Brad Pistotnik Law
Abogado El Toro

Do I have to pay back my car insurance for no-fault and personal injury protection benefits?

Do I have to pay back my car insurance for no-fault and personal injury protection benefits?

Many car accident and car wreck personal injury victims call the office of Brad Pistotnik Law on a weekly basis to ask about whether or not they have to pay back there no-fault benefits and personal injury protection (PIP) benefits. The answer to this question varies based upon the level of your damages as contrasted with the level of the policy limits of the defendant that caused the car wreck and the level of your no-fault or PIP benefits for medical and wage loss and other similar personal injury protection benefits. You then have to look at the total damages that you have for past and future medical expense, past and future wage loss and economic loss and past and future noneconomic losses. Additionally you have to look at the damage element known as loss of consortium which is a damage claim that you bring for your spouse.

K.S.A. 40-3113a is the appropriate statute in Kansas that governs no-fault and PIP benefits. This statute states that in the event an insurance company has paid personal injury protection benefits to their insured then they shall be subrogated to the extent of duplicative personal injury protection benefits. What

What does duplicative mean? Whether damages are duplicative is defined to mean damages recovered are duplicative when the failure to reimburse the PIP carrier would result in a double recovery to the insured. If you are the plaintiff, you would be the insured. This rule of law came from a case clear back in 1984. The Kansas Supreme Court made ruling about duplicative recovery in the case of State Farm Mut. Auto Ins. Co. v. Kroeker, 234 Kan. 636, 676 P.2d 66 (Kan. 1984). This same case controls the outcome of all cases involving PIP and has been modified statutorily to include K.S.A. 40-3113a where it talks about the limitation on the PIP carrier’s right to recovery.

This same statute discusses a situation where the PIP carrier does get to be reimbursed. In the event that the damages are duplicative that means you received a double recovery and your insurance carrier is entitled to be paid back. The question of when do your actual damages become non-duplicative is subject to different interpretation. I have recently been working on a case where the insurance company for the defendant has tendered $100,000.00 of policy limits for the defendant driver who caused the accident. This is normally called the tortfeasor. My client’s insurance carrier is unreasonable and does not understand the law that I’m discussing and is trying to be reimbursed for the $33,000 that they paid out for medical benefits and wage loss under the PIP benefits. As a result of this refusal to waive their PIP benefits I have had to file a lawsuit against the original defendant driver and have sought a declaratory judgment action to determine the amount of damages and to ask the court to find that my client’s damages exceed the policy limits of the defendant and the paid PIP benefits of my client from his PIP insurance carrier. Whenever you can prove that the damages exceed the combined limits of the policy limits of the defendant plus your combined limits of paid PIP benefits, your insurance carrier loses their right to subrogation.

Many law firms will not fight with them and give up the total benefits which actually ends up costing you. You must understand that if your attorney accepts a settlement offer that is achieved prior to working out a waiver of PIP benefits that are claimed by your insurance company, the finalization of the settlement and signing of a release will block your ability to obtain that waiver.

This same statute additionally addresses the fact that whenever the car insurance company for your company on your side of the case has paid PIP benefits pursuant to K.S.A. 40-3113a, the insurance company must pay the proportionate amount of attorney fees to your attorney so that you are not charged double for the attorney fees. The statement of settlement should show that the attorney fees are taken from the insurance carrier’s recovery and not from your portion of the recovery.

This whole analysis only matters if you have a large injury and a limited level of no-fault or PIP benefits. In a typical case where you have a whiplash or minor cervical strain and there are significant limits on the defendant’s side and your damages do not exceed the level of the policy limits plus the PIP benefits, your insurance company will be entitled to be reimbursed. In the event that you have a case where you are concerned about whether or not you have to pay PIP benefits back to your insurance company, you can call Brad Pistotnik Law for a free consultation at 800-241-BRAD 316-684-4400 or 620-THE-BULL. You can call for Brad Pistotnik on his cell phone at 316-706-5020. You can call for Tony Atterbury on his cell phone at 316-617-9237. We are The Bull Attorneys ® and we never charge a fee up front. You always have a free first consultation. We are open 24/7 and we answer the phone calls at night, on the weekends, on holidays and we wake up out of our sleep to try and help people that have been involved in car wrecks, motorcycle accidents and truck and semi accidents.