 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Pallay v. Nationwide Insurance Co.10/31/2005
IM provision did not provide a mechanism to divide the UIM benefits between the mother, the sister and the victim's estate. The UIM provision in Broughton was "per accident" and not "per person." Although there is some discussion of this in Broughton, it is not particularly relevant to our conclusion. The fundamental holding in Broughton is that a Medicaid lien should not act to increase the UIM benefits of the person who actually incurred the expenses giving rise to the lien. A Medicaid lien is an expense of the injured party, or as was the case in Broughton, the deceased party, and thus could not be used to reduce the "amounts available for payment" calculation, which reduction would in turn increase the potential maximum UIM benefits. According to Broughton, though, a Medicaid lien is not an expense of a wrongful death beneficiary making a claim under a separate insurance policy.
{ } In the instant case, Appellee is the policyholder, as well as the victim and the UIM claimant. The medical expenses he incurred were his own, and the Medicare lien that he is liable to pay is based on his own expenses. In our consideration of how Appellee's Medicare lien should be treated in this case, we rely on the reasoning in Littrell and Broughton, and conclude that Appellee is not permitted to increase his potential UIM benefit by deducting the Medicare lien from the "amounts available for payment" calculation.
{ } This same conclusion has been reached in other districts. Mathis v. American Commerce Ins. Co., 8th Dist. No. 83433, 2004-Ohio-2021; Clark v. Boddie, 2nd Dist. No. 20339, 2004-Ohio-2605.
{ } Based on the reasoning set forth above, Appellee is not entitled to set off his Medicare lien from "amounts available for payment" calculation under his own insurance policy for injuries he himself sustained, and thus, he is not entitled to any UIM benefits.
{ } "3. Pallay Is Not An Underinsured Motorist As The Amount For Payment From The Tortfeasor Is $100,000 And Nationwide Has Identical Underinsured Motorists Limits."
{ } Nationwide's argument here is only a rewording of what appears in the previous subissue, involving the interpretation of the phrase "amounts available for payment" in R.C. ยง3937.18(A)(2). There is one additional issue though, involving the Policy definition of uninsured and underinsured motor vehicle, that should be mentioned. The Policy contains the following provision:
{ } "1. An uninsured motor vehicle is:
{ } "a) one for which there is no bodily injury liability bond or insurance at the time of the accident.
{ } "b) one which is underinsured. This is a motor vehicle for which bodily injury liability coverage or bonds are in effect; however, their total amount is less than the limits of this coverage. See the Declarations for those limits.
{ } "* * *" (Policy, p. 14.)
{ } Even more important, the Policy states:
{ } "2. We will not consider as an uninsured motor vehicle:
{ } "* * *
{ } "e) any motor vehicle insured under the liability coverage of this policy[.]" (Policy, p. 14.)
{ } Under the Policy, an uninsured vehicle encompasses the definition of underinsured vehicle, and an uninsured vehicle cannot be one which is covered under the liability section of the Policy. Based on this simple analysis, Appellee cannot receive UIM benefits, because the automobile in which he sustained his injuries was covered under the liability section of the Policy.
CONCLUSION
{ } It is clear from the record and the previously cited caselaw that Appellant has at least three reasons for prevailing in this
Page 1 2 3 4 5 6 7 8 9 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|