pm
#68 -
Hey if ya start practicing your bilking early enough it gets downright easy by the time we get old!
hehehehehehehehehe
March 26th, 2008 at 7:39 pm
#68 OK BigJ - I was willing to agree to disagree, but you obviously won’t let it go… How exactly is choosing to divorce if you are elderly and poor, might stand to gain a few bucks per mos to buy food or medications and have no other options “bilking the tax payers when you have paid taxes all of your life”?
Is this not more of a spiritual/moral issue for you than a financial/earthly bound legal one?
March 26th, 2008 at 8:11 pm
Sounds to me like Wal*Mart behaved according to the law.
But I’m still troubled by the fact that their opportunity for recovery was only made possible by the independent and optional efforts of the injured. Had she not pursued the suit that resulted in the settlement, I seriously doubt that they would have taken any action to recover the money they paid for her medical care.
So really, who’s getting something for nuthin here?
It may be legal, but that doesn’t make it right.
March 26th, 2008 at 8:20 pm
Bob42, BigJ and I agree on the double payment by both the insurance and Wal Mart not being right. But we branched off into a disagreement about the husband having to divorce his wife in order to qualify her for being indigent and receive proper care.
March 26th, 2008 at 9:05 pm
And I’m looking at this from perhaps a different angle.
If the trucking company’s employee caused a loss to this woman in an accident, then the trucking company (or its insurance) should make good on that loss to this woman. If the trucking company’s employee caused a loss to Wal-Mart, then the trucking company should make good on that loss to Walmart.
What we are watching is the trucking company’s employee causing a loss to this woman and to Walmart, but Walmart is making up its loss off this woman (not the trucking company) after the trucking company makes good on its loss to her. If she hadn’t collected, Walmart wouldn’t be doing this.
Everyone would be outraged if this were purely about automobile isurance.
You run a car into your neighbor’s fence, and then run over another neighbor’s dog. You are normally responsible for making both losses whole.
The outrage is because you ran over one neighbor’s fence, and another neighbor’s dog. Your insurance is paying for just the fence, and the dog owner is collecting that insurance settlement from the fence owner for the loss of the dog. The fence owner got the shaft.
Walmart has resources sufficient to recover its loss from the party that caused it. This woman did not cause Walmart to incur the loss, unless being in an accident while covered by insurance is something Walmart should recover from.
More of the outrage is caused by the callous attitude this represents on Walmart’s part. Rather than write off $470,000 in the name of “taking care of its employees”, and perhaps getting an extra percent of sales out of the increased productivity, Walmart is doing this in front of a national audieence to demonstrate how this is a way to run a business.
Just another example of how Walmart spits on its employees.
And you can bet I will be double checking *my* employer’s group medical plan to make sure this can’t happen to me, and to be informed should I need to sue on both my part and (without recompense) for my employer should I be injured in an accident and sue to recover the loss.
What scum.
March 26th, 2008 at 9:17 pm
Wal*Mart didn’t pursue independent legal action against the party that caused the injury because they did not consider it worth the legal expense required to do so. The injured party assumed all risk associated with the litigation, and eventually settled. This made her an easy mark for recovery litigation, and Wal*Mart made a conscious and informed decision to gain recovery from the injured party.
Had she only received $5 in the settlement, they would have been legally entitled to it. Would they have gone for it?
So we might agree that it was legal… Is it the amount of the settlement that makes their actions it right?
March 26th, 2008 at 10:14 pm
I hate to say it, but I’m siding with Wal-Mrt on this one. Here’s why:
1. Everyone I know who has medical coverage is subject to a “coordination of benefits” clause or some such language that specifies that if a third party or insurer is liable for an illness and/or injury that the insurer can try and recover monies paid out for that illness/injury. Try and find medical coverage that doesn’t have that built into it. I bet you can’t.
2. The lawyer for this person negotiated full and final settlement for the woman. Wal-mart was left out of those negotiations. Since the settlement was final, Wal-Mart’s only recourse was to try and recover the money paid out from the person who was injured. In short, the lawyer screwed up, made a tidy sum in the process, and left the person he represented with NOTHING.
3. Wal-Mart may well look like the evil grinch here, but they are in a no-win situation. They either recover the money and look bad from a PR perspective, or let the woman keep the money, look good from a PR perspective, and then get the pants sued off them by others who they DID recover money from under similar circumstances.
