In Personal Injury Cases, No Reduction in Medicaid Reimbursement for Attorney Fees

State Gets Full Reimbursement
of Medicaid Injury Payments

State v. Peters, 946 A.2d 1231, 287 Conn. 82 (2008)

Mr. James Peters was seriously injured in a motorcycle accident in Connecticut in 1997.  Through the Medicaid program, the State paid $63,000 of the medical bills for his injuries.  The State also gave him $7000 in cash assistance.

Mr. Peters hired a personal injury lawyer to represent him with his accident case and received an arbitration award of $747,000.  After paying attorneys fees and costs of $221,000, 30% of the total award, Mr. Peters was left with $526,000.  The State asked for reimbursement of the full $70,000 it had paid to Mr. Peters in Medicaid benefits and cash assistance.  He believed the amount paid back should be reduced by the 30% that was deducted from his award for attorneys fees and costs.

The State sued Mr. Peters for the full amount.  He argued that Medicare reduced the reimbursement amounts for bills related to personal injury accidents by the percentage of attorney fees and Medicaid should do the same.  The court disagreed.  He appealed to the Connecticut Supreme Court, which also disagreed.

The Supreme Court justices stated that nothing in either the Federal or State statutes regarding Medicaid requiring this kind of reduction.  While it could be argued that a reduction would be a fair thing to do, the Court said, it was to the Connecticut legislature to change the law.

             The legislature has not changed the law.  The result is that if someone in Connecticut needs help from the State to pay for medical bills related to a personal injury accident case, the State gets reimbursed in full, without any reduction for attorney fees.

Injured Motorcycle Passenger Loses Claim Against Police Officer at Prior Accident Scene

Passenger Hurt When Motorcycle
Swerves to Avoid Tow Truck at
Prior Accident Scene

Faulkner v. Daddona, 63 A.3d 993, 142 Conn.App. 113 (Conn.App. 2013)

Ms. Patricia Faulkner suffered personal injury when she was thrown off the back of a motorcycle that came upon an accident scene and swerved to avoid a tow truck that she claimed unexpectedly pulled out and blocked both lanes of travel on Route 262 in Watertown.  Her lawyer sued a police officer at the scene of the prior accident and the town’s police chief claiming that the accident scene was not properly secured.

            The police chief and police officer successfully asked the court to throw out the case on the grounds that Connecticut personal injury law protects municipal employees from lawsuits for injuries if the employees are performing activities that require them to exercise discretion.  The court threw out the case and the Connecticut Appellate Court agreed with that decision, quoting language from a 2006 case to explain its reasoning:

Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . . Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by the fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.

Town Dispatcher Not Responsible for Personal Injuries from High Speed Car Chase Accident

Edgerton v. Clinton, SC 19095  (March 18, 2014)

One summer night in 2005, Matthew Vincent, a volunteer firefighter, was driving on Route 81 (Killingsworth Road) in Clinton, Connecticut, across from the commuter parking lot entrance when a car driven by Mr. William Cardillo hit him while turning left onto Glenwood Road.  Vincent stopped.  Cardillo kept going.  Vincent chased him, turning on his vehicle’s blue courtesy lights and calling the Clinton 911 dispatcher on his cell phone.  They turned right onto Liberty Street, left onto Ferry Dell Road, left onto Brickyard Road, left onto Kelseytown Road, and right onto Ironworks Road, all dark, winding residential roads, Mr. Vincent all the while calmly telling the dispatcher their route.  Fifty seconds after turning onto Ironworks Road, Mr. Cardillo lost control and hit a tree.  His car flipped over and caught fire.  In the crash, his passenger, Walker Hopkins, suffered a severe brain injury.

            Mr. Hopkins’s conservator hired a personal injury law firm to sue for the accident.  The lawyers sued everyone who might be found responsible for the accident: the drivers of both cars, the Clinton fire department (because Mr. Vincent was  a volunteer fireman who had used his lights during the chase), the Clinton dispatcher for not telling Mr. Vincent to end the chase, and the town of Clinton because the dispatcher was its employee.

            The conservator’s lawyers hired an expert who testified that the 911 dispatcher, Ms. Ellen Vece, should have immediately told Mr. Vincent to stop chasing Mr. Cardillo.  The town’s lawyers hired a different expert who testified that Ms. Vece did nothing wrong in not telling Mr. Vincent to stop because because she had no way of knowing that he was speeding.

