Legal Question in Personal Injury in Texas
My Blue Cross-Blue Shield employer group coverage is wanting me to reimburse them for monies I received from my No Fault Personal Injury Protection coverage I pay for on my own personal Texas auto policy. The accident involved me alighting from my vehicle in December, 2010 and my left foot hit a patch of ice and I fell from my Suburban, fracturing my left ankle in two places. Blue Cross Paid my covered charges less some copays and annual deductible. I contact my auto insurance carrier and submitted a claim under my PIP coverage for copays, cost of boot not paid for by Blue Cross, lost wages (two weeks). I submitted EOB's from Blue Cross and my company reimbursed me the full amount of the medical bills I submitted. My employer waived my requirement to use my sick leave and so I lost no wages or sick days. I informed my auto carrier I was withdrawing my claim for lost wages. In my Benefits booklet I received in 2002, the subrogation portion and it reads "Coordination of Benefits-Definitions 1. Plan means any group insurance or group-type coverage, whether insured or uninsured. This includes ... "governmental plans, or coverage required or provided by law". Plan does not include: "any coverage held by the Participant for hospitalization and/or medical-surgical expenses which is written AS A PART OF OR IN CONJUNCTION WITH ANY AUTOMOBILE CASUALTY INSURANCE POLICY; a policy of health insurance that is individually underwritten and individually issued; school accident type coverage;
The subrogation clause is the normal wording. When I asked the BCBS representative do they recover from policies like AFLAC he informed me they do not. I explained to him that there was no third party involved in my accident, that alighting from a vehicle is covered under PIP which I pay the premium for-it is a no fault type coverage. I read him the above wording that it was my personal auto policy that I paid a premium for this optional coverage that I felt they did not have a right to subrogation in this case. The representative said that by stating in the subrogation clause states "means the Plan may use your rights to recover money through Judgment, settlement, or otherwise from ANY PERSON, ORGANIZATION, OR INSURER. that they have the right to recover from my PIP carrier or I need to reimburse them what they paid out.
Thank you,
Sandy Bond
Shamrock, TX
1 Answer from Attorneys
Without reviewing the full policy and researching it, one cannot give you a specific answer.
The argument that there is "no third party" originally stems from insurers attempts to subrogate against underinsured/uninsured motorist policies. Those policies are considered "first party" insurance since the party insures itself. After many conflicting opinions in the courts, most insurers went to defining the term "third parties" within their policies to include first party insurance and that put an end to the debate. You may find such a clause in your blue cross blue shield policy.
I did recently have a case where there was a medpay policy on a homeowners case and the insurer tried to subrogate. I sent them a list of the out-of-pocket expenses of my client along with documentation of the bills and a nice letter stating that it was my position that they were not entitled to subrogation as a matter of equity because my client's pip was used to pay expenses that the health insurer did not cover. I further pointed out that the very purpose of insurance is so that the insured does not have to pay out-of-pocket. The bills I sent in exceeded their $5,000.00 limit. The insurer waived their subrogation claim without a fuss.
Also, for future reference, you should not put your name or email address in a public post where you are seeking legal advice. You do not want to waive attorney-client privilege.
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