Framing this as a moral question is erroneous. It sucks really hard for this woman and her family. I feel horrible for them, but they either proceeded on an erroneous assumption with blinders on or they fell prey to a bad/unscrupulous lawyer.
March 26th, 2008 at 10:50 pm
Maybe we should take back over the legislature tie up the runaway Lawyers and have a provision for the insurance to collect on the Lawer’s 1/2.
March 26th, 2008 at 11:05 pm
Wal Mart had to make a public precedent in this case. They can’t be financially responsible for all of their employee’s injuries off of the job if the employees are also going to sue and receive compensation from another party.
They could have taken the high road and a different approach, but they chose not to.
March 26th, 2008 at 11:13 pm
RickG,
Fair enough. In my meager experience, I suppose I’ve just worked for some particularly scrupulous plaintiff’s firms. My employers have usually kept a firm eye on the bottom line (although an unreasonable client can certainly blow their own case).
In any case, the article here indicates that the attorney wasn’t informing the client of all the risks of litigation, which is bad practice if nothing else. Of course, the article is quite possibly incorrect — as stated above, I’m pretty sure they misrepresented some key facts.
Not you — the attorney himself. He’s come down on Wal-Mart, basically acting as if they’re claiming more for reimbursement than they should. I understand he’s an advocate for his client, but it looks bad when his firm is still insisting on keeping their own fees while expecting charity out of Wal-Mart.
In short, Wal-Mart isn’t asking him to forgo his fees, so why should he expect Wal-Mart to forgo reimbursement for its health plan?
March 27th, 2008 at 8:48 am
LizBV,
It’s both because the one drives the other. Like I said, if you think the laws/rules are unfair, change them. Scamming the system because you’re down on your luck doesn’t make it right.
Maybe it’s because I was raised in a poor family. I watched my dad take care of my mother, no insurance, as she died an agonizingly slow death from cancer. It never occurred to them to get a divorce for an extra buck. If you would sell your spouse for a buck, what else would you sell for money?
As far as the man wanting to send his son to college, that’s a noble thought but there is another way. I had to work my way through, as did my brothers.
Blaming Wal Mart or any other entity for your struggles in life only exacerbates them.
As for the man’s character, like I said, his divorce tells me all I need to know. I wouldn’t loan him money or trust him with my possessions. Your mileage may vary.
March 27th, 2008 at 9:27 am
Now I see why Washington is the way it is.
The story dosn’t report on whether WalMart went after the trucking company. If they didn’t, then they decided it was easier to hit a sitting duck that one that was flying. Strike 1.
They are now outside of the statute of limitations for suing the trucking company as a co-plaintiff, I would think. Strike 2.
Walmart is issuing a group health care policy, which this woman participates in, and made medical payments under it. Most of the $1,000,000 judgment was not made for *past* medical care, it would have been for *future* medical care. So Walmart gets to sue this woman bcause they actually had to pay out on a claim. They are going to get to collect the portion of the judgment for *future* care. I wonder if they are going to continue coverage *into the future* to go with this, or whether they just cut off her coverage?
Guess what? The story reports that the rest of us are going to pay for it. Strike 3.
*Now* we have a good socialist agenda, but it’s being forced on us by a corporation that has gross revenues of $90B a *year*.
And lest any of the rest of you damn the attorney as an unscrulous scoundrel, let’s remember that he would have taken the original case on contingency, and that his fee includes any sums advanced to his client during litigation - such as medical expenses not covered by Walmrt’s coverage, the cost of expert testimony, etc.
Me, I think I’ll resist selling my soul to the business and political model Walmart and its political allies represents to the rest of you’all. At least for a few more years.
They’re scum.
March 27th, 2008 at 9:48 am
cchamb2,
You are confusing the issue because of the size and evilness of Wal Mart.
Suppose this lady had been employed by your local dry cleaners and was part of a small business group health care plan.
Would you be as angry at them for trying to recoup their money? Would you blame the dry cleaners?
March 27th, 2008 at 10:30 am
85 - Apparently you didn’t read my 80 - It seems to me that Wal-Mart’s options were severely limited by this lady’s lawyer who negotiated what was undoubtedly FULL AND FINAL SETTLEMENT leaving Wal-Mart high and dry.
Your health insurance has similar or identical clauses to Wal-Mart’s. Trust me.
March 27th, 2008 at 11:04 am
My car insurance (not sure on my health, but I’m sure it’s similar) if they pay for the claim, they typically go after the person at fault. Why did this woman hire a lawyer anyway? Wal-Mart would have done the suing?
