Walmart Successfully Sues Brain-Damaged Worker For $469,216

A Walmart worker who was hit by a truck and left brain-dead-damaged has lost her final round of appeals and must repay the retailer $469,216. This is because she both had Walmart pay for her medical expenses and she successfully sued the trucking company for medical expenses. While, on the face of it, reptilian, standard employer-sponsored-insurance contracts have clauses prohibiting double-dipping, and, as we all learned from Seinfeld, double-dipping is gross for society. [St. Louis Post Dispatch] (Thanks to Michael!)

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  1. Its not that she won a suit, I dont think that Walmart/insurance could recoup that, but she sued for and received “medical expenses”.

  2. 9900dude says:

    Its called subrogation, and its common with insurance carriers. See here: [en.wikipedia.org]

  3. qwickone says:

    I think that’s fair. If she received money from the trucking co for medical expenses, she shouldnt be receiving money from anyone else for the same medical expenses.

  4. Beerad says:

    “While, on the face of it, reptilian, standard employer-sponsored-insurance contracts have clauses prohibiting double-dipping”

    Of course, uh “mammalian”, specialty, independently created insurance contracts have clauses prohibiting double-dipping, too. I can’t imagine there’s an insurer out there that would be cool with you collecting your insurance payout and also having your medical expenses covered in a lawsuit judgment.

    Furthering Steve’s comment above, it’s not even that she received medical expenses but that she didn’t want to repay the money her insurance paid out.

  5. 9900dude says:

    Its a common thing – called subrogation. All insurance companies do it. See here: [en.wikipedia.org]

  6. UX4themasses says:

    I have 2 issues with this.

    1. SHE IS NOT BRAIN DEAD, RTFA
    2. SHE sued and won to cover her medical expenses while BILLING WALMART for those same expenses…

    This is an emotional story in which we all want to give someone like this comfort and peace. However, this injury does not entitle her to collect twice.

  7. Just because something is “common” doesn’t make it ethical or moral.

  8. copious28 says:

    I think it might be fair, but maybe Wal-Mart should pay her legal expenses, since they totally took advantage of her winning the other case. Maybe she could file bankruptcy?

  9. lookoutscout says:

    Meanwhile, this family is about to be bankrupted by Wal-Mart’s legal policies. The company does $400 billion of revenue a year – does it really have to be so vindictive? Improved employee health care options? What?

  10. sean77 says:

    It doesn’t make much sense. Walmart paid 100% of her medical bills, so why did she sue the trucking company?

    In the end, she’s $50k out of pocket because the lawsuit didn’t give her as much as walmart had spent. dumb.

  11. picshereplz says:

    Eh, I’m with the commenters above me. No sympathy from me.

  12. ThomFabian says:

    @Hank Scorpio-Steinbrenner:
    How is this immoral or unethical? Another party was found liable for those expenses. WalMart wants the other company to pay for those expenses.

    If I get hit by a car and my insurance company pays for my medical bills, and then I sue the driver of the car and he is ordered to pay for the bills, should I somehow get that money?

  13. Illusio26 says:

    Ditto. She sued for medical expenses. Walmart shouldn’t have to pay as well.

  14. digitalhen says:

    @UX4themasses: Not only RTFA, R your own FA!

  15. cybercjh says:

    Yeah, why did she sue the trucking company for medical expenses if Wal-Mart already paid them? I’m thinking that the jury who awarded her that $$ meant it for ‘future medical expenses’ because, let’s face it, someone in her condition will require more $$ for future medical needs. So basically, if you get hurt and sue a company, the moral of the story here is to sue for anything/everything OTHER than medical expenses if your insurance company already paid them or to at least make it very specific that you’re suing for FUTURE medical expenses. Where the hell was HER lawyer’s brain in all of this? Anyway, I still hate Hell-Mart even despite this.

  16. Hanke says:

    She needs to sue her attorney for malpractice. He should have known better than to agree to the settlement she got; and someone should have read the contract with the health plan. Admittedly, I never read mine.

