Lien on Me: What’s a “lien” anyway?

Let’s start with a definition:

Lien: a right to keep possession of property belonging to another person until a debt owed by that person is discharged.

Notice that it’s a “right.” It’s not a document. It’s not a thing you sign. It’s a right, which has to therefore be enshrined in a statute.

This comes up a lot when health care providers are getting ancy about getting their bills paid after an auto accident. Sometimes the staff will say, “HE SIGNED A LIEN!” To which I have to respond, with the above definition and explanation. A lien is a right, it’s not a document.

Of course, while it is NOT a document, it is still a thing, but how does this thing exist? More importantly, when does it exist? In this context, the statutes that gives this right are North Carolina General Statutes §§ 44-49 and 44-50. But it doesn’t just exist because the provider wants it to; they have to jump through some hoops to “perfect” the lien.

First, the provider has to provide records AND bills FREE OF CHARGE when requested by the patient. Second, they have to assert the lien; that’s as simple as stamping the word “lien” on the paperwork they send free of charge. But they do have to do BOTH of those things to have a lien.

Remember that. There is no lien just because the provider wills it. The provider HAS to do BOTH of those things above for their to be a valid lien on your injury settlement.

Of course, mechanics liens and the like are different, but they are also created by statute and have hoops! They don’t just exist! They can’t bill summoned into being at will.

As with many things personal injury, this can be complicated and frustrating, which is all the more reason to consult an attorney. Call me at 919-929-2992.

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Medical Payments Coverage – USE IT, DAMN IT.

In North Carolina auto insurance, you have an option to purchase extra, no-fault coverage called Medical Payments coverage, or “Med Pay” as we generally call it in the biz. It’s like a tiny, limited health insurance policy for use with treatment of injuries associated with an auto accident. It comes in various increments, but normally we see $500, $1000, $2000, $5000, and sometimes $10,000, but you can have much more.

As mentioned, this is no-fault coverage. You can use it whether the accident is your fault or not. Where I tend to have frustrating conversations about this coverage is when a victim comes to me with an injury claim and they have Med Pay but don’t want to use it. Here’s the deal:

If you have Med Pay, you’ve PAID for it. It’s yours. The only trigger to get to it is suffering an injury by auto accident that requires treatment. It has nothing to do with fault, as it’s no-fault coverage. So using it WILL NOT trigger an automatic rate increase on your auto policy. If you are paying for it and have the opportunity to use it and refuse to, then I can only assume you think that your auto insurance company is a charity in need of donations because that’s EXACTLY what you’re doing. You’re giving them money for nothing in return. If you’re not going to use it, just cancel the coverage because there’s no point giving away that money for nothing. Or you could take my advice and use the product that you’ve already purchased.

Think about it this way: Let’s say you’ve had the same policy for 5 years, and let’s assume your $500 Med Pay costs you $50 every 6 months. At that point, you’ve paid $500 for your Med Pay. When you are in an accident, you can get that $500 back now and there’s no reason you shouldn’t. You’ve paid it in, and now the coverage is triggered. You’re entitled to it. Choosing not to use that coverage only benefits your insurance company. And trust me, they don’t need your help.

Call me if you need any guidance on this or any other personal injury issue. 919-929-2992.

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Did your car lose value after your accident?

When you’re in a car accident, you suffer a lot of losses. You get hurt, you lose time from work, you incur medical expenses, you have to get your car fixed.

And most of the time your car becomes worth less than it was prior to the accident, regardless of how well it’s repaired. Can you expect to get paid back for that when the accident isn’t your fault? Maybe.

First, there’s nothing written in stone here. Every claim is different, and tons of stuff can impact evaluations here. But for me, the rule of thumb is 5 years/50,000 miles. If you car exceeds either of those, you’re going to have a really hard time getting compensated for the diminished value of that car. The argument is essentially it was already old and losing value. And that’s a hard argument to beat.

But if you want to try it, you’ll be best served if you go into battle armed with an appraisal from a qualified DV appraiser. Yes, they cost money, but you tend to get a more quality expert opinion to make your argument with. It’s a heck of a lot better than, “But I just know it!”

Of course, like a lot of things in this world, it’s a bit of a gamble. Those appraisals cost money. You’ll spend between $100 and $400. So you probably want to make sure that you’ll at least get that back if you make this argument, which is all the more reason to make sure your car is on the good side of my 5/50k rule.

