If you live in Illinois and are hurt in a Florida auto accident, different laws may apply to your case than if you live in Florida.
Different laws may also apply if you’re making a claim under a Illinois auto insurance policy (even if you live in Florida) and you’re hurt in a Florida auto accident.
Illinois Medical Payments Coverage May Pay Your Bills from Your Florida Car Accident
Medical Payments (“Medpay”) coverage may pay medical and funeral expenses for you or your passengers if injured or killed in your vehicle in a Florida accident.
It also covers you and your family members if struck by a vehicle while walking or while riding in another vehicle in Florida.
This coverage pays even if you partially cause the accident.
You May Need to Pay Back the Illinois Medpay Insurer From Your Florida Personal Injury Settlement
If the Illinois auto insurance policy says that a medical subrogation claim is limited to recovery in a third party tort lawsuit only to the medical expenses, it is valid. Manago ex rel. Pritchett v. County of Cook, 2016 IL App (1st) 121365, ¶ 16 Bernardini, 64 Ill.App.2d at 466-67, 212 N.E.2d 499 citing Bernardini v. Home & Automobile Insurance Co., 64 Ill.App.2d 465, 467, 212 N.E.2d 499 (1965).
Thus, Illinois resident who is hurt in Florida will need to repay a Medpay insurer from the personal injury settlement.
Any Medpay payments that an insurer has made under an Illinois auto policy are reduced proportionately where the recovery is diminished by either (1) comparative fault and/or (2) uncollectibility of the full value of your Florida car accident claim due to limited liability insurance.
The subrogation claim or other right of reimbursement claim shall be diminished in the same proportion as the personal injury or death estate claimant’s recovery is diminished. (770 ILCS 23/50(2) new).
This law says that after reducing the claims for either comparative fault and/or limited liability insurance the party asserting the subrogation claim or other right of reimbursement shall pay their pro rata share of attorney fees and costs of collection.
This is known as the “creation of the fund” doctrine.
For example, assume that the at fault driver had $100,000 of insurance coverage and the case settles for substantially less than the full coverage, say $60,000. The injured person could only seek a reduction in the subrogation claims by the percentage of the injured person’s fault causing the settlement to be $60,000 instead of its full value.
This would not necessarily require proof of the “full value” if liability evidence is presented establishing that the injured person bore some responsibility for their injuries. Crazy as it may seem, this puts the injured person in a position where he or she is trying to show that they were partially at fault in the incident causing their injuries.
If the case settles for the full policy limits of the at fault party the injured person can seek a reduction in the subrogation interest by showing that his claim was worth more than the policy limits.
In this situation using the same insurance policy coverage of $100,000 and a settlement of $100,000 the plaintiff could potentially show that her claim was worth $5,000,000 and therefore she received only 2% of the full value of the claim. Therefore, the subrogation interest should be reduced to 2% of its full value.
Does an Illinois Resident Have to Pay Back a Health Insurer If they Settle an Injury Claim for a Florida Accident?
The Illinois Health Care Services Lien Act addresses subrogation claims in pertinent part as follows:
If a subrogation claim . . . that arises out of the payment of medical expenses. . . with respect to a claim for personal injury . . ., claimant’s recovery is diminished:
(1) by comparative fault: . . .
the subrogation claim . . . shall be diminished in the same proportion as the personal injury . . . is diminished [and] . . . the full value of the claim shall be determined by the court having jurisdiction over the matter.
After reduction of the subrogation claim . . . due to . . . comparative fault . . ., the party asserting the subrogation claim . . . shall bear a pro rata share of the personal injury . . . claimant’s attorney’s fees and litigation expenses.
770 ILCS 23/50.
The Lien Act also provides for a pro rata reduction of a subrogation claim if the full value of a personal injury claim is uncollectible due to limited liability insurance. 770 ILCS 23/50(2). This means that the injured person won’t have to repay the full lien if he or she didn’t get a settlement for the full value of the case.
The Lien Act doesn’t apply if the injured person has health “insurance” through a self-funded ERISA employee welfare benefit plan. If the injured person got the health “insurance” through a big employer (like Walmart, Target and many others), the plan is likely a self-funded ERISA plan.
