Wal-Mart persues Shank's (local family) trust fund

Southeast Missourian | January 29, 2006 | Rudy Keller

[Jimbaugh]

When you work for Wal-Mart is not just a job it's slavery.

They own you. !!!! Wal-Mart is a danger to the United States. Too big and too powerfull.

[dinodino]

Sounds reasonable. She should reimburse Wal-Mart, per the terms of the contract.

[Doohickey]

Wal-Mart is going to lose this one. This is 21st century America, where it is no longer required to honor your commitments. Today's professional athletes are the most public example of this.

Wal-Mart even loses if they elect to try and collect. If they decide to do nothing, it sets a precedent that they are flexible in enforcing the terms of their contracts.

Another issue is, this is the sort of thing that drives up insurance premiums for the rest of us. Wal-Mart and/or their insurance underwriter won't lose that money. That $450k will be recovered in the form of higher premiums for everyone else.

I'd much rather donate to this woman's trust fund directly. Do you have any information on how to do this?

[kcvl]

Lee, a law professor in Georgia: "The case is even more convoluted
than you [stated]. One aspect concerns how well the Shanks' lawyer
understood all the ramifications of her legal situation. For instance, he
should have known about the subrogation clause in her medical insurance
and factored that into the Shanks' understanding of the settlement offer.
It's part of his job, although it's also certainly possible that he did
understand the situation and that the Shanks were lucky to get a
settlement at all from the defendant -- $900,000 isn't a great settlement
for someone in Debbie's plight, and it may be that the plaintiff's
evidence wasn't particularly strong. If the trust set up for her care is
truly irrevocable, Wal Mart can't get to it, and Debbie can be discharged
of any obligation to Wal Mart in bankruptcy."



Nick, an attorney in California: "Something struck me as wrong upon
reviewing the case summary: namely, that the attorney's fees and court
costs are chargeable out of a subrogation claim (meaning that Wal-Mart
would be limited to the amount paid over for the injured party's use).
Her attorney had to be aware of the subrogation claim, and unless there
was some intent to challenge the validity of the claim, Wal-Mart was
immediately entitled to at least that portion of the $417,477 reasonably
attributable to past medical expenses. I tend to blame her lawyer for
much of this situation. You do not let a client agree to a settlement
until you have explained to them exactly how much of it they will get to
keep. If you let them sign while they may be operating under a mistaken
impression as to what they will get out of the settlement, you have
failed to discharge your duties [as legal counsel]."



http://tinyurl.com/cwt5d

[kcvl]

Lawyers familiar with employment law said that while state law generally bars a health insurance company from trying to get a piece of a settlement, self-funded health plans are allowed under federal law to recover their costs. [...]



Wal-Mart's health plan explicitly states that it gets reimbursed first out of any settlement or judgment, up to 100 percent of the total amount of the medical expenses, according to the lawsuit filed by the Administrative Committee of the Wal-Mart Stores Inc. Associates' Health and Welfare Plan. The plan also explicitly states that, "All attorney's fees and court costs are the responsibility of the participant, not the plan," the suit says.

[Gabz]

I assume you forgot the sarcasm tag.............

[Reeses]

If a jury hears this, Walmart will lose.

Yes it will be jury hearing this, but one that actually interprets law rather than voting their emotions.

[shrinkermd]

Yes, you are right. If the facts are as stated this is common practice in Minnesota. I hate WalMart for having cheap, but good cookies. If it were not for Wat Mart my diet would go much better. Damn them!

What is worse not only are their cookies cheaper and better than my usual grocery store, WalMart actually makes money--a lot of money because they do a better job for me than their competitors. Something must be done!

[Slump Tester]

Are you old enough to remember Borden's Bananna Bars? Ummm - Grammaw always had them when I was a kid. Like a fudgesycle, only with bananna ice cream. (They quit making them about 30 years ago.)

Walmart has them in a generic bag of 18, 1/2 of which are fudge and the other 1/2 bannana.

Goes GREAT with their cookies! Give'em a try.

BTW - avoid the bags of bananna only - those are popsyscles not ice cream.

[Jimbaugh]

Wal-Mart is evil. They trade with Red China, use slave labor and drive american compnaies out of business.

Just because they fight with evil Unions doesn't make them good. This is the same choice the Germany people had in pre-WW2, NAZI's or communists. Which one was better?