            At the personal injury trial in January 2011, a Waterbury jury found that Mr. Vincent and Mr. Cardillo were each 5% responsible for the accident and that Ms. Vece was 90% responsible.  The jury awarded the conservator $12.7 million to provide for Mr. Hopkins’s care.

            The Town of Clinton appealed the jury’s verdict.  Three years later, in a 4 to 1 decision, the Connecticut Supreme Court reversed the judgment against the town, thus taking away 90% of the award.

            To get the verdict against the Town under Connecticut personal injury law, the conservator’s lawyers had to convince the jury of the following things:

• The dispatcher’s failure to tell Mr. Vincent to stop the car chase created an immediate risk that someone would suffer a personal injury.
• As an occupant of the car being chased, Mr. Hopkins likely could be identified as a person that was at risk of being injured.
• The dispatcher knew or should have known that by not telling Mr. Vincent to stop the car chase that there was an immediate risk that someone would likely suffer a personal injury.
• The dispatcher’s failure to tell Mr. Vincent to stop the car chase a substantial reason that caused this serious car accident.

            The Connecticut Supreme Court reversed the jury verdict against the town because the justices felt that they dispatcher had no way of knowing that there was a risk that someone would be injured because Mr. Vincent was calm and rational on the phone while speaking to her, because there were no background noises such as screeching tires or rushing wind during the call that would make the dispatcher realize that the cars were speeding, and because the dispatcher did not know that Mr. Vincent was using his blue courtesy lights.

The expert witness called by the conservator’s lawyers testified that a properly trained dispatcher should have immediately told Mr. Vincent not to follow the other car because the average layperson does not have the expertise or training to pursue another car and the mere fact that a car chase was occurring was likely to create an immediate risk that someone would be injured in a car accident.  The jury agreed with the expert.  In reversing the jury verdict, however Connecticut Supreme Court focused on the fact that the dispatcher had no way of knowing that the cars were dangerously speeding. 

Injured Motorist Sues the Wrong Company in a Personal Injury Law Car Accident Case

ESPN  ≠ Disney in a
Personal Injury Case

Manka v. Walt Disney Co., AC 34777 (March 25, 2014)


The Disney entertainment empire started with a mouse.  The ESPN sports behemoth started with cable tv coverage of a small market, long gone hockey team (Go Whalers!).  If you are a NASCAR fan, you know that Nicole Briscoe is a popular sports reporter married to a race car driver.

            In 2008, ESPN signed a contract with Keko Media, Inc. to have Ms. Briscoe provide commentary for ESPN broadcasts.  While driving in a rental car to ESPN in Bristol on December 7, 2008, Ms. Briscoe collided with a car driven by Carrie Manka, who hired a Connecticut personal injury law firm to sue for her injuries.  Her lawyers sued the Disney Company, claiming that Ms. Briscoe was their employee.  No she was not, Disney’s lawyers told the court, and asked the court to dismiss the personal injury automobile accident case for lack of jurisdiction, which the court did.

            Ms. Manka’s lawyers appealed to the Connecticut Appellate Court, claiming that Connecticut’s long arm statute, CGS 33-929(f), gave the court jurisdiction because (1) Ms. Briscoe’s contract was to be performed in Connecticut at the ESPN headquarters in Bristol and (2) she had committed a tort in the state by causing a car accident with personal injuries.  Ms. Briscoe, the lawyers claimed, was Disney’s employee because the contract defined ESPN to include its "affiliated" companies.

            In throwing out the case, the trial court found that although Disney and ESPN "appear to be linked through a number of intermediary corporations," Ms. Manka's lawyers did not provide any credible evidence of a direct relationship between the companies.  The Appellate Court agreed that the trial court was justified in deciding that Ms. Briscoe did not work for Disney and in dismissing the personal injury case, noting that the contract provided that Keko would make Ms. Briscoe available to ESPN.

