|Attempts at Expanding the Made Whole Rule: Square Pegs in a Round Hole?
By Randy Wallace
You are evaluating a case and realize that the at-fault party has no insurance and no assets. Your client has medical expenses in excess of $8,600, his employer’s health insurance plan (non-ERISA) has paid over $6,000 in medical benefits and only $10,000.00 in uninsured motorist coverage is available. To make matters worse, the health insurer wants to recoup the money it has paid out of the $10,000.00 in uninsured motorist benefits leaving less than $4,000.00 to compensate your client and pay your fee.
These basic facts were in play for plaintiff’s counsel in Hare v. State, 733 So.2d 277 (Miss. 1999). What could be done to maximize the recovery for the client? Plaintiff’s counsel sought application of the made whole rule. But what exactly is the made whole rule? It “is the general principle that an insurer is not entitled to equitable subrogation until the insured has been fully compensated.” Id. at 281. In adopting the made whole rule, the Court held that:
It is not to be overridden by contract language, because the intent of subrogation is to prevent a double recovery by the insured, especially here as expressly stated in the State Health Plan. Until the insured has been fully compensated, there cannot be a double recovery. Otherwise, to allow the literal language of an insurance contract to destroy an insured's equitable right to subrogation ignores the fact that this type of contract is realistically a unilateral contract of insurance and overlooks the insured's total lack of bargaining power in negotiating the terms of these types of agreements.
Id.at 284(citations omitted).
Given expert testimony that the true value of Hare’s damages were in the range of $50,000 to $175,000, application of the made whole rule allowed Hare to receive the benefit of his health insurance (over $6,000) and also receive the uninsured motorist policy limits of $10,000.00. It is important to note, that the made whole rule does not eliminate the health insurance provider’s right of recovery, it simply delays the insurer’s right of recovery until the insured has been made whole. Now that you know how the made whole rule works, what about attempts to expand it beyond contractual subrogation?
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MAJ Officers & Board of Governors Elections
Officers and Board of Governors from the seats and districts listed below will be up for re-election at the MAJ annual meeting, Saturday, June 4, 2011. The meeting is part of the annual convention at The Ritz-Carlton in New Orleans.
The deadline for submitting a letter stating the intent to run for office is May, 5, 2011. This date is 30 calendar days prior to the day of the meeting. Letters must be postmarked no later than Thursday, May 5.
Officer positions open for candidates are:
President-elect – Currently held by Rebecca Langston
Vice-President – Currently held by Vicki Slater
Treasurer – Currently held by Rogen Chhabra
Secretary – Currently held by Edward Gibson
Parliamentarian – Currently held by Dan Kitchens
AAJ Board of Governors Position B (Three-year term) – Currently held by Chuck McRae
AAJ State Delegate Position B (Two-year term) – Currently held by Vicki Gilliam
AAJ Minority delegate – Currently held by Isaac Byrd
The New Lawyer Delegation and the Women's Caucus will select their chairs during their meetings. They, along with the elected officers, serve as the MAJ Executive Committee.
Candidates' dues must be paid in full prior to the deadline for submitting a letter of intent to the Executive Director in order to be deemed qualified. An announcement will be made of the qualified candidates within three days following the qualifying deadline.
Board of Governors members will be selected from the odd Circuit Court Districts. The members in attendance at the meeting will caucus and select their Board members.
Tech Tip: Why Hard Disk Cleanup is Necessary
By Mike Lenoir
A surprisingly large amount of new information makes its way to your hard drive every day. When you browse the Internet, temporary files are downloaded - cookies, images, icons, etc. The same can occur when you read email and open attachments. The attachment is saved as a temporary file before it can be displayed. Even desktop applications like Word, Timeslips and Acrobat create temporary files.
In a perfect world, these programs would “clean up” their mess and remove all of the temporary files that were created. Some programs keep these temporary files around on purpose. Others just do a bad job of cleaning up behind themselves. The result? Decreased computer performance, running out of hard drive space, and even program errors.
