In the tri-state area that we live in, Med Pay/PIP coverage is confusing. Med Pay stands for medical payments coverage. More precisely as that term is used in Virginia, it is medical expense benefits coverage. However the term is limited to the state of Virginia. In Maryland and D.C., that equivalent coverage is called PIP or Personal Injury Protection coverage. Medical Payments coverage, regardless of the state, is governed by the law of the state where the policy was issued. Therefore you need to always look at the law that governs those types of policies. Plus Med Pay contracts are just contracts. So you need to read the contract to figure out the scope of coverage.
Car Accident Med Pay Virginia
In Virginia this coverage may be waived. The coverage typically is between $2,000 and $10,000.
Who is Covered?
The definition of “insured” then is as follows:
A. The named insured or any family member who occupied the covered vehicle or are struck by a motor vehicle. A named insured occupying an owned and uninsured motor vehicle is not covered. Cotchan v. State Farm, 250 Va. 232 (1995)
B. Any other person suffering injury while occupying: 1. Your covered auto. 2. A motor vehicle not owned by you or any family member which you or any family member are operating. 3. Any auto or trailer you do not own while used as a temporary substitute.
The motor vehicle causing the injury must have been used as a motor vehicle. The personal auto policy extends coverage to circumstances where an insured is operating a friend’s vehicle and is involved in a collision. Everyone in the vehicle is entitled to the driver’s med pay coverage including passengers who would not otherwise be insured under the med pay policy. It also extends coverage to temporary substitute vehicles which are treated the same as a covered vehicle.
A different policy on a separate owned vehicle is not going to provide coverage for you. Likewise a vehicle furnished or available for your regular use cannot be a source of coverage. Virginia Med Pay Endorsement Exclusion 2.E bars Med Pay for injuries sustained while driving a car owned by a family member. That exclusion however does not apply to the named insured or a resident spouse. As such a husband would be able to get coverage under wife’s vehicle covered by a separate policy and to which he is not the title owner.
The carrier cannot reduce its med pay coverage by the amount paid by other medical expense benefits coverage available to the insured.
Assume the husband is involved in a crash driving vehicle titled and insured in the wife’s name. The wife’s policy has no Med Pay. The husband and wife live with wife’s parents. Parents have Med Pay coverage on their policy. Since the husband is not a named insured or spouse on the parent’s policy, he is not covered for Med Pay.
If the claimant signs a general tort release, that does not release the med pay claim. Berczek v. Erie, 259 Va. 795 (2000)
Priority
Where there is valid and collectable Med Pay coverage under one or more policies, then the priorities are as follows: (1) Coverage on the vehicle the insured was occupying; (2) coverage of the operator of the vehicle the insured was occupying; (3) coverage of the insured.
How Much?
In Virginia, Med Pay coverage is neither primary nor secondary. It is a second layer of coverage payable directly to the insured. Even though the provider may have been paid by health insurance, the insured can still make a claim against the carrier and in effect receive a double recovery. The amount that can be recovered is the amount that the insured is directly responsible for or, if the insured has health insurance, then the amount of the actual payment as evidenced by an Explanation of Benefits or some equivalent. If the insured is required to make a payment in addition to the actual payment by the health insurance carrier or Medicaid or Medicare, then the amount shall be increased by the payment made by the insured.
When a healthcare provider renders no bill such as with the VA, then the usual and customary fee charged in the community is what is owed.
There are certain statutory minimums. Student transportation requires minimum Med Pay coverage of $5,000.00. Taxicabs however only have to have $1,000.00 Med Pay coverage for transportation of students.
Stacking
Virginia allows the stacking of coverage up to four (4) personal autos. Virginia Code § 38.2-2201(C) For instance if you have four (4) vehicles on the same policy and your medical payments coverage on each vehicle is $10,000, then you have a total of $40,000 in coverage or the 4 highest limits involved.
There are several instances where there could be additional stacking. That applies where the vehicle in question is a non-owed vehicle or a “temporary substitute vehicle”. Coverage can be further stacked if your client happens to reside in the same household with relatives who have Med Pay coverage under their own separate policies. For instance, assume that your client borrows a neighbor’s car and he is injured. The neighbor has four (4) cars. Each with $10,000 Med Pay coverage. You’ve got access to that $40,000. Assume further that your client lives with his parents and two (2) siblings. Each of them have four (4) cars with $10,000 in coverage. Assume further that your client has four (4) cars with $10,000 in coverage. You now have $200,000 in Med Pay coverage. The key to this of course is the fact that your client was driving a non-owned vehicle.
Also assume that your client is in a vehicle driven by someone else besides its owner. Not only does he have all of the above coverage, but he may also have access to that driver’s coverage which could ramp the coverage up to as much as $240,000. Assume that driver lives with his sister who has four (4) cars with each $10,000 in coverage. Then you may have access to that $40,000 in coverage, bringing the total coverage up to $280,000.
