What is a Peer Review?
In Pennsylvania, your automobile insurance provides medical coverage to pay your medical bills for medical treatment for injuries sustained in car accidents. Generally, your car insurance company is obligated to pay all bills for treatment which is reasonable and necessary. It is not necessary that you get pre-authorization for treatment. It is your carrier’s responsibility to object to bills it considers unreasonable or unnecessary. Medical bills which are not paid within 30 days are subject to penalties under the Motor Vehicle Financial Responsibility Law (MVFRL). When an auto insurance company wishes to contest the bills submitted by treatment providers, it will send them out for a Peer Review.
An insurance carrier can challenge bills by Peer Review for up to 90 days prior to the challenge. The regulations require that the carrier send the challenged bills with supportive records to an authorized PRO (Peer Review Organization). This is an entity which has been approved by the Insurance Commissioner for this purpose. Bills which deal with particular treatment can only be peer reviewed by an entity in the same specialty. For instance, chiropractic bills can only be reviewed by a chiropractor. The peer reviewer does not see the patient for an examination. His job is to simply review the records and bills, and in accordance with accepted norms and guidelines, render an opinion as to whether treatment is reasonable and necessary. The reviewer does not even have to contact your doctor.
What should I do after a Peer Review?
Over 80% of Peer Reviews are unfavorable, in whole or in part to the patient. If your bills are peer reviewed, and the review is unfavorable, the report will advise you as to your appeal rights. Probably the worst strategy is to appeal an unfavorable Peer Review. Reconsiderations of peer reviews are also over 80% unfavorable to insureds and the loser of the appeal has to pay the fees (usually $450.00-$500.00). Insureds also have the right to file suit against their own insurance company immediately. There are numerous regulations which have been promulgated to protect insureds. Many of these are ignored or abused by carriers.
Do I need a lawyer if my bills have been the subject of a Peer Review?
To protect your rights in an automobile accident claim, it is always prudent to hire a lawyer as soon as possible after you have been involved in an accident. It is even more important to seek and retain counsel whenever an insured receives notice that his/her bills are being peer reviewed. Failing to challenge your carrier for refusal to pay appropriate bills can affect your treatment and affect your claim against the at-fault driver. Call our office today for a free consultation.
Who pays for my medical bills after a car accident in Pennsylvania?
One of the things that most people find surprising if they have never been in an auto accident is that the guy who ran the red light may not be responsible for their medical bills. at least not initially Nonetheless, the above statement is true because Pennsylvania, like many of the states, has adopted a no-fault automobile insurance system.
The system mandates that auto insurance policies provide certain mandatory coverage offerings. Those required coverages include:
- Medical coverage;
- Income loss benefits;
- Funeral expenses; and
- Death benefits.
These coverages are required offerings, but it is not required that the insured actually purchase that coverage on his or her policy. Many people have health insurance and disability coverage through their employment, so they minimize or reject any required coverages in an effort to be economical and save costs. In Pennsylvania, it is only required that there be at least $5,000.00 in medical coverage issued under the policy. You can select the amount of coverage you are willing to purchase. Additional policy amounts are typically $10,000.00, $15,000.00, $25,000.00, $50,000.00 or $100,000.00. There is even a separate catastrophic loss coverage that adds $1,000,000.00 in medical benefits. If you have good health insurance, should you purchase more coverage than the required minimum?
How much insurance should I buy?
First of all, the cost of increasing the coverage amount is usually very affordable. I never recommend that a client spend all of their extra money on insurance, however, it is wise to carry more than the minimum coverage. Health insurance plans typically have “subrogation” rights (this is the right to participate in any third-party recovery and it could have very serious ramifications for you). I usually recommend a higher amount if it is within your budget.
Income loss benefits are also extremely important, however, it is not mandatory that an insured pay for same and include them on his or her policy. Many people do not include these benefits because they are unaware of the coverage or because they have disability benefits through their employer.