The solution is to perform a periodic cleanup of your hard drive. This Windows function is called DISK CLEANUP and is available under Start|Programs|(System) Tools|Accessories. We generally select all options EXCEPT “'Compress Files to Save Space.”
If you want to take cleanup to the next level, you can take some additional steps. Manually delete files from the c:\windows\temp folder. Manually delete temporary files specific to any application that you use. You can also open up Internet Explorer and delete history, temporary files and cookies under the Tools|Internet Options button.
We also recommend periodically looking through your list of installed programs. Toolbars, Coupon Printers, and other little applications can sneak onto your computer and use up resources. Periodically review and uninstall what you do not need.
Once you have deleted everything that can be deleted, then running a Disk Defragmentation (also under Start|Programs|System Tools|Accessories) can help free up system resources previously occupied by temp files and programs that have now been deleted.
Your computer is a constantly-changing system that needs periodic maintenance. Perform these basic cleanup functions on a periodic to keep you machine running as efficiently as possible.
Mike Lenoir is a tech consultant with Affinity Partner Matrix Solutions. He has been working with Mississippi law firms since 1992. Check out his blog and podcasts at www.matrixsolutions.com.
Good News Journal
Ed Williamson and Chris Posey recently obtained a plaintiff’s verdict in a medical malpractice case. This was an MTCA medical malpractice case against Delta Regional Medical Center in front of Judge Betty Sanders in Greenville alleging a failure to properly and timely diagnose and treat a stroke in the emergency room. Judge Sanders entered a final judgment in favor of the plaintiff in the total amount of $390,000.00 (this was subject to the $500,000.00 cap on damages). The highest pre-trial settlement offer by the Defendant was $65,000.00.
Congratulations to MAJ member Paul Chiniche on an acquittal last week in Lafayette County. Paul received an acquittal for a young client from Oxford in Lafayette Circuit Court on a burglary with intent to commit grand larceny charge. His client was facing a maximum of 25 years if convicted. He maintained his innocence throughout the entire case, and a few days before trial turned down a plea offer for eight years. After the alleged "eye witness" testified, the DA came to them with another plea offer that, again, his client turned down. This was a two-day jury trial with the newly elected Circuit Judge Jon Gregory (from Okolona) presiding; this was Judge Gregory first jury trial on the bench.
New Law Firms
Chris Posey announces that he will be opening The Posey Law Firm this month, in the areas of general practice and personal injury. He will continue operating out of the Williamson Law Firm building and sharing office space with Ed Williamson, while also continuing to do some joint work on cases with Ed. This new venture will give him an opportunity to practice in a variety of different areas to further service Philadelphia, Neshoba County and surrounding areas, while still maintaining a focus on representing injured persons.
Christopher M. Posey
THE POSEY LAW FIRM, PLLC
509-A Church Avenue
P.O. Box 1580
Philadelphia, MS 39350
Gerald A. Mumford announces the opening of The Mumford Law Firm, PLLC, concentrating in the areas of personal injury, criminal defense, premises liability, and family law.
The Mumford Law Firm, PLLC
728 North Congress St.
P.O. Box 683
Jackson, MS 39202
Welcome to the World
MAJ member Stephen Wilson of Meridian and his wife Mary welcomed their second child, Andrew Lamar Wilson on December 16, 2010. Andrew is joining his big brother, Robbie (5). The family is pictured below!
Issue No. 44
Editor: Matt Kitchens
Gulf Coast Lunch & Learn
February 1, 2011
11:00 a.m. – 1 p.m.
“Taking Medicare’s Interest into Account”
Mary Mahoney’s, Biloxi
to register online
Sponsored by The Centers
Insurance Bad-Faith Seminar
February 18, 2011
Eagle Ridge, Raymond, MS
to register online
Seminar Sponsors: Robert Ellis & Associates, Settlement Partners (Rebekah Reedy), & Walton & Associates
New Lawyers Division Meeting
February 25, 2011
Spring Seminar featuring Don Keenan
ONE DAY ONLY!
March 25, 2011
MAJ Annual Convention
Annual Banquet Keynote Speaker: James Carville
June 2-4, 2011
The Ritz-Carlton, New Orleans