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Mississippi Insurance Law – Part 5

Mississippi Insurance Law – Part 5

MISSISSIPPI Insurance-Related Law  — An A to Z Guide

Here’s the next post sharing our 2016 update.  If you like a full copy or have any questions, please email or call.

License Suspension

Upon the request of a plaintiff or his attorney in a case involving an automobile collision, a losing defendant’s license will be suspended if a judgment is not paid within 60 days and the plaintiff’s attorney requests that it be suspended.  Miss. Code Ann. § 63-15-25 through 63-15-35.  The statutes permit the lifting of the suspension for agreed upon installment payments.  The statutes only require the satisfaction of a judgment up to the minimum insurance limits required by law.

Liquor Liability

Mississippi has a statute which provides immunity from liability of those who lawfully sell or supply intoxicating beverages by permit.  However, this liability limitation does not extend to the holder of an alcoholic beverage permit, his agent, or employee who sells to a visibly intoxicated person.  Miss. Code Ann. § 67-3-73.

Social hosts are also immune from liability for serving or furnishing alcoholic beverages to persons who may lawfully consume such beverages.  Further a social host is not liable for those that consume alcohol on his premises and in his absence.   These immunities do not apply if alcohol consumption is forced by the host or he falsely represents that the beverage contains no alcohol.  Miss. Code Ann. § 67-3-73.

An adult is prohibited from permitting a party to take place at their home if they are aware that minors are obtaining or consuming alcohol.  Miss. Code Ann. § 97-5-49

Liens

Medicaid

Medicaid has a statutory right of recovery from the beneficiary and from third persons or entities that a beneficiary has a right to sue.  Miss. Code Ann. § 43-13-125(1) and § 43-13-305.  Effective 2014, the Mississippi Division of Medicaid has contracted with Health Management Systems, Inc. (HMS) to be the primary contact for all casualty recovery inquiries.  Contact information:  HMS Mississippi Casualty Recovery, P.O. Box 1350, Jackson, MS 39201-9820; 855-547-4984; missubro@hms.com.

Medicare

Medicare claims to have a superior right of reimbursement, which may be helpful to think of as a “super lien.”  Medicare is controlled by federal law.  See 42 U.S.C. § 1395y(b).  This means that Medicare is not required to notify anyone of its right to reimbursement, nor is it required to make a request for reimbursement in order to enforce its right to recovery.  Instead, the parties to a liability claim must notify Medicare of the claim, take action to determine the amount of the reimbursement and make payment accordingly.  This includes reimbursement for past treatment as well as protection of Medicare’s interests when future treatment will be necessary. the amount of the reimbursement and

Hospital/Medical

Unlike some other states, Mississippi has no general statutory provision for a “hospital lien,” “physician lien,” or “medical lien,” nor does there appear to be any case law creating a medical provider’s equitable lien on insurance benefits because of medical services rendered.  Memorial Hospital at Gulfport v. Guardianship of Proulx, No. 2012-CA-01714-SCT (Miss. September 12, 2013).   See also Assignments.  Mississippi law only permits a transfer of benefits for medical costs by assignment.

In 2013, Mississippi created a lien in favor of providers of burn care.  See Miss. Code Ann. § 85-7-301, et seq.  There are specific procedures that must be followed regarding notice of such lien.

 

ERISA

In some cases, payment of medical bills or other benefits may have come from an insurance plan subject to the Employee Retirement Income Security Act of 1974 (ERISA).  Although not a “lien,” most insurance plans have a contractual provision providing that they have a right to repayment or subrogation should the insured receive money from a tort settlement or judgment.

ERISA is codified at 29 U.S.C. §1001 et seq. and has broad application to most every conceivable employer sponsored health insurance plan with certain exceptions for plans described in §410 (c)(1)(A-D) (church plans, government plans, and trade association plans) and those exemption by the “safe harbor” provisions prescribed by the Secretary of Labor.  See 29 C.F.R. § 2510.3-1(j) (1993).

ERISA in and of itself does not have a provision requiring subrogation or giving an insurance company a lien on settlement/judgment proceeds.  Typically the right of recovery for an ERISA plan is governed by the insurance contract.  In  Yerby v. United Healthcare, 846 So .2d 179 (Miss. 2002), the Mississippi Supreme Court held that the made whole rule is not the default rule in an ERISA plan.  The Fifth Circuit has likewise rejected the made whole rule where it was not included in the ERISA plan, and held that a clear and unambiguous subrogation/reimbursement provision entitles an ERISA plan to the full amount of medical benefits paid on the insured’s behalf.   See Sunbeam-Oster Company, Inc. v. Whitehurst, 102 F.3d 1368, 1376 (5th Cir. 1996); AT&T v. Flores, 322 Fed. Appx. 391, 394 (5th Cir. 2009).  As a result, an ERISA plan seeking contractual subrogation in Mississippi against an adult’s injury claim is entitled to subrogation regardless of whether or not the insured has been made whole by the settlement or judgment.

Thus, like hospital or other medical providers, insurance payments under ERISA do not amount to a lien (i.e. an actual property interest in the settlement proceeds or judgment).  It will be important to inquire into whether the insurance provider claims it has an assignments of rights.

Chancery Court approval is required in order to assign a minor’s right to insurance proceeds. Methodist Hosps. of Memphis v. Marsh, 518 So. 2d 1227, 1228 (Miss. 1988); McCoy v. Preferred Risk Ins. Co., 471 So. 2d 396, 398 (Miss. 1985).  It has generally held that it is ultimately for the Chancery Court to determine the application and validity of subrogation claims, including those from an ERISA plan.  See Cooper Tire v. Striplin, 652 So. 2d 1102 (Miss. 1995) (“the subject of minor’s estates is a matter within the field of domestic relations not governed by ERISA,” and that the law did not “directly or indirectly relate to pension plans.”). See also, Clardy v. ATS Inc. Employee Welfare Benefit Plan, 921 F. Supp. 394 (N.D. Miss. 1996); O.D. v. Ashley Healthcare Plan, 2013 U.S. Dist. LEXIS 139266 (N.D. Miss. Sept. 27, 2013)(Judge Aycock)( “[P]laintiff’s claims for approval of the minor’s settlement are not preempted by ERISA.”)

Workers Compensation

A workers compensation carrier has a statutory right of reimbursement pursuant to Miss. Code Ann. § 71-3-71, for any benefits paid to an injured employee.  Furthermore, in order to validly settle a liability claim with a person who has received workers compensation benefits, certain approval must be obtained.   Miss. Code Ann. § 71-3-71.

NOTE: These requirements only apply to liability insurance settlements.  Payments of UM benefits are exempt from any such requirement and no approval need be obtained.  Cossitt v. Nationwide Mut. Ins. Co., 551 So. 2d 879 (Miss. 1989).

In order for the workers compensation carrier to become entitled to reimbursement it must: 1) intervene or join into the plaintiff-employee third party litigation (at any time before disbursement); 2) enter into a contractual subrogation agreement with the employee, or 3) file its own suit against the at-fault party.  Liberty Mutual Ins. Co. v. Shoemake,  11 So. 3d 1207 (Miss. 2013).

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A word of caution is necessary whenever legal issues are at stake. The information contained in these posts is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your counsel or the attorneys at Holcomb Dunbar.

2018