Frequently, an accident will disable a person and he or she becomes unable to work for an extended period of time. If you don’t have income loss benefits, you will be dependent upon your savings, disability insurance payments or a spouse’s earnings. Thus, it is wise to carry this coverage. The minimum amount is $5,000.00, but it usually can also be obtained for $15,000.00, $25,000.00 or $50,000.00. Additionally, this coverage is some of the most economical coverage available for purchase. You should purchase enough so that you can rely on the coverage to support your household if you are unable to work for an extended period of time.
These coverages are payable by your insurance company regardless of whether an accident is entirely your fault or the fault of another party up. If the accident is the fault of another, you can recover losses in excess of your coverage amounts in a 3rd party action.
Frequently, insureds get into fights with their own insurance company regarding payment of ongoing medical expense or income loss benefits.
If you are told your insurance company is not going to pay for your medical bills and/or your income loss, you should contact an attorney as soon as possible.
What do I do after a car accident if the other driver uses the same insurance company as me?
Both drivers in a car accident being insured with the same company is not as uncommon a situation as one might expect. In Erie, Pennsylvania, there are several large companies which have significant shares of the insurance market. Hence, it is not that unusual for the same car insurance company to provide insurance coverage to both vehicles in a two-car accident. How does that change the normal policy processing of the claims?
Auto Insurance carriers are sensitive to the pitfalls in this scenario. An insurance company contractually owes a fiduciary obligation to protect its insured. A fiduciary obligation is an extremely high duty of good faith and loyalty and it is one of the highest duties under the law. This creates difficult conflicts where an insurer insures both parties in an accident. After all, if the situation is contested, and it takes the position of one insured, it usually damages the interests of the other insured.
In these situations, it is extremely important to document everything. The insurer will assign separate adjusters to handle the claims of each insured and those files are supposed to be maintained separately from access by the opposing adjuster. In a disputed accident, the carrier will frequently refer the matter to an independent arbitrator to determine fault. That is not a perfect system, though, because the arbitrator’s decision will be based upon the evidence submitted. Keep in mind that while the arbitration can prove helpful, it does not absolutely bind the insured. Hence, even if an insured is determined to be at fault, he or she could still have rights to sue. Eventual success may depend upon carefully documenting the situation.
The scenario can be extremely confusing for the typical client. I had a case a few years back where a client was rear-ended by another vehicle and both vehicles were insured by “A” Insurance. An adjuster was assigned and contacted the client after her release from a hospital. He arrived at her house, took a recorded statement and offered her “gas money” to help her with the expenses of treatment. She signed a “receipt” on a clipboard and when she contacted the adjuster a month later after a week in a hospital to seek additional funds, she was advised she had settled the claim. After contacting us, we discovered the adjuster had never disclosed he was the “enemy” adjuster for the other driver. He had tricked her into settling her claim for a pittance. She had assumed he was her adjuster. We demanded the release be set aside and that request was refused. The events precipitated several years of litigation that resulted in a significant recovery for our client, but the situation could have been averted by contacting counsel at a much earlier stage of the controversy. If you are involved in such a situation, be sure to get a lawyer as soon as possible.
State Courts, Federal Courts, and your Pennsylvania Insurance Claim
Everyone knows that we have a federal court system and state court system, but when asked to explain the differences, few people are able to do so. The purpose of this blog is to provide a short, basic summary of the difference between the two court systems and how it can affect your personal injury claim.
The federal courts are established by Article III of our Constitution. Federal judges are appointed by the President of the United States and are confirmed by the Senate for life. The federal courts decide cases that arise under specific federal laws which establish jurisdiction (the power to hear the case), in the federal courts. Examples of federal question jurisdiction are securities fraud, income taxation, bank robbery, and laws regarding the environment and telecommunications. In general, matters which affect “interstate commerce” can be regulated by Congress through law and the question of what is “interstate commerce” has been very generously decided in favor of the federal government.