Amnesia Helps Save Speeding Police Office From Fault for Fatal Intersection Accident

Officer Does Not
Remember Fatal Crash

Winn v. Posades, 913 A.2d 407, 281 Conn. 50 (2007)



When Officer David Posades arrived for his midnight shift at the Plainville Police Department on September 4, 1997, he realized he had left the keys to his handcuffs at home.  That same Thursday, Glenn Winn was having an evening out and at some point that night drank some alcohol and smoked some marijuana.

            Route 177 crosses Plainville from north to south.  Route 372 crosses the town from east to west.  At the intersection where they meet, the speed limit for Route 372 is 25 mph and the speed limit for Route 177 is 35 mph.  The area is a mix of small businesses and residential homes.

            Officer Posades must have been in quite a hurry to get his keys.  He was driving his cruiser between 58 and 75 mph westbound on Route 372 as he approached the intersection.  If he was going 75 mph, his speed would have been triple the speed limit! His siren and emergency lights off were off as he sped toward the traffic light at the intersection.

            Mr. Winn, driving south on Route 177 was also above the speed limit, although by nowhere near as much as the officer.  Mr. Winn was going between 37 to 46 mph as he neared the intersection.

            At the light, the two cars collided.  The front of Officer Posades’s cruiser hit the side of Mr. Winn’s car, flipped it over and threw Mr. Winn from his car.  The accident put him in a coma.  He never regained consciousness and died 9 days after the accident.

            Mr. Winn’s mother hired a lawyer to sue Officer Posades and the Plainville Police Department for this fatal car accident.

No witnesses were found for the accident.  Officer Posades testified at trial that he did not remember the accident.  The last thing he remembered, he told the court, he was driving west on Route 372 toward the intersection with Route 177. 

The judge at the trial stated from the bench, “Personally, I find it reprehensible that a police officer on duty not responding to an emergency was traveling that fast.”  Then he threw the case out of court.

Mr. Winn’s mother appealed the case to the Connecticut Appellate Court and the Connecticut Supreme Court.  In agreeing that the trial judge was right to throw out the case, both these courts pointed to a 100-year-old Connecticut Supreme Court case, Wallace v. Waterhouse, 86 Conn. 546, 86 A. 10 (1913), in which a speeding car killed a dog.  While traveling at the “excessive” speed of 20 mph, Arthur G. Waterhouse ran over and killed Mr. John T. Wallace’s dog which had crossed into the street.

Maybe it was Mr. Waterhouse’s excessive speed that caused the accident, the Supreme Court justices said.  Or maybe, the justices said, the accident happened because of the “commonly known” “habits and characteristics of dogs” to go wandering into the street.  Without any other evidence presented by the dog’s owner, a jury could only guess what had happened; because cases are to be decided on facts, not guesses, Mr. John Wallace’s lawsuit to get compensated for the death of his dog was thrown out of court.

            The Connecticut Supreme Court applied the same reasoning to the wrongful death lawsuit brought by Mr. Winn’s mother against the Plainville police and Officer Posades.  The court stated:

In a case involving an automobile accident, a plaintiff cannot merely prove that a collision occurred and then call upon the defendant operator to come forward with evidence that the collision was not a proximate consequence of negligence on his part. Nor is it sufficient for a plaintiff to prove that a defendant operator might have been negligent in a manner which would, or might have been, a proximate cause of the collision. A plaintiff must remove the issues of negligence and proximate cause from the field of conjecture and speculation.

In short, although the “evidence showed that Posades had been negligent or reckless in operating his police cruiser through the intersection at a highly excessive rate of speed,” no one could say for certain whether his speed caused the accident, or whether the accident happened because the traffic light malfunctioned, or whether it was Mr. Winn who passed through the red light.

 Referring to the Wallace v. Waterhouse case, and to other car accident cases, the Connecticut Supreme Court justices said, “Our conclusion today is simply that we decline to vary from our previous case law that consistently has concluded that proof of excessive speed by the operator of a motor vehicle is insufficient, standing alone, to establish legal cause.”

School Not at Fault for Car Accident Blamed on Lack of Security Cameras

School Not at Fault
For Single Car Accident

Chen v. Hopkins School, Inc.,  AC 35164 (2014)

At 354 years old, the Hopkins School in New Haven, Connecticut, is the 3rd oldest private high school in the country.  It’s motto is Quod Felix Faustumque Sit, which in Latin means, “May It Bring You Happiness And Good Fortune.”  For one of its students, November 6, 2008, brought not happiness but a personal injury in a car accident caused by her tire blowing out, and no good fortune came from the attempt by her lawyers to blame the school for the accident.