Sounds to me like they got in touch with a lawyer who told them they could get more if they let him sue instead of the health care provider.
I too, blame the lawyer. It sounds like the injured party got bad advice. And she won’t be left with nothing. She did receive medical care. She just doesn’t get anything extra.
Now her coverage continuing … that’s another story.
March 27th, 2008 at 11:16 am
#31
that money for for taking care of her for the rest of her life
not for her previous bills
March 27th, 2008 at 11:52 am
Someone put contact information for Walmart in CNN’s comment section so all the outraged people could write/call their ojections. I tried to place contact information for this woman’s atty in CNN’s comment section and for some reason CNN decided not to post it….
March 27th, 2008 at 1:52 pm
89.
I don’t believe you are correct. At least some of the money - apparently a great deal of it, based on what Wal-Mart paid out for her - was to compensate her for past medical expenses, which is why Wal-Mart was entitled to recover it back from her. There are dishonest commenters who are spinning that the money was to take care of her in the future, but that isn’t quite accurate. They may have wanted to use the money for the future, but it was, in fact, paying (at least in part) for medical bills that the lady never paid but Wal-Mart did.
March 27th, 2008 at 2:03 pm
88.
She probably needed a lawyer to pursue claims that Wal-Mart would not have. For example, Wal-Mart, as a subrogee, would typically sue for repayment of the money it put out - ie, the medical bills. Wal-Mart would not be suing for the woman’s pain and suffering, physical impairment, etc., because Wal-Mart never paid her for those. So, usually, if she wants to recover damages for anything that was not an out-of-pocket loss, she would have to be a party. Otherwise, Wal-Mart sues only for the medical expenses and she gets nothing.
The way this was handled is not unusual; instead, it is the rule. Normally, the injured plaintiff will file suit to recover medical expenses, lost wages, pain and suffering, physical impairment. The spouse can also sue for loss of consortium (another thing Wal-Mart would never sue for). The insurance carrier normally sits on the sidelines, usually after having placed both parties on notice that it has a lien on any recovery and that it intends to enforce it. Happens every day.
Wal-Mart is doing nothing more than, for example, your workers compensation carrier would do. If you were hurt on the job by somebody else’s negligence, and get comp benefits, the insurance company who paid those benefits wants to be reimbursed out of any settlement or judgment the insured gets from suing the third party.
As a defense lawyer, I routinely get notices from insurance carriers that they want their money back in case the plaintiff gets a settlement or a jury award. Every time I discuss settlement with a Plaintiff’s lawyer (where insurance paid plaintiff something), that lawyer is always negotiating with insurance company to see if he can compromise the lien down to less than face value. And, guess what? Insurance companies are usually very flexible in this regard, and frequently take less than what they are legally owed just to help make a settlement happen.
So those folks who are suggesting this episode with Wal-Mart is shocking, unfair, unheard of, cruel, fraudulent, or what have you, they either don’t know what they are talking about or are pulling your leg.
March 27th, 2008 at 2:25 pm
83, Owen
Then, of course, he could be sued for malpractice. But, as you point out, it’s hard to know from the article exactly what the truth is. As I have often said, the media is notoriously bad when it comes to reporting legal news - most of the reporters aren’t lawyers so they have to rely on whatever spin the participants want to give.
I did not mean to imply that all Plaintiff’s lawyers are heartless money-grubbers. Some, sadly, are. Others care deeply about their clients. Still others are numbed after a lot of years of practice because, God love them, dealing with personal injury plaintiffs is very, very hard. Human nature tells us that no one feels my pain like I do. And most seriously injured people believe there simply isn’t enough money in the world to compensate them. That’s why so many of them are upset when they don’t hit the lawsuit lottery. I know of many times when Plaintiff attorney friends got excellent results under bad facts for their clients, and the clients still weren’t happy with the outcome, sometimes even filing grievances. As I said, the person who is actually injured wants many zeros on that settlement check, and if they don’t get all they want they feel victimized all over again.
March 28th, 2008 at 5:08 am
Actually, I like how it was put here:
http://www.concurringopinions.com/archives/2007/12/what_can_we_lea_1.html
====================
First, the WSJ incorrectly described Wal-Mart’s cause of action against Ms. Shank as a
subrogation claim. The WSJ stated:
In insurance circles, the recovery practice is called “subrogation.” Employers and insurers say
it’s necessary to ensure that medical expenses aren’t paid twice. By recovering those costs
from someone who’s been compensated elsewhere, they argue, they’re saving money for everyone
on the plan.
