June 2011 Archives

Michigan Senate Repeals Motorcycle Helmet Law

As mentioned previously on this blog, tings are changing in the great state of Michigan.  That state's senate voted to repeal the mandatory helmet law for motorcycle riders over the age of 21. As reported in the Detroit Free Press: 

Motorcyclists 21 and older could ride without a helmet, under a bill passed Tuesday in the state Senate.  Approved on a 24-14 vote, the bill goes to the Republican-led House, where it is expected to pass.  

The bill was amended to require motorcyclists to buy a minimum of $100,000 insurance coverage for injuries.

If the bill passes both the Michigan senate and house, then it will be up to the governor, Rick Snyder to sign or veto the bill.   Two times before Mr. Snyder's predecessor, Former Gov. Jennifer Granholm, vetoed legislation that would have repealed the mandatory helmet law for Michigan motorcycle riders.     As could be expected, there is differing viewpoints on the propriety of the Michigan motorcycle helmet law. 

Supporters of the current helmet law say repealing it would result in more serious injuries from motorcycle accidents, which would add to insurance costs for non-bikers.

Opponents of mandatory helmets say it should be a personal choice and that requiring them keeps many bikers from other states away

Arizona Health Care Medical Provider Liens: Balance Billing

Imagine that you have been paying your health insurance premiums faithfully for the past few years, always on time, and God forbid, you get into a motorcycle accident.  Because you have been paying your health insurance premiums, your health insurance company pays all your medical bills and expenses.  Because you were the victim in a motorcycle accident, you recover against the at fault driver who hit you.  

Let's say the settlement is for the state minimum of $15,000.00 and there are no additional assets or first party insurance coverage.  But before you get your settlement check, you find out that the hospital where you were treated is now asking for more money.  How could that be? Didn't your health insurance company pay the entire bill, so why is the hospital now asking for more money?  They can't do that, or can they? 

The answer to all those questions is that even though your insurance company has paid your hospital bill, the hospital can try to collect against your insurance settlement by the process know as "balancing billing". The hospital plays the balancing billing game with insurance companies and government payors such as medicare and medicaid (AHCCCS).  They have a contract with those payors that they will pay a set rate for treatment of victims.  If there is no lawsuit then that is all the hospital will get, but once the hospital finds out there is a lawsuit, that is when the so-called "balance bill" with true cost of treatment rears its ugly head.  The true cost can include widely inflated expenses to justify the hospitals much larger balance bill. 

The statutory basis of the lien are found is Arizona Revised Statutes 33-931 et seq.  The person or entities entitled to a healthcare provider lien under the statute are those who operate a healthcare institution or provide healthcare services, licensed in Arizona, or any political subdisvision or private entity with ambulances,operated, licensed, or registered in Arizona.  Absent an indemnification agreement with the defendant or his insurance company, no action may be taken against the injured victim to enforce the lien. 

Child Support Liens Against Recovery in Arizona

If you owe child support and you are entitled to a personal injury settlement from an insurance company, does the government have the right to take some or all of your settlement to satisfy your back child support?  Can they take it from third party liability recovery or from your first party UIM/UM insurance?   

Under Arizona Revised Statute 25-505 

"A. The department or its agent may issue a limited income withholding order to any employer, payor or other holder of a nonperiodic or lump sum payment that is owed or held for the benefit of an obligor... 

E. For the purposes of this section, "lump sum payment" includes: 

10. Personal injury awards.

Thus, this statute gives the authority to the Arizona Department of Child Support Enforcement (DCSE) to collect against a victim's injury settlement to satisfy child support arrears.   The mechanism by which DCSE collects against a insurance settlement is called Limited Income Withholding Order, LIWO, and it is the same procedure that DCSE uses to collect against other sources, such as federal or state tax refunds. 

The biggest issue as of now is notice.  Exactly what obligation does the personal attorney have to investigate the existence of child support liens, particularly if the victim is unaware of them.  In this regard, Arizona has joined Child Support Lien Network, which is a third party vendor, to get settlement information directly from insurance companies regarding potential insurance benefit and payment disbursements. 

This area of lien law, unlike federal, statutory, and medical providers liens, is still relatively new and untested.   Thus, it is not clear what the exact procedure is for notice and an attorneys' responsibility in resolving child support arrears.  It does seem, however, that the Arizona Department of Economic Security and the Arizona Attorney General Office, do act reasonably in resolving these matters. 

Polaris Motorcycle Recall: Defective Handlebars

NHTSA, the National Highway Traffic Safety Administration, has announced a recent recall because of defective handlebars.

Polaris Industries, a maker of motorcycles, snowmobiles, all-terrain vehicles and other power-sports equipment, is recalling certain Victory Cross Country motorcycles from the 2011 model year because their handlebar clamps or risers may have been machined improperly.

According to Jonathan Welsh of the Wall Street Journal, the recall includes "1,228 KTM 450 EXC, 530 EXC and 690 Enduro R, and Husaberg FE 570 and 570s models built from November 2009 through October 2010."

According to Motorsportsnewswire, the company will replace the defective equipment free of charge.  Owners may contact KTM customer service at 1-888-985-6090, or they can call NHTSA at 1-888-327-4236 (TTY 1-800-424-9153) for more information. 

Texting while Drinking and Driving Hurts Two Teens

Nassim Taleb has a book called The Black Swan in which he makes the point that very rare events, things that you would never expect to harm you, have a way of hurting you when you least expect it. And just because something has not happened does not mean it will never happen.  The entire book is essentially a treatise on Murphy's Law, if something can go wrong, it eventually will.

A recent accident out of New York state makes that point crystal clear (as reported by Kyla Igoe of WKBW): 

"If your doing all those things, many times you get lucky and you never hear about it but not last night, we didn't get lucky. The combination of potential texting, potential drunk driving, dark roads, and a couple of boys walking down the street, it ended in disaster," said Niagara County Sheriff James Voutour.

The Sheriff is referring to an accident in which "two Lockport teenagers are recovering in the hospital after being struck by an alleged drunk driver."  As if drinking and driving was not bad enough in itself, "[p]olice say the driver [ 36 year old Amy Schumacher of Gasport] admitted to texting her babysitter just before the crash."

In Arizona, it is of course to drink and drive if either the driver is impaired to the slightest degree, or if the driver's blood alcohol concentration is above a .08 BAC within two hours of time of driving.  It is not illegal in the state of Arizona to text while driving, but that is against city code to text while driving in Phoenix. 

It may be time that the state legislature decided to ban texting while driving as well.  It is great that the City of Phoenix decided to do so, but they do not have the power to make texting while driving a felony.  If a distracted driver kills or hurts someone seriously because he or she was texting, I don't see any logical reason why that should not be a felony.