Friday, September 24, 2010

Tri-Care's Recovery Rights

Does an injured claimant have any made whole rights in relation to Tri Care's lien or subrogation rights? My client is a catastrophically injured young boy with BI limits of $100K, Medical payment coverage of $30K and UIM limits of $300K. His medical expenses are in excess of $100K and climbing. Is there some way to protect my client from Tri Care co-opting the benefits leaving him with little or nothing?

A few thoughts in regard to your question.

Tri-Care's Rights

Tri-Care derives the authority to assert a subrogation claim under the Federal Medical Care Recovery Act (FMCRA), 42 U.S.C. §§ 2651-2653, which authorizes recovery of the reasonable value of medical care furnished or paid for by the United States under circumstances creating tort liability for such medical care in a third party. 32 C.F.R. § 199.12(b).

Made Whole Considerations

Allen v U.S., 668 F.Supp. 1242, 1257-58 (W.D. Wis. 1987), concludes that 42 U.S.C. § 2652(c) gives priority to the injured person and that he or she must be "made whole" before the government can recover its medicals. However this case needs to be taken with a grain of salt. It is important to note this case was not decided solely on the made whole issue. The fact that the liable party was the husband of the injured party and it was the husband who qualified for government care is significant. Before addressing the made whole issue the court had already determined that FMCRA did not give the government the right to seek reimbursement. It is also worth noting that this is the only case, to my knowledge, which has interpreted 2652(c) as a made whole rule. Furthermore, the government has not accepted the made whole argument in dealing with other statutory rights of reimbursement (Medicare, Medicaid, etc.).

Commercial Union Ins. Co. v. US, 999 F.2d 581 (C.A.D.C). The Court here stated that FMCRA is silent as to priority of government's right to recover from tort-feasor medical expenses it incurred on behalf of injured employee over injured employee's right to recover nonmedical damages from tort-feasor. The Court also pointed out that 42 USC 2652(c) allows the injured party to recover damages for those damages not covered under FMCRA and giving the government priority would essentially render this section useless. Ultimately the Court held the interpleaded fund would be distributed on ratable basis, such that each claimant received share of fund proportionate to their share of total judgment figure, since FMCRA was silent on question of priority of claimants' rights and since "equity is equality." While the circumstances of this case may vary from your question, the case certainly provides some guidance.

Procurement Costs

It is also worth noting that in a case where the injured party pursued the tort claim and the government passively waited for reimbursement, courts have required an equitable reduction in the government's claim. Mosey v. U.S., D.Nev.1998, 3 F.Supp.2d 113. As a general matter, in our experience, the government is willing to take such matters into consideration and may adjust accordingly so the injured party receives some compensation.

First Party Coverage

It can be argued that the United States does NOT have a right to the proceeds of first party insurance proceeds under the Federal Medical Care Recovery Act [1(a)., 42 U.S.C.A. 2651(a)]. The Court in Government Employees Ins. Co. v. Andujar, 773 F.Supp. 282, held that the United States did not have a direct right to UM proceeds under FMCRA. The FMCRA only gives the government the right to recover from the tortfeasor. In this case neither the injured party nor their insurer, were considered tortfeasors and thus the government did not have a right to recover on any settlement from the Uninsured/Underinsured motorist portion of an auto policy.

While, there is no direct right under FMCRA there MAY be a right under the express terms of the insurance policy and applicable state law. This second prong of the analysis requires an evaluation of the policy itself. If the government can qualify as an "insured" or "third party beneficiary" under the terms of the policy then they will have a right to these proceeds. In the aforementioned Andujar case the Court looked at the specific provisions of the policy. Because it was determined that GEICO's automobile policy could not be interpreted to include the government as an "insured" (policy actually specifically excluded the government from this classification), the Court held that the government could not recover the proceeds under this alternative theory. Thus in your case I would recommend that you obtain the policy for further analysis.

Michael D. Russell, Esq.