But this isn’t classic subrogation. Subrogation is generally thought of as an insurer’s right to
step into the shoes of the party whom an insurer compensates and sue any party whom the insured
could have sued. Wal-Mart isn’t standing in the shoes of Ms. Shank and suing the trucker, which
it almost certainly has the right to do. Wal-Mart is suing under a contractual provision which
gives it a right to sue its insured for indemnification and eschewing its subrogatory rights.
[Note: If WalMart had been involved as co-plaintiff in suing the trucking company, then a judge would be determining what WalMart was entitled to get, after taking into account WalMart’s position. We wouldn’t be having this discussion.]
Second, although Wal-Mart claims it needs this contractual right to prevent its insureds (the
Deborah Shanks of the world) from double recovering, Wal-Mart is using this right to take easy money. That is, there is no evidence that Ms. Shank recovered twice. Ms. Shank likely had claims
for pain and suffering, lost wages, loss of consoritum, etc. The settlement agreement could
have stipulated that none of the money was going to pay her medical bills and Wal-Mart still
would have had the right to sue her for indemnification. And Wal-Mart would have done so, because it is much easier to collect based on the clear contract language than in a subrogation lawsuit against the trucker. Think of it this way, presumably Ms. Shank settled for pennies on the dollar in her tort lawsuit, but Wal-Mart got nearly a full recovery from Ms. Shank. Why? Because Wal-Mart didn’t have to establish the trucker’s negligence or defeat the trucker’s tort defenses as it would have if it had brought the subrogation claim.
[Note: Put another way - it was easier for WalMart to wait and collect off Ms. Shanks than help Ms. Shanks sue the trucking company.]
Third, I wonder why Wal-Mart and other private insurers are doing this now, when the provisions apparently have been in the insurance contracts for years. One could speculate that private insurers feel emboldened to sue their insureds because Congress blessed this same practice for Medicare in 2003. As part of the same law that created the new Medicare prescription drug plan, Congress granted Medicare the right to recover
its from beneficiaries who settle tort lawsuits.
[Note: 2003 was when that nice young man from Crawford was in office. The history of WalMart’s approach to subrogation actually has its roots in the early 80’s with a Republican President and Republican congress, who implemented such a process in Medicare and Medicaid.]
Fourth, these indemnification lawsuits are justified as necessary to reduce the costs of medical insurance. But they might have an enormous impact on the civil and tort system. Injured parties have less incentive to bring and settle tort claims where they are forced to indemnify an insurer, because their expected
recovery is much lower. This undermines the access function of the courts and the deterrence and corrective justice function of tort, not to mention undermines the social policy for health insurance.
[Note: To make it clear, when you settle out of cocurt, you become self-insured, and your health plan becomes entitled to collect for any health care they provided you.]
==================
And, no, I am not a lawyer. YMMV. All that other stuff.
March 28th, 2008 at 11:51 am
#94… As RickG and Owen have stated, it probably was easier to wait to collect AFTER the trucking company was sued. If the plaintiff’s costs are indicative, it would not be smart for the Insurance Arm of WalMart to pursue a $400k claim by spending $500k. And, I think they also followed common practive in subrogative matters.
About the Republican Congress… The R’s didn’t control BOTH houses (at least im my lifetime) until 1994, but did win Senate Majorities for a term or two, in 1980 and 1984 (or was that 86?).
Now, WalMart has publically stated that they’d favor the government to take-over health care. In the meantime, it appears that they prefer to “self-insure” their employees, rather than cover them with a ‘normal insurance company’. Would we be paying attention if this were Allstate, Prudential, or someone else?
Point to ponder… what would happen in the event of National Health Care? Would she have sued the trucking company if Uncle Sam was picking up the tab? What would their liability cover?
I wish the family the best? Does Matt have an address where we can make a contribution? I wonder if that can be posted here… and at CNN.
Finally, in a bit of personal finance 101… its expensive, but this is why everyone should have Disability Insurance — it wouldn’t help with the medical, but would partially replace income in the event of an accident. And, of course, Long Term Care insurance when you go over 60.
God Speed and may she get better.
March 28th, 2008 at 6:17 pm
Why didn’t they (or did they) sue the trucking company for permanent damage (loss of earnings…etc) knowing that medical will be paid out by walmart? (She was an active employee at the time.) How much was the medical expense? What am I missing here?