Finally, federal courts are empowered to hear cases under what’s called “diversity jurisdiction.” This requires that the parties be citizens of different states and the case or controversy have a good-faith value of more than $75,000.00. While federal courts are usually regarded as more important by ordinary citizens, this is not the case. It is simply that the federal courts have distinct areas over which they have jurisdiction.
State courts hear cases which arise under the state or local laws of the state. The laws which impact us in most of the aspects of daily life usually arise under state law. For instance, laws regulating controlled substances, the operation of your vehicle (while intoxicated or not), real estate, decedent’s estates and our complete crimes code all arise under the state law. This also includes auto accidents, workers’ compensation, and various defective products cases. Under Pennsylvania law, these cases are all brought in the particular county in which the case or controversy arose.
Appeals are heard by either the Superior Court or the Commonwealth Court and further appeals can be heard by the Supreme Court of Pennsylvania. Pennsylvania judges are elected positions with a ten-year term, at the expiration of which the judge must stand for a “retention vote” to serve another term.
Federal and State Courts oftentimes have concurrent jurisdiction. In other words, a case can be heard by either of them. This frequently happens with insurance disputes.
While the regulation of insurance is a matter of state law, insurance carriers can and frequently will remove the case to federal court under diversity jurisdiction. There are many strategic reasons why this strategy is employed. For instance, in state court, Pennsylvania courts have decided there is no right to a jury trial in an insurance bad faith case, However, the federal courts in Pennsylvania have held that there is a right to jury trial in such cases.
This blog is intended to provide a basic summary on this topic. For more information and the application to a particular situation, you should obviously consult an attorney.
What do you mean I don’t have a slip and fall case? I fell on their property!
I have repeatedly heard a variation of that quote at least twenty times in my career as a personal accident attorney. This misconception, that a landowner or possessor of land is automatically liable if someone falls on their property, is false. In Pennsylvania, a landowner or possessor of land is not an absolute guarantor of the safety of individuals on their property. The duty of care owed to individuals depends upon the legal status of the person on the landowner’s property. Listed below are several examples of a landowner’s responsibility:
If you are invited onto your neighbor’s property and he is aware of a foot-deep sinkhole on his property which is obscured by high grass, he may be liable for damages if he does not at least warn you of a potential danger. Landowners, however, owe almost no duty of care to a trespasser. If you are injured while trespassing on another’s land, you are extremely limited in your ability to make any recovery.
If you are a licensee, or a person who is on the land with express or implied permission of the landowner, the landowner has an obligation to advise you of any known dangers that are not obvious or visible to the licensee.
There is a the duty of a landowner to warn a business invitee, customer or person invited on to the property for the purpose of profit of any danger. A business owner is responsible to inspect his or her own property for defects. He is also responsible for the correction or repair of any defects and to warn invitees of any dangerous conditions which may not be open and obvious to them.
The specific situations under which these principles apply are too numerous to begin to catalogue for this article. Additionally, there are numerous specific rules like building codes, or applicable laws such as the “Americans with Disabilities Act” which may affect a particular situation.
What about slip and falls on snow and ice?
In Pennsylvania, the courts have specific rules that apply to slip-and-fall accidents under wintry conditions. Because snowy conditions are so prevalent in the winter, Pennsylvania has developed the “hills and ridges” doctrine. This doctrine essentially states that, in order to recover against a possessor of land for a snow-related fall, the injured person must show the fall was caused by an accumulation of snow and ice that has been there so long as to form “hills and ridges.” The reasoning is that those conditions were there result of neglect.
Thus, if a person falls on “black ice,” there is typically no recovery permitted. However, if the black ice formed because of an unnatural condition (e.g. a defective sidewalk), there is a possibility a cause of action. Again, there are numerous rules which apply to particular situations. For instance, the City of Erie has a local ordinance which requires a possessor of land to clear sidewalks within 3 hours of the end of snowfall.
What should I do after a slip-and-fall accident?
