Can the UM Insurer Reduce/Offset Payments Made by Workers Compensation Insurer When Settling With a Plaintiff/Employee?

In the odd circumstances when an employee is injured on the job and the other vehicle does not have adequate insurance, the employee may seek compensation from his employer's UM insurer.

 

Let's not address the issue waiver of UM coverage for a moment and just focus on offsetting the workers compensation payments made against the UM settlement amount.

 

In Cutsinger v. Redfern, 2008-2607 (La. 5/22/09), 12 So. 3d 945, an uninsured motorist carrier was allowed to reduce its payments by the amounts paid to or on behalf of plaintiff by the workers' compensation insurer.

 

In Redfern, the insurance policy specifically mentioned that any amount payable under the policy shall be reduced by any amount paid or payable to or for the insured under any workers' compensation, disability benefits, or similar law. The plaintiff tried to argue that this was in derogation of state law, because it allegedly reduced the liability of uninsured motorist coverage. The Supreme Court of Louisiana rejected that argument and reversed the trial and appellate court’s holding that the UM coverage could not be reduced.

 

The Redfern Court pointed out that in Bellard v. American Central Ins. Co., 07–1335 (La.4/18/08), 980 So.2d 654, an employer's uninsured motorist carrier was entitled to a credit for medical and disability wage benefits paid on behalf of or to the plaintiff by the workers' compensation insurer. That ruling came despite that the  uninsured motorist insurance policy did NOT  contain language dictating the reduction in coverage for benefits paid under workers' compensation insurance. The Bellard court held the employer's uninsured motorist carrier was entitled to the credit based on principles of solidarity and the inapplicability of the collateral source doctrine.

 

The Redfern court applied those same principles of solidary obligations and a finding that the collateral source doctrine did not apply, as well as the purpose underlying the law governing uninsured motorist coverage, and found the language contained in the insurance policy relating to the reduction in uninsured motorist payments for any workers' compensation benefits paid to the insured was not against public policy and was therefore enforceable.

 

Under the rulings from Redfern and Bellard, it is apparent that Louisiana law allows for an uninsured motorist carrier to be given a credit for medical and disability wage benefits paid to an injured employee/plaintiff by a worker’s compensation insurer, regardless of whether the insurance policy specifically states as much or not.

 

This should be evaluated in light of the  McDill v. Utica Mut. Ins. Co., 475 So. 2d 1085, 1092 (La. 1985), in which  the main issue was whether the plaintiff was entitled to penalty fees and attorney’s fees under the statute that granted an additional award when an insurance company failed to pay claims on a timely basis when it was apparent that the claim was valid.  Typically, attorneys in tort cases are allowed "McDill fees" from the tort claim when it also resolves the workers compensation claim.

 

 

The Louisiana Supreme Court found that the uninsured motorist carrier was arbitrary and capricious in its refusal to pay a reasonable amount over the $10,000 claim.  The UM carrier should have paid a reasonable amount over the $10,000 claim. There was absolutely no discussion of what the court meant by this, but it could be interpreted to mean that the Court automatically assumed that it was proper to deduct the $10,000 the plaintiff had already received from the amount that the uninsured motorist carrier was obligated to pay.

 

Based on McDill, Redfern, and Bellard, there is no reason to believe that a UM carrier should not deduct from their payments to an insured/plaintiff the worker’s comp benefits already paid to that insured/plaintiff. In fact, the Redfern and Bellard cases say that is the proper action to take. Under Louisiana law, a UM carrier may offset what has been paid by a workers compensation insurer for indemnity and medical expense.

 

Whatever amount was paid in worker’s compensation benefits should be  subtracted  from the uninsured settlement; however, how much is a reasonable settlement in in uninsured claim?

 

 

How much is the plaintiff's attorney entitled in McDill fees?

 

 

Remember a UM insurer MUST make an unconditional tender when there is sufficient evidence to prove the injury. 

 

So the yes, is YES, but....