            Connie Chen had driven about 1/2 mile from the school when her tire blew and she had her accident. It appeared that the sidewall of her tire had been cut by a knife or other sharp object while her car was parked at the school parking lot. The lawyers whom she hired to represent her for the accident sued the school, claiming that the accident happened because the school did not “use surveillance technology as a disincentive to criminal activity and as an aid to apprehending offenders.”

            To prove her personal injury case, Ms. Chen’s lawyers hired an expert on security who said that the school was responsible for the accident because it should have had a security camera in the parking lot. When her lawyers told the court that they had no other evidence to prove that the school should be liable for the accident, the school’s lawyers asked the court to throw out the case, which the court did.

            Ms. Chen’s lawyers appealed to the Connecticut Appellant Court, which ruled that the trial court was right in dismissing her personal injury case. The Appellate Court stated that even if the expert’s opinion was believed,

it doesn’t help the court know whether this purported vandal or criminal who purportedly inserted some object into the tire would have known that there was a security camera there because there was nothing testified to about signage, whether a lack of knowledge would have deterred this activity from taking place, whether the camera would be monitored twenty-four hours a day, whether if someone saw this person doing what he or she did, it would have stopped what ultimately transpired. None of this is being offered by this expert, neither is there any statistical or empirical evidence presented by this gentleman to indicate that the ultimate incident would not have occurred because there were security cameras in the parking lot.

 

            Although the school was not found responsible for this personal injury case, perhaps it has now installed security cameras in the parking lots to help protect the students and staff.  Hopefully, Ms. Chen has recovered from the injuries she suffered in this accident.  And hopefully, from the education she obtained at this venerable Connecticut private school, happiness and good fortune come her way.

Connecticut's Workers' Compensation Law: 100 Years of Irony

Hartford's Bond Hotel
Responsible for Fatal
Workers' Comp Accident

Powers v. Hotel Bond Co., 93 A. 245, 89 Conn. 245 (1915)

The Connecticut Workers' Compensation Act was passed in 1913.  Before the act was passed, the only way for someone injured at work to recover compensation was to file a personal injury law suit against the employer.

Filing a personal injury lawsuit in court to be compensated for a job accident was very problematic.  Legally, it was necessary to prove that the employer, through some act of carelessness or negligence, was at fault for the accident.  In a personal injury case, that the employer could raise as a defense that the accident happened because the injured worker was careless or not paying attention.  Another common defense claimed by employers was that the injured employee assumed the risk of getting injured by taking the job.

            In 1913,  the industrial revolution was steaming along (pun quite intended, as steam engines, with their inherent dangers of exploding or causing burns, where quite common).  Factories were dimly lit labyrinths of crowded machinery with uncovered gears, flywheels, belts and mechanized cutting tools whirring along inches from workers hands and feet.

To alleviate the suffering visited upon injured workers, many states, including Connecticut, began to pass workers’ compensation laws that removed questions of fault, contributory negligence and assumption of risk from the determination of when and how a worker who was hurt on the job could be compensated.  These laws were based on the idea that the contract between an employer and worker automatically included a provision that the employer would compensate an injured worker for an accident at work provided that the injury did not arise through the employer’s intentional or willful misconduct.

In 1913, to support himself and help support his mother, John J. Powers worked at Hartford’s five-star Hotel Bond, a brand new, state-of-the-art facility that featured a magnificent ballroom on its top floor.  Mr. Powers, tragically, suffered a fatal accident at work.

This tragic accident would give the Connecticut Supreme Court its first opportunity to review the Workers’ Compensation Act.  In its decision, the court set forth the fundamental principles that 100 years later still underpin Connecticut’s law for compensating employees who are hurt at work.  The court also explained the goals behind the Act.  Unfortunately, given how the workers’ compensation system actually works today, these goals are awash with irony.

First, The Case

After Mr. Powers’s death at his job, his mother filed a workers’ compensation case to be compensated for the loss of the financial support which he had been providing her.  She won the case and the workers’ compensation commissioner awarded her $5 per week for 6 years.