If you are injured in a slip-and fall accident, you should try to preserve the evidence as quickly as possible. Take pictures of the scene to preserve the evidence of the conditions at the time. If you fell on a wet floor in a business, take pictures of the wet floor and the absence of “wet floor” signs.
The most important thing if you have a slip-and-fall case is to quickly hire a lawyer. The lack of knowledge of the applicable law and the steps necessary to protect a claim could make the difference in whether or not you have a case. Our Erie, PA lawyers offer free consultations to slip-and-fall victims.
What is an uninsured motorist claim?
As Erie, PA personal injury lawyers, we have discovered that, unfortunately, many dangerous drivers in Pennsylvania are driving without any insurance—which can leave you “holding the bag” after being badly hurt in an accident. As a practical matter, if you were seriously hurt in such an accident, it is rarely worth it to file a lawsuit against an uninsured driver personally: uninsured drivers usually do not have any assets valuable enough to compensate you for your injuries and months of missed work. Uninsured Motorist (UM) coverage is car insurance coverage that applies when an uninsured driver is responsible for bodily injury damages caused to you in an accident. If you elected to add UM coverage to your insurance policy, your auto insurance will provide coverage for your injuries if the other driver was uninsured. Electing to add UM coverage to your policy is important and is usually good value.
Insurance carriers in Pennsylvania are required to offer the purchase of UM coverage in an amount equal to the liability coverage on your policy. For instance, if you purchased $100,000 in liability coverage, your insurer must offer you the ability to purchase at least $100,000 worth of UM coverage. You may elect to carry any amount of UM coverage below or equal to your liability coverage or you can reject UM coverage entirely. Our personal accident lawyers recommend that you carry as much UM coverage as you can afford. If you are willing to pay $100,000 to provide bodily injury coverage to other drivers, why wouldn’t you pay a smaller premium to provide the same coverage to protect yourself?
For a clearer understanding of UM coverage, we have listed several instances in which it potentially applies:
- If the other driver’s insurance company becomes insolvent or goes out of business (this has occurred on many occasions when our clients are pursuing claims);
- The other insurance company denies coverage due to a policy exclusion. For instance, there is coverage on the vehicle, but the driver is excluded;
- The accident was a hit-and-run and the driver flees before you obtain his license plate number; and
- An unknown driver runs you off the road and then speeds away. This circumstance is known as a “phantom vehicle” claim.
How does having an uninsured motorist claim affect my rights?
While claims involving uninsured drivers are difficult, our personal injury lawyers have pursued many such cases. It is important to note that UM claims are contractual—which can affect the statute of limitations and the timeframe in which you must make a claim; it can also require you to take particular steps in accordance with your insurance policy in order to preserve your right to make such a claim. Failure to follow such steps can potentially preclude you from recovery. If you hire one of our lawyers to represent you in your uninsured motorist claim, our, Erie, PA lawyers will review your insurance policy and make sure your claim is preserved and your rights are protected.
To learn more about Pennsylvania car insurance coverage, read our article on Understanding Car Insurance.
What is Insurance Bad Faith? Has Your Insurance Carrier Acted in Your Best Interests?
Insurance bad faith may be a term you have heard mentioned at some time or another. It is often used in articles, legal ads, and a variety of similar sources. Insurance bad faith refers to the improper conduct of your insurance company in the handling of your claim. Not every insurance claim denial by your insurance company constitutes insurance bad faith.
As defined by Pennsylvania case law, insurance bad faith occurs when your insurance company knowingly denies a claim which it knows to be valid or which claim is denied in reckless disregard. The simple denial of a claim by your insurance company does not establish bad faith. Case law requires that the insured (you) must prove, by clear and convincing evidence, that their denial involves a knowing and intentional denial of a valid claim. Your insurance company owes you very high duty under the law to process your claim, which is sometimes referred to as a “fiduciary duty.” This duty requires them to put their obligation towards your claim before those of its own in processing claims. It is important to distinguish the duties owed to you by your insurance company versus the duties owed to you by the “other guy’s” insurance company. The “other guy’s” insurance company owes you absolutely no duty. So its denial of your claim does not constitute bad faith (at least as to you). Any duties to the other party are to its own insured only. Read more about we can help you with insurance bad faith.