If you have a claim like this, seek the advice of an attorney. Most injury attorneys will handle your DV claim along with your injury claim, so get some quality advice and you’re more likely to have a better outcome. Call me if you like: 919-929-2992

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Two Injury Claims = Zero Injury Claims

There is some craziness in the universe that makes things happen in bunches. You might go your whole life without an auto accident and then BAM/BAM you have TWO within a few months of each other.

If you have injury claims related to both impacts, you are in for a world of hurt. Each of the accidents can be used by the other insurance company as a red herring to detract from your claim value. The first folks will say the second one cut off their liability, and the second one will say your injuries were related to the first one! It just sucks.

Depending on the facts, we might be able to help minimize the negative impact of having two claims so close together. But we can’t if you don’t let us!

If you are in this situation, get the advice of an experienced attorney. Call me at 919-929-2992.

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ERISA Health Plans and Your Injury Claim

NC is an anti-subrogation state, meaning that your health plan CANNOT come back to you after you settle a personal injury claim and ask for repayment of the medical expenses they covered.

However, there are exceptions to every rule. There is a Federal statute referred to as ERISA, and larger employers can set up health plans under this law, which trumps our state law. These ERISA plans are often self-funded and have a right of reimbursement, which means they CAN come back to you after you settle a personal injury claim and ask for repayment of the medical expenses they covered.

Why? Well, other than “that’s the law,” the best answer is that these self-funded plans aren’t insurance; they are a pool of money to which these many, many employees contribute and from which benefits are paid. So instead of it being insurance company money (who cares?!) it’s people’s money (we should all care!), and if there’s a way to get it paid back, that sort of makes sense.

Whether it makes sense or not is somewhat irrelevant in that it will undoubtedly affect your take-home amount from your personal injury claim. Not the end of the world, but it’s important that we know what we’re working with if you have one of these plans. If you don’t satisfy their claim, they can take away your coverage and leave you owing money. No good.

This is all the more reason to have a qualified, experienced personal injury attorney to help you investigate and ask the right questions so that you don’t end up any worse after your injury claim. Call me at 919-929-2992.

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Old Injury Worse or New Injury?

You’ve had a bad back for years, you’ve been to doctors here and there, done PT, chiropractic, all the things. You’re FINALLY starting to feel a bit better, and then WHAM! You’re in an auto accident.

These claims are, as the kids say, the worst.

You see, it’s SOOOO much easier to argue about the causation and value of a NEW injury as opposed to arguing the causation/value of the aggravation of a pre-existing injury.

First, it’s hard to prove that the accident caused anything, unless you are unlucky enough to have something that shows up on a diagnostic (which is the overwhelming minority of cases). Your back (or whatever) was already hurt; how can you prove that it got worse? Because you say so!?! Good luck with that.

Second, if you’re already hurting, then what should you be awarded for pain and suffering? You were already suffering, you were already in pain. How do you quantify the amount of increase in that suffering and pain? These are nebulous, diaphanous, hard to grasp sort of arguments and they can make your claim really hard to manage.

Look, I believe if you have an injury claim you could probably use an attorney’s help. If you have an aggravation claim, you almost certainly need an attorney’s help. Call me at 919-929-2992.

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Your settlement v. Your Bills

For many, many reasons, sometimes the settlement amount from your auto accident doesn’t really match up very well with your treatment costs. We can talk about why in another post. But the worry is that after you pay your bills you might not have anything left over for your pain, suffering, and inconvenience. Is there any remedy?

Yes, in fact, there is. This is one instance where the NC Republicans haven’t totally changed the law to the detriment of ordinary citizens. Yay!

NC General Statutes 44-50 and 44-51 offer you some assistance in this regard. I’ve cut/pasted it below for your edification, but in a nutshell, what it says is AFTER attorney fees, if the total medical bills protected by liens is greater than HALF of what’s left over, then you can take that total (after fees) and split it in half. Half goes to the victim. The other half is split pro rata between the lien-holders. What does that mean?

“Pro-rata” is a fancy way to say “percentage share.” Let’s look at an example:

10,000 Settlement. $3000 fee. $7000 left over. Let’s say the hospital is owed $3000, and the chiropractor is owed $2500 (both with perfected liens). If you take that $7000 and divide it in half, then you have $3500/$3500. That’s less than the total of the liens, which is $5500. So take $3500 and divide it by $5500. You get .6363636 (cool number, huh?). That means you then multiply each bill by that percentage number, so in effect each gets about 63.6% of their bill paid. So the hospital gets $1909.09 and the chiro gets $1590.91, which totals to $3500. Providers get their share of $3500, and you get $3500.

