May 22, 2012
WSJ Treats Deborah Shank & Wal-Mart
The Wall Street Journal has an article today on Deborah Shank and Wal-Mart's subrogaton reach. You can find it here. I spoke and exchanged e-mails on several occasions with Vanessa Fuhrmans, the author of the article, about the Shanks. Vanessa accurately identifies and discusses the facts and legal principles involved. I discussed the Shank case when it was initially decided by the Eighth Circuit here and here. One fact I was not aware of before reading the WSJ article was that Deborah's husband recovered $300,000 from the tortfeasor as damages for his loss associated with Deborah's injuries. The article suggests that Wal-Mart did not attempt to pursue that recovery. Perhaps, in Wal-Mart's mind, not asserting a claim to Jim Shank's $300,000 was evidence of its corporate generosity. Whether the language of the plan document would allow such a claim is debatable.Category: General
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What I find particularly disturbing here is what you mentioned recently about an equitable application of the make whole doctrine.
It seems that the health insurer has a leg-up in being made whole before Deborah Shank does.
The reason seems to be simply because the plan says so.
I was under the impression this doctrine was originally intended for the human victims, not the insurance companies.
The article mentioned that 1-3% of the claims are recovered through subrogation.
This leads me to believe that the premium savings is 1-3%.
Premiums are ridiculously expensive, but is this the way humans act to emphasize the best of what we have to offer?
Those who are bothered by subrogation have a legitimate right to be so disturbed.
Those who see it as complying with the document are probably heavy smokers who are mentally challenged.
Don Levit