Will the Supreme Court End Confusion Caused by Empire v. McVeigh?

By Cory Bilton

Supreme Court - 2

While the nation looks to the Supreme Court to take a stand on historic social issues, some personal injury attorneys are hopeful that the Court will take a stand for state laws that protect injury victims from unfair subrogation practices. My interests fall into both categories. For attorneys unaware that an interesting subrogation case is being considered, you should check out the briefs for Aetna v. Kobold or Coventry v. Nevils. The two cases ask the Court to resolve the same issue: do the terms of a FEHBA plan preempt state laws regulating subrogation and reimbursement?

Continue reading

RGR v. Settle Redux: New Opinion and New Issues

By Cory Bilton

GW Parkway To GT

In its latest release of opinions, the Supreme Court of Virginia issued a new opinion in the RGR v. Settle case (which I’ll call “Settle II”), reaching the opposite conclusion of the prior decision. Back in June, I wrote that the Court’s first opinion in RGR v. Settle (“Settle I”) reached an untenable position. Settle I held that the victim in the case was contributorily negligent as a matter of law because “no reasonable minds could differ” on the matter, despite the fact that there was a two-justice dissent. Now, Settle II spills many bytes on an issue that was not even mentioned in Settle I. In my opinion, there is no way to reconcile these two opinions with legal reasoning alone. Instead, to me this is a candid view into the world of judging. Turns out justices are just people, too.

Continue reading

Second Circuit Splits with Fourth Circuit on ERISA Preemption in Wurtz

By Cory Bilton.

Lincoln Mem 2

The preemptive effect of an ERISA benefit plan’s contract language continues to be a hot judicial topic. Although ERISA covers the broad rights and duties of employer sponsored benefit plans and employee beneficiaries, personal injury attorneys are largely concerned only with the narrow issue of the plan’s subrogation and reimbursement rights against injured plaintiffs. Many states limit the subrogation or reimbursement rights of health insurance plans. When a state limits a benefit plan’s right to recover, ERISA plan administrators’ argue that the plan language itself preempts any state law limitations. If the plan’s language preempts state law, the plan gets repaid. If state law is not preempted, the injured person repays less, or sometimes avoids repayment at all.

A couple days ago the Second Circuit issued an opinion, Wurtz v. Rawlings, holding that the plaintiff’s state law claims were neither expressly nor completely preempted by ERISA. A New York statute (§ 5-335) states that health insurers are not permitted to subrogate against a liable third-party or seek reimbursement for medical expenses from an injured person (Virginia has a similar “anti-subrogation” law). Despite this law, ERISA plans in New York were still seeking subrogation or reimbursement, by claiming the plan language preempted the New York anti-subrogation law. The ERISA plans at issue here were insured ERISA plans, which may still be regulated by state laws that are intended to regulate insurance (as opposed to self-funded ERISA plans, the language of which preempts even state laws that regulate insurance). But when the trial judge faced the plan administrator’s motion to dismiss, he held that the plaintiff’s claims were both expressly preempted and completely preempted by ERISA and thus dismissed the claim.

Continue reading

RGR, LLC v. Settle: If the Facts Don’t Fit the Law, Change the Law

By Cory Bilton

No Loitering on Bridge Sign

Having a case decided by a jury is one of the best features offered by the legal system in the US. The domain of the judge is to determine the law. The domain of the jury is to hear the facts of the case and assess the credibility of the witnesses. If the jurors believe you and your witnesses more than the opposing lawyer and her witnesses, you will prevail.

Except when you don’t…

Continue reading

Virginia Supreme Court Permits Double-Digit Ratios for Punitive Damages in Coalson v. Canchola

By Cory Bilton

President Signs 2

Numbers have a strong pull on our judgment.  If a law says, “Don’t drive a car unreasonably fast,” it is difficult to know exactly what that means.  Every person on earth could argue at length justifying their own definition of “unreasonably fast.”  But change that law to say, “Don’t drive a car faster than 70 miles per hour,” and all judgment collapses to the single question of whether a car’s speed exceeds 70 mph.  Call it simplicity, efficiency, or laziness, but we love rules based on numbers.  They make decisions easy.  Because numbers mesmerize us, when a law incorporates both a number element and an extra “reasonableness” element, it’s easy to focus on the number part and forget about the rest of the rule.

Continue reading

Hubb v. State Farm: Statutory Construction Can Be Used to Prove Anything

By Cory Bilton

Foggy Bottom Metro Sign

Last week, the DC Court of Appeals decided Hubb v. State Farm, a case involving subrogation of personal injury protection (“PIP”) benefits under Washington, DC law.  The Court held that PIP insurers in DC have the right to subrogate (or be reimbursed) from the proceeds received by an injured person from the wrongdoer.  This is not a groundbreaking result.  In fact, I think even if the Court had adopted Hubb’s argument in this dispute, there was not going to be a repeatable benefit for other injured people in the future.  But what is noteworthy about Hubb v. State Farm is the reasoning employed to derive the result.  It turns out statutory construction, like statistics, can be used to prove almost anything.

Continue reading

Did the Nevils v. Group Health Plan Opinion Just Say What We’ve All Been Thinking?

By Cory Bilton

Wash Cir 3

The Supreme Court of Missouri recently decided Nevils v. Group Health Plan, Inc., holding that FEHBA does not pre-empt Missouri’s anti-subrogation law.  Google informs me that Jefferson City, Missouri, where the Supreme Court of Missouri is located, is roughly 930 miles away from the Washington DC area.  Despite the distance, Nevils could have a significant impact in our area, both for Virginia residents and for federal employees.  This is not to say that the analysis laid out in the Nevils decision is new.  In fact, I think the Missouri Supreme Court just said what we’ve all been thinking (or, at least, what many local lawyers who routinely have to deal with FEHBA liens have been thinking).

Continue reading

Comparisons, Conjecture, and Confusion Over Data Used by Testifying Experts

By Cory Bilton

Sheet of Numbers

This has been an exciting year for data both big and small.  We’ve seen frequent news stories on data released by the government, secretly collected by the government, and stolen from private businesses.  On our blog this year, we’ve written about healthcare claims data from Medicare, highlighted reports of bicycle collision data in DC and data about judges calendars in Virginia, and discussed some of the ways in which collected data is changing litigation.  I think we might soon need a data set to support all statements we make that are based on experience, probability, or the “average” circumstances.

Continue reading