That helps to make sure you, the victim, get something out of the settlement. Sadly, it does NOT absolve you of the remaining balance of the bills. Technically, you still owe the balance. This law just allows you to not pay those balances from the settlement, even if there’s a lien. However, in a lot of instances, you or your attorney can get the provider to agree to accept that pro rata payment as full and final, in which case you’re clear!

This might beg the questions, “What is a lien?” followed by “What if some providers have perfected liens and some don’t?” Those are for other posts, but I’ll end with the fact that you cannot pay non-lien holders to the detriment of lien holders, so you ignore non-lien holders in this kind of distribution. That means you still have those bills hanging over you, which is, of course, different problem.

This stuff is complicated! Don’t try to do it on your own. Get an attorney for professional help with this stuff. Call me at 919-929-2992.

§ 44-50
Statutes and Session Law
Chapter 44. Liens.
Article 9. Liens upon Recoveries for Personal Injuries to Secure Sums Due for Medical Attention, etc.
44-50 Receiving person charged with duty of retaining funds for purpose stated; evidence; attorney’s fees; charges.

44-50. Receiving person charged with duty of retaining funds for purpose stated; evidence; attorney’s fees; charges.

      A lien as provided under G.S. 44-49 shall also attach upon all funds paid to any person in compensation for or settlement of the injuries, whether in litigation or otherwise. If an attorney represents the injured person, the lien is perfected as provided under G.S. 44-49. Before their disbursement, any person that receives those funds shall retain out of any recovery or any compensation so received a sufficient amount to pay the just and bona fide claims for any drugs, medical supplies, ambulance services, services rendered by any physician, dentist, nurse, or hospital, or hospital attention or services, after having received notice of those claims. Evidence as to the amount of the charges shall be competent in the trial of the action. Nothing in this section or in G.S. 44-49 shall be construed so as to interfere with any amount due for attorney’s services. The lien provided for shall in no case, exclusive of attorneys’ fees, exceed fifty percent (50%) of the amount of damages recovered. Except as provided in G.S. 44-51, a client’s instructions for the disbursement of settlement or judgment proceeds are not binding on the disbursing attorney to the extent that the instructions conflict with the requirements of this Article. (1935, c. 121, s. 2; 1959, c. 800, s. 2; 1969, c. 450, s. 2; 1995 (Reg. Sess., 1996), c. 674, s. 3; 2001-377, s. 2.)

§ 44-50.1
Statutes and Session Law
Chapter 44. Liens.
Article 9. Liens upon Recoveries for Personal Injuries to Secure Sums Due for Medical Attention, etc.
44-50.1 Accounting of disbursements; attorney’s fees to enforce lien rights.

44-50.1. Accounting of disbursements; attorney’s fees to enforce lien rights.

      (a) Notwithstanding any confidentiality agreement entered into between the injured person and the payor of proceeds as settlement of compensation for injuries, upon the lienholder’s written request and the lienholder’s written agreement to be bound by any confidentiality agreements regarding the contents of the accounting, any person distributing funds to a lienholder under this Article in an amount less than the amount claimed by that lienholder shall provide to that lienholder a certification with sufficient information to demonstrate that the distribution was pro rata and consistent with this Article. If the person distributing settlement or judgment proceeds is an attorney, the accounting required by this section is not a breach of the attorney-client privilege.

      (b) The certification under subsection (a) of this section shall include a statement of all of the following:

      (1) The total amount of the settlement.

      (2) The total distribution to lienholders, the amount of each lien claimed, and the percentage of each lien paid.

      (3) The total attorney’s fees.

      (c) Nothing in this Article shall be construed to require any person to act contrary to the requirements of the Health Insurance Portability and Accountability Act of 1996, P.L. 104-91, and regulations adopted pursuant to that Act. (2003-309, s. 1.)

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Medicare and Your Injury Claim

See that dog? I normally get that look from my clients when I try to explain this. Bear with me…

When you receive Medicare, and when you have a third party that might also be responsible for your medical bills (like when you have an injury claim that results in an offer of money, part of which reimburses you for medical expenses), then the law requires that you pay Medicare back.

But like anything dealing with government, the process isn’t straight forward. Not the end of the world, of course, it’s just more hoops to jump through. What are those hoops? I’m so glad you asked:

First, you’ll need to notify Medicare of the third party claim. As your attorney, I’ll do that for you, but I’ll first get you to sign a MSPRC/Medicare Proof of Representation form. That allows them to talk to me.

