My son was involved in an accident. The DUI driver that hit him only had $25,000.00 in bodily injury coverage. My health insurance company h...

Question

My son was involved in an accident. The DUI driver that hit him only had $25,000.00 in bodily injury coverage. My health insurance company has been paying his medical bills which are going to exceed the $25,000. In subrogation does he have to pay the health insurance company back the entire $25,000? Or is there an amount that he is intitled too?

Answer

Your question makes this sound like you are doing something very foolish - negotiating a major insurance claim without a lawyer. In cases where someone is underinsured, you need an experienced lawyer to see if there is other coverage (possibly your own) or assets the drunk driver may have that can be pursued, and also to determine if your health insurer does or does not have a right to reimbursement (we don't have enough information here to answer).

Answer

To answer your specific question, the health insurer will try to BS you into paying it all of the liability insurance to it initially then will act like it is doing you a favor by reducing what it takes somewhat. If your health insurance is a private policy you or your son purchased then that is regulated under Georgia law. The Law of Georgia states that in order for health insurers to be able to enforce such a subrogation claim the injured person (your son in this case) has to be "made whole" from all losses including both economic and non-economic.The amount of the DUI driver's liability insurance is not enough to satisfy that requirement so you would not owe the health insurer anything back. If the health insurance policy came about as a result of someone's employment (either your son, you or another family member) then the situation is a little different. The subrogation would then be governed by a Federal Statute called ERISA. The "made whole" requirement would still exist but it is possible that such was waived by the language of the policy and you might owe the liability coverage amount back to the health insurer depending on the language of the policy. This is complicated stuff and I strongly urge you to get legal advice from an attorney experienced in such matters. Most lawyers will not know about this.Only the most expert personal injury attorneys will understand this issue.