Car Accident Med Pay

Brien Roche

In the tri-state area that we live in, Med Pay/PIP coverage is confusing.  Med Pay stands for medical payments coverage.  More precisely as that term is used in Virginia, it is medical expense benefits coverage.  However the term is limited to the state of Virginia.

In Maryland and D.C., that equivalent coverage is called PIP or Personal Injury Protection coverage.

Medical Payments coverage, regardless of the state, is governed by the law of the state where the policy was issued. Therefore you need to always look at the law that governs those types of policies.

Plus Med Pay contracts are just contracts.  So you need to read the contract to figure out the scope of coverage.  

Car Accident Med Pay Virginia

In Virginia this coverage may be waived.

In Virginia, Med Pay coverage is neither primary nor secondary.  It is a second layer of coverage payable directly to the insured.  Even though the provider may have been paid by health insurance, the insured can still make a claim against the carrier and in effect receive a double recovery.  The amount that can be recovered is the amount that the insured is directly responsible for or, if the insured has health insurance, then the amount of the actual payment as evidenced by an Explanation of Benefits or some equivalent.  If the insured is required to make a payment in addition to the actual payment by the health insurance carrier or Medicaid or Medicare, then the amount shall be increased by the payment made by the insured.  

The only way that the Med Pay carrier can make payments directly to the provider is through an assignment of benefits. 

Basics

The basic rules then are as follows:

• Med Pay coverage may result in a double recovery for the insured.  That is, even after all of the medical bills have been paid, the insured may obtain a direct payment under the medical payments coverage.
• The only way that Med Pay benefits can be paid directly to the provider is if the insured signs an Assignment of Benefits.  
• The amount that the insured may obtain from the Med Pay carrier is the amount paid by the health insurance carrier plus any co-pays, self pays or deductibles.
• The Med Pay carrier has no right of subrogation against any third party recovery.  However ERISA plans and other federal plans that have the appropriate language and in regards to ERISA plans that conform with the statute may assert subrogation against Med Pay. 
• Any plan, whether it’s ERISA, federal or otherwise that attempts to make Med Pay primary should be confronted with the following:

         a.  Virginia Med Pay only pays based upon what health insurance pays.  If health insurance hasn’t paid, then Med Pay does not pay.

         b.  If applicable, this may be a violation of the Virginia Anti-Subrogation Statute.         

• If the insured has Medicare or Medicaid, they may assert liens against Med Pay.  If you’re dealing with these entities, you should report the Med Pay received.  Medicare typically uses the Med Pay amount in determining the amount that needs to be repaid to it by the insured.  
• A different policy on a separate owned vehicle is not going to provide coverage for you.  Likewise a vehicle furnished or available for your regular use cannot be a source of coverage.  Virginia Med Pay Endorsement Exclusion 2.E bars Med Pay for injuries sustained while driving a car owned by a family member. That exclusion however does not apply to the named insured or a resident spouse. As such a husband would be able to get coverage under wife’s vehicle covered by a separate policy and to which he is not the title owner. 

Other Features

Med Pay policies in Virginia typically range anywhere from $1,000 to $10,000 per vehicle.

The benefits cover not only the named insured but also family members who reside in the same household and passengers.  This also applies to those persons while they are pedestrians.

However Virginia pedestrians cannot claim benefits through the striking vehicle’s policy.

Virginia does not allow subrogation as to medical payments benefits.  That exclusion likewise applies to health insurance benefits.  The pertinent Code sections are § 38.2-2209 for Med Pay coverage and § 38.2-3405 for health insurance coverage.

Non-Auto Policies

Non-auto policies may be different.  In particular they may contain provisions that require Med Pay payments to be offset against any liability payment.  What that means is that to the extent they make any Med Pay payment, then their liability exposure is reduced by that amount.  That does not apply in auto policies where there is no such offset.  

Regardless of what the policy says, there is an argument to be made that any such payments are not a collateral source. That is, they’re coming from the defendant. They may be a source of payment but they’re not collateral. The counter to that is that Med Pay coverage is first party coverage. That is, the plaintiff is an insured or at least a beneficiary of the coverage.  

If the defendant does attempt to offer evidence of having made payments, that may help the plaintiff. That leaves the defendant in the position where they’re admitting to the jury they have paid some of the plaintiff’s medical bills. 

Stacking

Virginia allows the stacking of coverage up to four (4) vehicles.  For instance if you have four (4) vehicles on the same policy and your medical payments coverage on each vehicle is $10,000, then you have a total of $40,000 in coverage.  