Second, Medicare will send what they call a Conditional Payment letter that indicates what they’ve paid in relation to your claim. This is NOT the final number that you’ll owe them, but it is IS what you have to work with in negotiating the claim with the third party.

Of course, if there are things listed in that summary of the Conditional Payments that you don’t think are related, we can ask them to amend it. They often will, which is nice.

AFTER we settle the claim (yes, AFTER) we then submit a form to Medicare indicating what the claim settled for, what the attorney’s fees were, AND what else we have to pay out of the settlement (other bills, costs, etc.). About a month or two later (that depends…years ago it was an 8 month turnaround, but as of this writing, they’ve been doing it in 1 – 2…) they send the Final Settlement letter, telling us what they want back. In calculating that number, they take into account the fees/costs/etc. that we reported, so often times this number is less than the Conditional Payment amount, but not always (as some payments can occur after the CP $…).

More complicated than it needs to be? Probably. But it’s what we have to work with for now, and it’s all the more reason to NOT handle your case on your own. Failure to take Medicare’s interest into account can jeopardize your coverage. Call me! 919-929-2992.

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Your Health Care Providers – Gotta Catch Em All!

When you have an injury claim – auto accident, slip and fall, dog bite, whatever – you’re probably going to have to see one if not several health care providers.

If you have an attorney helping you with your claim, it’s ABSOLUTELY VITAL that you make sure your attorney is aware of ALL of your health care providers related to your injury claim!

Why is this important? Think about it: As your attorney, what I’m trying to do is paint the most detailed and accurate picture of your treatment as possible. If you’ve left out a health care provider, I don’t have a complete picture to paint! I would be totally ignorant of those bills and records, and they may be a very important part of your story.

I can’t tell you how many times, despite my constant questioning and request for updates, I’ve gotten to the end of a client’s treatment period and requested all of the records/bills and gotten what I asked for, only to go over them with the client who then asks me, “Why don’t you have such and such in there?” Then I have to answer, “You didn’t tell me about such and such and I’m not telepathic.” This leads to at minimum a delay in your claim and also possibly a very frustrating conversation.

Don’t let this happen! Tell your attorney EVERY time you go to a provider and tell them about EVERY bill you get. Even better, SEND THEM EVERY BILL YOU GET! That doesn’t mean don’t pay them, it just means make sure your attorney has a picture of them. This way things won’t be left out.

Details matter. Don’t let them slip through the cracks. Call me at 919-929-2992.

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NC Traffic Tickets – Why Hiring a Lawyer Makes Sense

Traffic Attorney

We all get tickets. None of us are perfect. We all speed from time to time, we all make mistakes. But as I’ve said for years, it’s not if we mess up, it’s how we handle our mess ups that define us.

So you got a ticket. How are you going to handle it?

On one hand, you might feel comfortable going to court and winging it. You’ve heard about the “PVJ” or whatever it is, so you figure you waive that around and it will probably work out, right?

YOU ARE PROBABLY WRONG! Negotiating a traffic ticket successfully involves knowledge of State Law as well as local practice and rules. This is not the type of thing that’s easy to just do on the fly. The consequences are harsh, too. Your insurance can go up astronomically for 3 years, and you might even lose your license.

If you’re debating hiring an attorney for your ticket, here are the reasons why you should:

  1. The fee is less than your time. We are generally charging between $100 and $200 to handle a ticket, depending on the circumstances. Is it worth you missing a whole day of work, or maybe several, to save that money? Maybe it is, but it probably isn’t. Pay us, and you go do what you’re good at and we’ll go do what we’re good at.
  2. The knowledge is worth the fee. You might not want to accept this, but traffic ticket law can be somewhat complicated. If you zig when you should have zagged, you can lose your license, or at minimum get huge increases (FOR THREE YEARS) on your insurance premiums. If you hire an attorney with experience in this area you’re much more likely to have an outcome that is favorable. You might think you can figure out how to do our job by reading a blog post or two. But I doubt it. Sorry.

Don’t hesitate to hire an attorney for your ticket. At least call one and talk about it. The best of us will tell you if you really don’t need us. Call me at 919-929-2992.

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Contact Jeffrey

Jeffrey Allen Howard, Attorney at Law, PLLC
1829 E. Franklin St. - Bldg 600
Chapel Hill, NC 27514

(P) 919-929-2992
(F) 919-636-4779

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