44. Chong v. State Farm Mut. Auto Insur., 428 F.Supp.2d 1136 (S.D. CA 2006)

In a class action case against auto insurers for pursuing medical payment reimbursement despite an absence of any waiver of the make whole doctrine in the policies, the court held, pursuant to diversity jurisdiction, that the CA Supreme Court would hold when first confronted with the issue that the make whole rule calculation requires taking into account the insured’s attorneys fees and collection costs. Thus, under this holding, in the absence of a waiver of the make whole rule in the reimbursement provision, whenever the attorneys fees and collection costs in the insured’s personal injury case exceed the reimbursement sought, make whole defeats reimbursement. NOTE WELL—case is constructively overruled by S Ct in #63).


45. County of San Bernardino v. Calderon (2007) 148 Cal.App.4th 1103

Under the Hospital Lien Act (HLA) at Civil Code §3045.1, et seq., a hospital lien is subject to any prior liens. The language in the statute that the lien “shall not be effective” until proper service is made equates to the hospital lien not being created until the lien is properly served. In contrast, an attorney fee lien is created when the retainer agreement is signed. Thus, where a patient is treated by the hospital before the patient retains counsel, but the hospital lien is served after the attorney is retained, the attorneys’ fee lien is a “prior lien” to the hospital lien.


46. Katuizhinsky v. Perry (2007) 152 Cal.App.4th 1288

Court here found that an injured plaintiff’s agreement with a financial services company was legitimate and entitled plaintiff to collect full medical bills despite the fact that the company had paid a discounted rate to the medical providers. The key point was that the plaintiff remained liable to the financial services company for the full amount of the medical bills. However, case starts with following quote: "An injured plaintiff in a tort action cannot recover more than the amount of medical expenses he or she paid or incurred, even if the reasonable value of those services might be a greater sum." The case appears to suggest that the Hanif/Nishihama limitation on recovery of medical expenses applies even in a case against a private (vs. public) entity and contains a great deal of other harmful language. On the positive side, it does suggest that full medical bills come into evidence subject to later post-trial motion to reduce medical bills to amounts paid under Hanif/Nishihama.


47. Allstate Insurance Co. v. Superior Ct (2007) 151 Cal.App.4th 1512 (Note--S Ct affirmed in companion case—see No. 63 below)

In J. Haller opinion, J. Nares dissenting, 4th DCA refuses to follow Chong decision and the majority rule in other states requiring a consideration of insured’s attorneys fees in determination of whether he is made whole. Relies on American rule that all litigants are to bear their own attorneys fees.


48. Totten v. Hill (2007) 154 Cal.App.4th 40

State courts have no jurisdiction over ERISA plan’s actions for reimbursement. Such actions by statute are subject to exclusive federal jurisdiction. Notably, refused to follow McDowell case (supra #31) by the 9th Circuit that purported to allow state court contract actions to be pursued as an alternative to federal actions for reimbursement under ERISA.


49. Hewlett-Packard v. Barnes 571 F.2d 502 (9th Cir. 1978)

ERISA preempts the CA Knox Keene Act as applied to direct regulation of employee benefit plans.


Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Ca se, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.