Insurance bad faith law is an extremely complicated subject. Pennsylvania law defines several types of bad faith. For instance, common law bad faith is conduct the courts traditionally would declare as improper. In 1990, Pennsylvania passed its first bad faith law; “statutory bad faith,” which legislatively created the law that declared the intentional conduct of insurers to be in bad faith. Various statutes like the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) also provide a separate remedy for improper denial of claims.
Why is the ability to establish your insurance company acted in bad faith so important? Traditionally, the insurance companies would often deny many valuable claims. The reasons were that there were no consequences for the improper denial of a valid claim. If the insured was able to establish the claim was valid through litigation, the result was the insurer had to pay the claim. There were usually no other adverse consequences to the carrier. Now, with Pennsylvania insurance bad faith statute and case law, the intentional denial of a valid claim can result in various penalties imposed on your insurance company. These penalties can include interest, attorneys’ fees and additional damages to punish the insurance company for its conduct. Those amounts could be substantial, depending upon the circumstances of the case.
It is important to note that not all insurance companies can be sued in bad faith. A workers’ compensation insurer is typically immune to bad faith claims. An employee benefit plan through your employer is also immune. These special situations are complicated.
If you believe your insurance company has wrongfully denied your claim, it is important you contact our Erie lawyers. This article barely scratches the surface of insurance bad faith. Contact our insurance bad faith lawyers to further discuss if you are the victim of insurance bad faith.
What do I do if I was injured in an accident caused by a family member or a friend? Do I have to sue them?
Many people are reluctant to pursue a claim when the cause of their injury is a fellow family member or close friend. I once had a client absolutely refuse to pursue a claim because he indicated his father would be extremely upset if he pursued a claim against him even though the accident and his injuries were his dad’s fault.
What is the effect of pursuing a claim against a family member or a friend?
First of all, in Pennsylvania, if suit needs to be filed, you are rarely able to sue an insurance company directly. Suit has to be filed against the negligent person. In fact, insurance companies count on the fact that this will discourage many claims—and it does. Yet, in most cases, pursuit of a claim will have no effect upon the family member. For instance, suppose you are a passenger in a vehicle driven by a family member and that person loses control of the vehicle, causing damage to the vehicle and injuries to you. Will it matter if you decide to pursue a claim against the person’s insurance company? Not if the property damage was over $1,550. Pennsylvania regulations permit an insurer to assess a “fault accident” if the damages exceed $1,550 (this amount, set in 2014 is adjusted every 3 years). Hence, if the person submitted a claim to repair the vehicle and the carrier paid more than $1,550, the accident is a “fault accident” whether a claim is pursued for injury damages or not. Pursuing such a claim for your injuries does not make it worse. This is just one example and there are myriad other situations which will be the focus of other articles.
If you find yourself in such a situation, the most important thing is to seek the advice of a lawyer immediately. Most claims can be resolved fairly quickly, which will eliminate the need to file suit against the family member or friend. The claim can be resolved against the insurance company before suit will need to be filed and with no additional ramifications. In fact, resolving the claim against that insurer may be a prerequisite to the pursuit of a claim against other insurers and coverages that may apply to your claim.
If you have such a situation, please consider calling for a free appointment earlier rather than later. You will help to eliminate, or at least minimize, what could be a difficult situation. If you want to learn more, read about how we can help you after a motor vehicle collision.
Full Coverage vs. Full Tort Insurance
The Motor Vehicle Financial Responsibility Law (MVFRL) took effect in Pennsylvania in July of 1990. It created the concept of limited tort and allowed consumers to select that coverage on their auto policies. Although we have been governed by this law for over 25 years, it still is a source of great confusion for most consumers.