Stacking may also be found to exist in instances where the injured party is a resident of two households. For instance if a child is subject to a Custody Agreement where both parents have joint custody and the child spends time with both parents. In Nationwide v. Robinson, 36 Va. Cir. 193 (1995), the court found that the child was a resident of two households. As such he was a first class insured as to the households of both parents and as to all auto policies insuring each resident relative in those two households and could stack the coverage on each car on each such policy up to four cars per policy.
Assignment
The only way that the Med Pay carrier can make payments directly to the provider is through an assignment of benefits (AOB). Frequently hospital admission documents contain an AOB. Any attempt to assign Med Pay benefits under an auto policy must comply with the very strict requirements of Va. Code § 38.2-2201.D.
State and federal assistance programs that provide medical benefits to someone injured in an auto crash can demand payment directly.
Subrogation
The Med Pay carrier has no right of subrogation against any third party recovery. However self-funded ERISA plans and other federal plans that have the appropriate language may be able to assert subrogation against Med Pay. In regards to a self-funded ERISA plan, any claim for subrogation or any claim that the Med Pay is primary is problematic. A claim that Med Pay is primary is based on the following:
- A self-funded ERISA plan is not deemed to be insurance. The deemer clause is found at 29 U.S.C. 1144(b)(2)(B).
- Under the Med Pay statute at Va. Code § 38.2201.A(3)(b), the amount of Med Pay benefits is governed by how much the health insurance carrier pays. Under the deemer clause, however they’re not deemed to be an insurer.
- You need to look at the plan documents which may very well say that the administrator doesn’t apply any coordination of benefits provision in the plan if state law prohibits it. Va. Code § 38.2-3405 says that coordination of benefits cannot reduce Med Pay.
So the position that you probably should take when a self-funded ERISA plan claims that Med Plan is primary is to resist it, demand the plan documents and then try to construct an argument that state law will not be superseded in this instance.
If the insured has Medicare or Medicaid, they may assert liens against Med Pay. If you’re dealing with these entities, you should report the Med Pay received. Medicare typically uses the Med Pay amount in determining the amount that needs to be repaid to it by the insured.
Any plan, whether it’s ERISA, federal or otherwise that attempts to make Med Pay primary should be confronted with the following:
a. Virginia Med Pay only pays based upon what health insurance pays. If health insurance hasn’t paid, then Med Pay does not pay.
b. If applicable, this may be a violation of the Virginia Anti-Subrogation Statute.
Exclusions and Conditions
Exclusions to Coverage
- Injuries sustained while occupying any motor vehicle not covered under the policy that is owned by or that is furnished for the regular use of any resident relative. However this does not apply to the named insured or the resident spouse.
- Injuries sustained while the vehicle is being used for livery.
- Injuries sustained when occupying a motor vehicle without a reasonable belief that the insured is entitled to do so. This however does not apply to a resident family member using a covered vehicle owned by the named insured or resident spouse.
- Virginia pedestrians cannot claim benefits through the striking vehicle’s policy.
- Intentional acts or workers’ compensation coverage.
- Lack of permissive use.
Your client owns two vehicles. One is insured and the other is not insured. He is injured while occupying the uninsured vehicle. He cannot seek coverage under the uninsured vehicle. If however he is injured while a passenger in a vehicle owned by his son who lives with him, your client would be covered under his insured auto since he is a named insured.
Your client’s daughter is a passenger in a neighbor’s vehicle which is not furnished or available for her regular use. The daughter is entitled to coverage under the host vehicle, your client’s policy and also the coverage under her brother’s policy when he is a resident relative of your client’s household.
If however the daughter had been a regular user of that vehicle, then she would have no coverage.
Also after the crash occurs, there are several conditions that have to be met. These include giving notice of the crash to the carrier and providing a proof of claim. The Med Play insurer is required to pay even though there is not prompt notice given. It would be difficult for the carrier to prove prejudice. Also you may have to submit to a physical exam and authorize the carrier to obtain your medical records.
Limitations
Beware that there could be a contractual limitation that is shorter than what the statute mandates.
Non-Auto Policies
Non-auto policies may be different. In particular they may contain provisions that require Med Pay payments to be offset against any liability payment. What that means is that to the extent they make any Med Pay payment, then their liability exposure is reduced by that amount. In auto policies there is no such offset.
Regardless of what the policy says, there is an argument to be made that any such payments are not a collateral source. That is, they’re coming from the defendant. The counter to that is that Med Pay coverage is first party coverage. That is, the plaintiff is an insured or at least a beneficiary of the coverage.
If the defendant does attempt to offer evidence of having made payments, that may help the plaintiff. That leaves the defendant in the position where they’re admitting to the jury they have paid some of the plaintiff’s medical bills.
Car Accident Med Pay-Contact Us
Call or contact us for a free consult. Also for more info on insurance coverage see the Wikipedia pages. Also see the post on this site dealing with auto liability insurance issues.