The Hotel Bond Company appealed the workers’ compensation case to the Connecticut Superior Court, which upheld the award.  Hotel Bond then appealed to the Connecticut Supreme Court, arguing that the Superior Court should have tried the case all over again, that Mr. Powers’s mother should not get workers’ compensation because she was not his dependent, and that it was wrong for the commissioner to have awarded her the $5 per week.

The Supreme Court upheld the workers’ compensation commissioner’s decision.  In doing so, the justices found that the 6 years of $5 weekly payments was reasonable, noting that the Workers’ Compensation Act stated that the compensation to be paid to the dependents of a worker killed on the job was a minimum of $5 and a maximum of $10 per week.

The justices also ruled that it would make no sense for there to be a whole new trial of the facts during an appeal to the Superior Court; instead, the point of the appeal was to see if the workers’ compensation commissioner had followed the Act and if there were sufficient facts in the case for the commissioner reasonably to have ruled as he did.  The Supreme Court also found that Mr. Powers’s mother could be considered a dependent under the Workers’ Compensation Act.

Now The Irony

The words of the justices:

 The act by eliminating the proof of negligence, by minimizing the delay in the award, and by making it reasonably certain, seeks to avoid the great waste of the tort action, and to promote better feeling between workman and employer, and accepts, as an inevitable condition of industry, the happening of accident, and charges its cost to the industry.

The reality:

Workers’ Compensation cases in Connecticut can and often do go on for years.  It usually takes several weeks to schedule a hearing.  Most hearings are “informal,” meaning that they are simply a negotiating session supervised by the workers’ compensation commissioner.  The parties often follow the recommendations of the commissioner at these informal hearings, but they are not required to do so.

To decide a workers’ compensation case, a commissioner has to take evidence at a “formal” hearing.  These are scheduled infrequently and far into the future.  The reason:  Connecticut has about 1.8 million persons in the labor force and there are only 16 commissioners to handle all the cases of persons who are hurt on the job.

The workers’ compensation system hardly fosters good feelings between a worker and employer.  Insurance rates go up when persons are hurt on the job so employers often try to keep injured workers from making claims.  Even if a employer is sympathetic to an employee hurt on the job, it is not the employer who usually controls the compensation process but the insurance company.  (Some larger employers are self-insured for workers’ compensation claims, but they are usually very difficult to deal with because every dollar paid on a claim is a dollar off the bottom line.)

            Economists would argue that industry bears cost of work accidents.  Companies simply pass on their premium costs onto the consumer.  Companies also join together to lobby the state legislature to reduce the benefits paid to injured workers.  During the last significant reform of the Connecticut Workers’ Compensation Act, which took place in the 1990’s, the amount paid to workers for permanent disability was reduced by approximately one-third.  That reform also limited the commissioners’ power to award benefits after injured workers are paid for permanent disability.

The words of the justices:

[The Workers’ Compensation Act’s] procedure contemplates a speedy investigation and hearing by a commissioner without the formalities of a court and without, as a general rule, the employment of an attorney. It attempts to improve the condition of the workman under modern methods of industry by giving him partial recompense for an injury, with a result more certain and speedy and less expensive than under the former method in tort litigation.

The reality:

            Investigations of a workers’ compensation case are hardly speedy, especially, as if often the case, a workers has previously been hurt in a car accident or other personal injury case or has a prior or subsequent job accident.  Investigation often involves sending workers to a series of doctors for opinions as to what accident caused the employee’s injury or disability.  Oftentimes, these doctor’s visits have nothing to do with making the injured worker better but only serve to push around the finger of blame for the injury.

            While it is not necessary to have an attorney for a workers compensation case, it also is not necessary to go to the dentist to deal with a toothache.  Which might be more painful  —  to pull your own tooth or to handle your own workers’ compensation case  —  is an open question.  The Act is several hundred pages long.  The workers’ compensation law has deadlines that if missed can mean the end of a case for the injured worker.  The Act itself is complex and this is compounded by the fact that decisions from the appellate courts and the Connecticut Workers’ Compensation Review Board often significantly alter the law.

            Although far from perfect, the Connecticut Workers’ Compensation Act often does provide injured workers with the ability to recover financially, at least in part, from their injuries.  The best course of action:  stay alert and work safely to lessen your chance of getting hurt at work.