[LoudRepublicangirl]

I am wondering if it is not actually Wal-Mart itself but it's insurance provider that she signed the contract with. I can understand that any insurance company would want to recoup their losses if there was a settlement awarded-otherwise they end up losing big time when people are injured by other parties,etc. It's a real heart-wrenching story. I saw it on the local news about a month ago and it's really sad that things have come to this for this woman and her family.

[Conservababe]

Evidently Mrs Shank has used some of the trust fund already. According to the article, which is scanty on facts, she would still be eligible for Medicaid. But, she would not be able to have a private room or private assistant.

Now, I am wondering why her husband would have to divorce her in order for her care to continue? Is it because he received over 100K personally in the settlement?

[Gabz]

WalMart is no different than any other retailer in the US, except they just do it better than most.

[Muleteam1]

Although my situation was different I once faced a situation where my health insurance company wanted to duel it out with my auto insurance company to see who would pay for an accident that involved a 1990 vehicle fire where I was burned quite badly. Upon seeing that the accident involved a vehicle, my health insurance immediately sought to transfer the responsibility to my auto insurance. This resulted in several weeks delay in payments for my emergency and hospital bills which were being sent to me. I was lucky that just weeks prior to the accident I had cancelled my "medical payments" under my auto policy to reduce redundancy. Had the "medical payments" insurance been in effect at the time of the accident, I would probably still be waiting for reimbursement. Crippling bureaucracy is not limited to government anymore.

Muleteam1

[Richard Kimball]

I know in Texas there are laws governing insurance claims. For example, because chiropractors frequently offered to treat people for insurance only (running weekly treatments for years), it's changed so that no one in Texas can treat for insurance only.

I think there is also the risk of setting precedent. When I worked for Michelin Tire Corporation, they would replace tires for any reason, including blowouts from road hazards. They ended up paying for entire accidents, including medical treatments, on a couple of accidents where the tires blew out as a result of, not because of, the accident. However, because they paid for part of the accident, they were ruled to having assumed responsibility for all of the accident.

While it could be money-grubbing on Walmart's part, it could also be that there are bigger issues of legality and precedent at stake. It could also be that the article's biased, and leaves out some key facts.

[conservative cat]

It is pretty standard practice that if you get a settlement for injuries the insurance that paid for treatment gets its money replaced. Usually that comes out second after the lawyers' fees. The one problem I have with that scenario is that the insurance gets reimbursed on the dime of the injured person (i.e. they don't get hit by the 1/3 + costs lawyer's fees as they get reimbursed.)

An example would be that Susan gets 100K for pain/suffering/whatever. She pays out 33K plus fees (let's say another 7K) for a total of 40K, leaving her with 60K. Insurance Co. paid out 30K for medical treatment and that comes off next leaving her with 30K. She comes out with 30K after paying 40K for attorneys' fees. The insurance co. is reimbursed in full without having to spend a dime or a minute on the attorney.

I would be interested to hear the terms of the settlement. If it was for all medical treatment, then Walmart should have been paid off the top before she got a cent. If it was for future/long term care, then Walmart should lay off or provide that for her.

[UnbelievingScumOnTheOtherSide]

In a case similar to this, I pursued money for long term care from an auto insurance company after immediate medical expenses were paid by an employee health plan. But I would not settle with the auto insurance until the health insurer relinqished their potential subrogation claim on the basis of the need for long term care. Faced with taking nothing either way and potential bad publicity, their lawyers very reluctantly relented. But that came from looking ahead and keeping the money off the table and out of their reach.

[LoudRepublicangirl]

Now, I am wondering why her husband would have to divorce her in order for her care to continue? Is it because he received over 100K personally in the settlement?



I'm not sure about Missouri but in Illinois a spouse who is still in the community is allowed to keep up to $95,800 in liquid assets if the spouse in long term care is on medicaid. If she is receiving social security disability he would probably be able to keep that income for maintenance. We call it spousal impoverishment.

[Conservababe]

I have just learned from an employee in management at Wal-Mart that they are solely self funded. BC/BS is only contracted to handle paper work. Wal-Mart themselves make decisions in denial of claims, according to the contract signed by the employee.

[LoudRepublicangirl]

I think that unfortunately people sign contracts and forms without even considering that something could possibly happen to them. The dangling of the healthcare coverage is too good to pass up to think about what could happen should they find themselves in that very situation someday. That's why I really feel for these people-both this couple and Wal-Mart as well. Wal-mart kept their end of the bargain and now that they are trying to collect on it they are going to get another wave of bad publicity for simply adhering to the contract that was agreed upon by the employee who signed it.