Is there a way to keep the settlement without giving it all to medical bills?

(California)

I understand that the purpose of the tort law is to restore the injured party back to pre-accident condition.

A settlement should include medical bills, future medical bills, and pain and suffering. The person who ran a red light and hit me has only the minimum of $15,000 for bodily injury.

My current bills are almost $10,000. I do not believe the person responsible has any other umbrella policies or assets. I am wondering now, before I accept their offer, if ther is a way for me to keep some of the settlement for my pain and suffering, and future medical bills. Or does it all have to go first to the medical bills? What if nothing is left?

Answer:

Your question is a very good one. What you are really asking is about the subrogation of rights an insurance company has over your recovery. Please see: http://www.auto-insurance-claim-advice.com/Subrogation-of-Rights.html.

The insurance company has a right to recover for the damages they have paid. However, those rights are secondary (by well-established case law most states - check with a local lawyer) to your rights of complete recovery. Nevertheless, we have only seen this situation have applicability on jury awards and not actual settlements.

The situation usually has to do with a jury award where the damages (special damages) are more than the limits. In this case, it would be something like the jury award for special damages (i.e., pain and suffering) for $20,000 but the limits are $15,000. In this case, the insurance company would not recover under subrogation of rights as the insured must be indemnified first.

This situation is clear as a jury would determine the damages. If on the other hand, you would settle, you are agreeing to that recovery and you cannot offset the subrogation of rights. Contact a lawyer to see how this works out in California.


Good Luck
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