Three Months Since Last Blog Post: Memorial to “Poppi”

Yep! Over Three months since  I last posted.

The reason is that between late September through Thanksgiving, my wife, sister, brother-in-law and I were helping to care for our stepfather who was in the last days of Lou Gehrig's disease. I will return to more regular posting on trucking issues soon, but for now, please  consider this eulogy to my step-father, Brodie Jack Whipple.

Since October 22 of this year,  I have spent more time with “Poppi” than in the last 20 years. 

Unlike my sister, I was never as close to Poppi.

Don’t get me wrong, I love him, but honestly, I never really knew him. To me he was always "Whip," a nickname for his last name, Whipple. Do his granddaughters and just about everyone else, he was known as “Poppi.”

I started calling him Poppi in the last year or so. I don't know why. I just did.  It seemed right.

I probably didn’t know him so well only because when our family gets together, most of the air-space is taken up by ALL OF US  so that a quiet man like “poppi” would rarely  have room to make a comment. 

On the occasion when he could get a word in edge-wise - OR- if something NEEDED to be said, it was usually pretty weighty.

In the last few weeks of his life, as  Poppi and I got pretty “up close and personal,” some of the weightier comments  included:

1.     “Your mother has been the best part of my life.”

2.     “I don’t know how it happened:  The words just came out of my mouth, “Will you marry me?” and the words just came out of her mouth “Yes.”

-         Mom and Whip were married in the very room where he spent his last days looking out the window and  watching TV with the ever-present clicker

-         Funny thing, even when he could not speak, he had control of the clicker

3.     “Tell your girls (Jessica and Erica) how much joy they have brought to my life.”

4.     “You’re a good boy.”

5.     “When is Joan coming over?”

-         This is a phrase that I ALWAYS heard from Poppi because no matter how many times I was in town for business  and stopped by, he would  always say, with a twinkle in his eye, “It’s good to see you, but when  is Joan coming over.”

I love him for the affirmation and kindness he always showed Joan.

The first week that Joan tagged team from Shreveport to take care of Poppi, she made him  oatmeal , which he went on and on about.

A few days later I made him the same syrupy oatmeal that Joan made, but that same familiar  twinkle in his eye, he said: “Tell Joan that I like the way she taught you to make oatmeal.”

Not to be outdone, it was time to introduce Poppi to McDonald’s breakfast burrito, which he  ate almost every day for  as long as he could eat.  

I surpassed Joan in something!

 

He loved the backyard and I had the privilege of clearing away a bunch of brush around the Lady Bankston roses planted by my sweet grandmother, Mema,  and his pear tree  this past summer.

There were many things he built and planted for Mom and the birds. I thanked him for doing that … even if it DID require me to sweat off ten pounds working in his yard!

He loved Sam, his dog. He knew when Sam needed something. Even when he could barely talk, Poppi would remind me to take care of Sam. The same for that obnoxious  cat, named DC for “damn cat.”

Above all, he loved my mother.

He told me recently “I have hardly ever said No to your mother.”

He was the bread to my mother's butter; the salt to her pepper.

One of the last things, I told him was how much I loved him for loving Mom, Leisa and Joan, my wife the way he did.  He was a good and gentle man. 

In these last days we had some good talks about his hometown of Mer Rouge, his paintings, his mother, CNN, Fox News, Duck Dynasty, “Big Bang” the television show .

I also endured  the weather channel, the antique road show, The Neighbors, the Young & The Restless (that he watched TWICE a day) and football.

We were able to talk about faith issues several times.  These talks were never heated or controversial. The last time I talked to Poppi was when I knew he wanted to go, but didn’t know “how.” I reminded him of some of our earlier talks that:

            God is infinitely merciful.

That God, in his mercy, became human in Jesus to literally bear Poppi’s   disease on the cross  so that Poppi  could  be with God  eternally healed. 

I encouraged Poppi to simply trust Jesus to take his hand and go ahead and pass in peace.