Uninsured Motorist Coverage and Bicycle Accidents

As a triathlete, every time I get on my bicycle, I worry about being hit by a vehicle. We can be very cautious while riding.  However, there is nothing we can do if a motorist is not paying attention.

What happens if you are hit by a motorist and the person has no insurance or drives off? In New Hampshire, your own car insurance will probably cover you.  New Hampshire requires that every motor vehicle insurance policy issued in the state include uninsured motorist coverage in the same amount as your liability coverage.  That uninsured motorist coverage usually covers a named insured who is injured by an uninsured motor vehicle, even if the insured is not in a vehicle (such as a bicyclist or pedestrian).  An uninsured vehicle includes a hit and run vehicle.  What if the motorist never actually hits you?  This is covered too, as there need not be physical contact between you and the motor vehicle for the accident to be a hit and run accident, based on New Hampshire law.

If you are injured by a careless motorist, our office may be able to help you. Please contact me to arrange an initial meeting.  There is no cost to you to speak with me about your rights.



United States Supreme Court finds that the Federal Tort Claims Act’s Time Limits are Subject to Equitable Tolling

Most tort actions are governed by a three year statute of limitations.  However, tort actions against the federal government are governed by the Federal Tort Claims Act (FTCA), which has a shorter statute of limitations.  Examples of tort actions subject to the FTCA include medical malpractice actions against doctors who are federal employees, a negligence action following a motor vehicle accident caused by a federal employee (such as an FBI agent) or a negligence action for a slip and fall on federal property (such as a slip and fall at a post office).  Under the FTCA, a plaintiff must present his claim to the appropriate federal agency within two years after the claim accrues.  28 U.S.C. § 2401(b).  The plaintiff then has six months to file suit in federal court after the agency acts on the claim. Id.

Generally, if a plaintiff does not meet the deadline for filing his claim, then his claim will be dismissed.  However, under the doctrine of equitable tolling, a statute of limitations will not bar a claim if the plaintiff, using due diligence, did not discover the injury until after the limitations period had expired.

Until recently, there was a debate in the federal circuit courts over whether equitable tolling applied to claims subject to the FTCA.  On April 22, 2015, in a 5-4 decision, the United States Supreme Court held that the time limitations in the FTCA are subject to equitable tolling.  United States v. Wong, 575 U.S. ___ (2015) (Wong.Slip.Op.).  Following Wong, a plaintiff may proceed with his or her claim against the government even if he or she has missed the statute of limitations.  However, the plaintiff must demonstrate that even with due diligence he or she did not discover the injury until after the limitations period has passed.  This is a difficult standard.  Thus, even after Wong, one must still be attuned to and follow the unique processes to file claims under the FTCA because equitable tolling is the exception and not the rule.

Hospitals cannot charge self-pay patients more than they charge insurance companies

Hospitals who bill insurance companies for care rendered to a patient often accept from the insurance company an amount that is significantly less than the billed amount.  A person without insurance then may have to pay more for the same care as that rendered to someone with insurance.

New Hampshire law remedies this inequitable situation.  RSA 151:12-b provides, “When billing self-pay patients for a service rendered, a hospital . . . shall accept as payment in full an amount no greater than the amount generally billed and received by the hospital for that service for patients covered by health insurance.”  A hospital must also provide notice of this requirement both at the time of the service as well as when it bills the self-pay patient.  This statute only applies to hospitals, which is defined in RSA 151-C:2 to include “an institution which is engaged in providing to patients, under supervision of physicians, diagnostic and therapeutic services for medical diagnosis, treatment and care of injured, disabled, or sick persons, or rehabilitation services for the rehabilitation of such persons.” The term hospital also includes psychiatric and substance abuse treatment hospitals.

But what amount must be accepted by the hospital for a self-pay patient?  The statute states that the payment amount is measured by the standards articulated in the Patient Protection and Affordable Care Act of 2009.  The relevant portion of Section 9007 of the Patient Protection and Affordable Care Act of 2009 mandates that the amount the hospital can bill a self pay patient is “not more than the lowest amount charged to individuals who have insurance covering such care.”  This amount may include the rate charged by Medicare and Medicaid.  

The United States Supreme Court finds that equitable remedies may apply to an ERISA plan

James McCutchen was in a motor vehicle accident and incurred $66,866 in medical bills. These bills were paid for by U.S. Airways’ self-funded ERISA plan. McCutchen hired an attorney and settled his claims for the maximum available insurance of $110,000. After paying his attorney fees of $44,000, McCutchen had $66,000 left. The plan then asserted it was owed the entire amount it previously paid, which would have left McCutchen $866 in the hole. He argued that the plan is limited to recovery of the amount of his settlement representing medical expenses and that the plan should have to share in his attorney’s fees. The plan disagreed.

On April 16, 2013, in U.S. Airways v. McCutchen, the United States Supreme Court rejected McCutchen’s argument that the plan was limited to the portion of his settlement representing medical bills because the language of the plan required full payment. However, the Court found that the plan had to share in the cost of his attorney’s fees because the plan language was silent on how to pay for the costs of obtaining the settlement (known as the “common fund” doctrine). The Court reasoned, “The rationale for the common-fund rule reinforces that conclusion. Third-party recoveries do not often come free: To get one, an insured must incur lawyer’s fees and expenses. Without cost sharing, the insurer free rides on its beneficiary’s efforts — taking the fruits while contributing nothing to the labor. Odder still, in some cases — indeed, in this case — the beneficiary is worse off by pursuing a third party.” See U.S. Airways v. McCutchen.

Following McCutchen, it will be even more important to carefully review the requirements of an ERISA plan to determine whether filing suit would permit a reasonable recovery, or whether it will permit a free ride to the insurer.

Res Ipsa Loquitur and Multiple Defendants

Res ipsa loquitur is one of those Latin phrases lawyers like to use.  It simply means the act speaks for itself.  So when an accident happens that causes injury or property damage that would only happen if someone was at fault, or negligent, then the burden of proof shifts to the defendant to prove that he/she was not negligent.  This burden shifting is important when there are multiple defendants who have the only knowledge about which one of them was actually negligent, or at fault, for causing an accident.  For example, a few years ago a group of young adults held a party in a barn in Goffstown, New Hampshire.  The barn burned down shortly after the party ended.  The State Fire Marshall was able to determine that the fire was caused by someone leaving a lit cigarette on an old couch.  The group of young adults were sued by the property owners, and the owners sought recovery based on res ipsa loquitur.  The trial court agreed to allow the theory to proceed, and the burden shifted to each defendant to prove they did not leave behind the lit cigarette or face joint liability for the loss of the barn.  The trial court issued two orders involving res ipsa loquitur and the application of burden shifting to multiple defendants. Order on Sumary Judgment (res ipsa); Order on Amended Writ (res ipsa).