One of the elements of damages in a Georgia car wreck personal injury case is “special damages.” Special damages is the specific amount of costs incurred or to be incurred as a result of the at fault party’s negligence. The damages are more specifically the past and future lost wages of the Plaintiff, as well as the past and future medical costs.

Because the existence of the plaintiff’s health insurance, or lack thereof, is not generally admissible for trial in Georgia, the jury should never head whether the bills the plaintiff incurred for reasonable and necessary medical treatment related to the wreck were paid by insurance.

In a perfect world, the jury would understand the judge’s instructions and its verdict would disregard whether the plaintiff had health insurance. Instead, some juries unfortunately “assume” the Plaintiff had health insurance, even though no evidence to that fact is presented by either side.┬áThis is particularly important because some health insurance plans require the member to reimburse the plan for costs paid by the plain in pursuant of treatment stemming from the wreck.

If your plan is self-funded ERISA, the plan has a federal right to reimbursement. The plan might not even offer a discount on reimbursement for the attorney fees paid by the plaintiff out of her gross recovery. This means the plaintiff could even basically pay attorney fees on behalf of the plan in the recovery of money from the negligent party.

However, if the plan is not an ERISA plan, it is subject to Georgia law. The current Georgia law follows the “complete compensation” rule. This means that the plan is only entitled to reimbursement if the plaintiff is “made whole” through a complete “economic and non-economic recovery.” In other words, the plaintiff only needs to reimburse her plan is she is fully compensated for all of her bills and lost wages AND her pain and suffering.

While it’s a fact analysis whether the plaintiff was completely compensated, the normal opinion by plaintiff attorneys is that she was not.

Therefore, the ultimate “net” recovery to the plaintiff can hinge greatly on the type of health insurance plan she carries.

Peter Bricks is a Woodstock personal injury and bankruptcy attorney in the metro Atlanta area, who files cases in the Magistrate Court of Cherokee County.