One particular problem I have experienced with many clients is the confusion between “full tort” and “full coverage.” Understanding the distinctions between these terms can make a real difference in a potential recovery for accident victims.
What is Full Coverage?
“Full Coverage” is not defined in the law, but to consumers the term typically has meant that your auto policy includes collision coverage. In other words, your policy includes coverage to replace or repair the insured vehicle when it is damaged in an accident, even if the accident was entirely your fault. Your policy can also include comprehensive coverage, which will provide for repair or replacement of a vehicle which becomes damaged, but not by operation of the vehicle (namely, theft, fire, a falling branch, etc.). Many people opt not to purchase collision coverage because it is typically the most expensive coverage, particularly when the insured vehicle is older and the policy payment is less.
What is Full Tort?
“Full Tort,” on the other hand, refers to the ability of the insured to pursue a claim for injuries without restriction in the event of an accident. Thus, a policy may have both full tort and full coverage. Conversely, it may have neither. The two terms are distinct and should not be interchanged. You need not include collision coverage on your policy, but you should not confuse this with whether or not you have a full tort election.
To learn more about “full tort” versus “limited tort” car insurance, please read our article on Understanding Car Insurance Coverage. If you were in an accident in which you suffered injuries, call our office for a free consultation.
Can you sue the bar that served a drunk driver?
When you sue a drunk driver for the damage they caused, you can sometimes also sue the bar that served the drunk driver alcohol. These types of actions are referred to as “dram shop actions.” The name comes from English Common Law in England where taverns used to serve patrons a “dram” of liquor. The name has persisted over the years and is now used to refer to these types of claims.
In Pennsylvania, these actions are part of the liquor code and it is a condition of liquor licenses granted by the state that the licensee or bar owner is prohibited from selling alcoholic beverages to a visibly intoxicated person. However, this does not mean you can always sue the bar at which a drunk driver was served.
The violation of the law occurs when the alcoholic beverage is served to a person who appears to be visibly intoxicated. Proving that this was the case can often be a complicated question of law, medicine, and fact. In such cases, it is extremely important to hire a lawyer as soon as possible before the evidence vanishes and the security tapes are “lost” or deleted.
Bars and restaurants fight dram shop actions with everything they have because a successful claim have devastating financial effects upon the bar. Repeated offenses can even jeopardize the bar’s liquor license. While these are typically difficult cases, they are an important source of additional insurance coverage when a drunk driver causes catastrophic injuries.
Private individuals and “social hosts” are only subject to liquor liability claims in some limited circumstances. As a genera; matter, Pennsylvania has refused to extend liability to a social hosts even if that host serves alcoholic beverages to a visibly intoxicated person who then causes an accident. Courts that have considered this issue have steadfastly refused to permit such actions on the basis of “social policy.”
The situation changes, however, when the individual being served alcohol is under the age of 21, the legal drinking age. If a social host serves alcoholic to an under-aged person, the server can be held liable to an injured third-party. The social host can even be held liable to the under-aged person himself or herself if he or she is injured as a result of drinking. Again, the pursuit of such a claim involves complex issues of law and fact and requires a skilled attorney. The theory behind the law is that the act of serving alcoholic beverages to an under-aged individual is itself negligence because the act itself is illegal.
Finally, when an intoxicated person causes an injury, courts have held that the drunk driver can be responsible for not only compensatory damages—but also punitive damages. Compensatory damages are those damages intended to “compensate” an individual for the harm he or she suffered. These damages include pain and suffering, lost wages, and medical bills. Punitive damages are damages intended to “punish” the drunk driver for his or her outrageous conduct. These damages are in addition to compensatory damages and they are awarded by the court when justified.
Most courts have ruled that punitive damages are recoverable against drunk drivers because the action of operating a vehicle while intoxicated can constitute outrageous conduct. Again, the question of whether these damages are appropriate in a particular case is complicated and requires a skilled attorney.