There are several instances where there could be additional stacking.  That applies where the vehicle in question is a non-owed vehicle or a “temporary substitute vehicle”.  Coverage can be further stacked if your client happens to reside in the same household with relatives who have Med Pay coverage under their own separate policies.  For instance, assume that your client borrows a neighbor’s car and he is injured.  The neighbor has four (4) cars.  Each with $10,000 Med Pay coverage.  You’ve got access to that $40,000.  Assume further that your client lives with his parents and two (2) siblings.  Each of them have four (4) cars with $10,000 in coverage.  Assume further that your client has four (4) cars with $10,000 in coverage.  You now have $200,000 in Med Pay coverage.  The key to this of course is the fact that your client was driving a non-owned vehicle.  

Also assume also that your client is in a vehicle driven by someone else besides its owner.  Not only do you have all of the above coverage, but you may also have access to that driver’s coverage which could ramp the coverage up to as much as $240,000.  Assume that driver lives with his sister who has four (4) cars with each $10,000 in coverage.  Then you may have access to that $40,000 in coverage, brining the total coverage up to $280,000.

Exclusions and Conditions

In any of the Med Pay/PIP coverage situations that are addressed herein, there may be exclusions.  They are based upon intentional acts or workers’ compensation coverage.  Other exclusions are lack of permissive use or instances where the vehicle is available for the regular use of the driver but not owned by the driver.

Also after the crash occurs, there are several conditions that have to be met.  These include giving notice of the crash to the carrier and providing a proof of claim.  Also you may have to submit to a physical examination and authorize the carrier to obtain your medical records.

Car Accident Med Pay Maryland

In Maryland the PIP coverage is typically for $2,500 which pays not only medical expenses but also lost wages.  Carriers are required to offer this but the coverage can be waived.  Also there is allowed what is called a “limited waiver” wherein the named insured is not covered and the only persons that are covered are occupants under the age of 16 and other occupants who have not waived PIP on their own policies.

Limited stacking is allowed in Maryland where a claimant who is a passenger can collect PIP coverage under that vehicle and if their PIP coverage on their own policy has a greater limit, then they can claim that excess.  For instance if the coverage on the vehicle is $2,500 and the coverage on the passenger’s personal vehicle is $5,000, then each carrier pays $2,500. If PIP was waived by the passenger on their policy, then PIP is not available against the host.

In Maryland there are different rules that apply to motorcycles, bikes and mopeds.  However riders of bicycles, mopeds, motor scooters and electric bikes are all treated as if they were pedestrians and they’re entitled to PIP from the striking vehicle unless waived by the rider.

A motorcycle is considered to be a motor vehicle and therefore Med Pay may apply to the operator and passenger.

Passengers in taxi cabs and buses are excluded from coverage through that vehicle.  However passengers may claim coverage through their own personal vehicle.

In Maryland there is no subrogation based upon PIP coverage (Code § 19-507).

Car Accident Med Pay District of Columbia

In D.C. PIP coverage is optional.  Since D.C. is a no-fault jurisdiction, claimants who are injured in D.C. while occupying a D.C. registered vehicle must decide whether to file a PIP claim or a liability claim within 60 days.  Both PIP and liability claims can be filed if the threshold is met.  That threshold is substantial permanent scarring, disfigurement or permanent impairment.

In D.C., health insurance is primary.  Therefore the claimant can only collect co-pays and deductibles for in-network providers.

D.C. PIP only applies to D.C. residents.  D.C. residents who are injured in Maryland can make a PIP claim under their D.C. policy. They can also file suit in Maryland, but they must put the carrier on notice within 60 days of whether they elect to receive PIP benefits under their D.C. policy.  This could present a later bar to UM/UIM coverage if needed.  

D.C. Code § 31-2411 does allow subrogation as to PIP.  In addition the case of Hubb v. State Farm confirms such. 

A chart that may be useful is below:

Car Accident Med Pay Examples

Imagine that the claimant is either a pedestrian or a bicyclist.  She has her own auto insurance coverage, lives in Virginia and is involved in an accident in D.C. and the other vehicle is insured in Maryland.  PIP is available through the striking vehicle’s policy since the claimant is treated as a pedestrian.  The claimant may also use her own Med Pay coverage if she has it.  In this instance, health insurance would be primary but only if the provider is part of the network.  In addition the Med Pay on the claimant’s vehicle would be stackable up to four (4) vehicles.

Take another example:  Your claimant is a passenger in a bus or a taxi cab and does not have any auto coverage.  He resides in Maryland, is involved in a crash in D.C.  The other vehicle is insured in D.C. and the bus or taxi in which the claimant is a passenger is insured in Maryland.  Under that scenario there are no benefits available.  

Car Accident Med Pay-Contact Us

Call, or contact us for a free consult. Also for more info on insurance coverage see the Wikipedia pages. Also see the post on this site dealing with auto liability insurance issues.