Illinois Resident Can Sue Careless Driver in Florida
If a careless driver causes injury to an Illinois resident while in Florida, the Illinois resident can sue the careless driver and others.
If you’re from Illinois, then you’re required to have Uninsured Motorists (“UM”) Coverage with limits equal to your Bodily Injury Liability Coverage limits unless you select lower limits in writing.
The minimum Uninsured Motorists Coverage limits allowed in Illinois are $25,000 per person/$50,000 per accident. Illinois law (215 ILCS 5/143a-2).
The Illinois UM coverage follows you to Florida. If an uninsured or underinsured careless driver caused your accident in Florida, you can make a claim against your Illinois UM insurance.
This is great because most vehicles in Florida aren’t required to have any bodily injury liability insurance.
Uninsured Motorists Bodily Injury Coverage Pays You and Others Under Your Auto Policy
This coverage pays for injury-related damages such as medical bills, lost wages, or pain and suffering that you and your passengers have as the result of an auto accident in Florida.
Uninsured motorist bodily injury (UMBI) pays when the accident is caused by an uninsured or hit and run driver. Illinois UMBI limits match BI limits unless you sign a rejection form.
How Illinois Underinsured motorist bodily injury (UIMBI) Works in a Florida Accident
Underinsured motorist bodily injury (UIMBI) pays when the at-fault driver’s BI limits are lower than your UIMBI limits.
Example of Illinois UIMBI in a Florida Car Accident
Assume that an Illinois resident has a an Illinois UIMBI limit is $100,000 per person, and the at-fault driver’s BI limit is $20,000 per person in a Florida Accident.
The maximum UIMBI available to an Illinois resident is the difference of $80,000. Your case would need to be worth $100,000 for the UIMBI insurer to offer you the $80,000.
Illinois UMBI and UIMBI Cases Are Subject to Arbitration
If you’re from Illinois and you’re hurt in a Florida car wreck, your claim under an Illinois UMBI or UIMBI policy must be arbitrated. You can’t sue.
All things equal, cases in arbitration are worth less than cases where you can sue.
This is because juries usually award more than arbitration panels, who are usually made up of lawyers that are more hardened to injury claims and typically award less money.
Illinois Resident Making a Claim Under a Florida UM/UIM Policy Can Sue
If you live in Illinois and a careless driver causes your injury in Florida, you can sue under an Florida auto policy that has UM/UIM insurance policy. All things equal, this adds value to the case.
Illinois Auto Insurers That Don’t Sell Policies in Florida May Pay Better for Florida Accidents
If you’re making a UM claim against an Illinois auto insurer that doesn’t sell policies in Florida, they may pay better than a Florida UM insurer.
This is because “out of state” insurers have a reputation for paying better in Florida car accident cases than insurers that are licensed in Florida.
But don’t get too excited. Most major insurers sell policies in Florida.
State Farm, GEICO, Allstate, Progressive, USAA and many others sell auto policies in Florida. Go to active company search to see if a car insurer that sells policies in Illinois is also licensed to sell car insurance in Florida.
If You’re From Illinois and Are Injured While Working in Florida, What Laws Apply?
Assuming that Illinois workers’ compensation pays your bills or lost wages, the injured worker has two years to sue for the workers comp claim. 820 ILCS 305/5
If the worker is paid under Florida workers’ compensation laws, the time limit to sue for workers comp is also two years. However, the injured worker should quickly give notice of the accident to his or her employer.
Workers’ compensation benefits paid under Illinois law entitle workers’ comp to be paid back from any personal injury settlement with a third party tortfeasor. However, the workers comp insurer does not have a lien on uninsured motorist insurance.
Again, the Illinois workers compensation insurer is entitled to recover its lien from the total settlement with the third party. However, the workers comp insurer must deduct pro-rata attorney’s fees up to 25%. This savings to the injured person is an advantage of hiring a Florida injury lawyer for the claim against the third party. This assumes that the accident happened in Florida.
If workers’ compensation benefits are paid under Florida law, then the workers’ comp insurer has to deduct pro-rata attorney’s fees up to 33 1/3%. This assumes that the case settles before a lawsuit.
If the injured worker sues a third party, the Florida workers compensation insurer will have to deduct pro-rata attorney’s fees up to 40%.
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