  17. cybercjh says:

    Does RTFA mean read the eff’ing article? Or, something else? I’m trying to figure that out…

  18. catskyfire says:

    @lookoutscout:
    The thing is, if WalMart was nice and let it go, then someone else would jump on it saying ‘you allowed it for this case, you must allow it for all’.

    Sometimes, it’s more than just the basic money, but the repercussions it could have on future claims.

  19. @Hank Scorpio-Steinbrenner: You know I like you Hank, but you are wrong, she was the unethical one. She sued the trucking company for a bill that she didnt have. She actually could have been accused of committing fraud on the court. If Walmart hadnt recouped that money she may have seen the lawsuit overturned on appeal. Besides, we both know that any loss wouldnt have come out of Walmarts bottom line, but rather as an increase in the cost of the Walmart insurance plans.

  20. woogychuck says:

    My mother was in a severe car accident a few years ago and almost ended up in a similar situation. Her medical expenses were paid up front by an insurance company and she then won a settlement.

    Fortunately, her lawyer had half a brain and sued for present and future lost wages and secondary medical expenses. When the insurance company came sniffing for cash, they had no basis since the damages weren’t for the medical expenses that had already been paid.

    In all honesty, I think that the family deserves the money and probably a bit more. She has a severely diminished quality of life and no source of income as a result of this. Unfortunately, they probably hired some sham TV commercial lawyer and got screwed as a result.

  21. The Porkchop Express says:

    @Hank Scorpio-Steinbrenner: so it’s ethical to get paid for the same thing twice? or get repaid for medical bills that you didn’t pay?
    Awesome, I gotta go get me some money!!

  22. sean77 says:

    Actually, thinking more about it, sounds like she was conned by an ambulance chaser.

    She was awarded $700,000. The attorney took 40%. That’s an obscene amount. I can open the phone book and randomly point to a dozen injury lawyers that will take 15%.

  23. Youthier says:

    @cybercjh: I don’t know but whoever said it is right… lady is brain-damaged not brain dead. Still not good but there is quite a difference.

  24. ohiomensch says:

    @Hanke:

    I was involved in a suit similar to this and my attorney got the decision overturned due to his own mistake. He didn’t have a problem with filing the appeal and the decision was overturned. I ended up getting a fair settlement in the end, tho it did take a while to sort it all out.

  25. IrisMR says:

    It’s fair. I know it looks assholeish because the woman is brain damaged but that’s not how it works.

  26. Ecks says:

    She shouldn’t be able to collect benefits twice – nobody should. This is only fair, I had a similar situation recently where I had to repay one government agency from funds I received from another – it’d be nice to have more money, but I wasn’t entitled to it, and neither is she.

  27. doright says:

    Yes, Wal-Mart has every legal right to subrogate. But, Wal-Mart sued for $470,000 (for medical expenses, plus interest and legal fees), which even exceeds the amount of the settlement Debbie Shank received after legal expenses (around $417,000). The settlement money was placed in a trust for Debbie’s FUTURE medical care because this poor woman will require 24-hour medical care in a nursing home for the remainder of her life. Now, the family will be forced to fully rely on public assistance to pay for Debbie’s medical care. This case is a tragedy for Debbie Shank and her family, not a case of double-dipping.

  28. UX4themasses says:

    @digitalhen: Ok…I did read the EFFN article in which she SUED for medical expenses from the trucking company while collecting insurance from WALMART’s insurance…

  29. bohemian says:

    Someone needs to smack her attorney upside the head. Looking at potential subrogation should always be part of negotiating a settlement.

    I hate to harp on the national health insurance thing but if the care portion was already handled and then the national health plan went after the liable party she wouldn’t be in the situation she is. The dispute would have only been for damages & lost wages.

  30. @Hanke: The attorney (but failed) tried to game the system by putting the settlement proceeds in a trust:

    The Shanks’ lawyer, Maurice Graham, wrote the Wal-Mart health plan informing them [of the settlement and trust]. Mrs. Shank had received no funds directly, he said, and therefore had nothing to pay Wal-Mart back. [online.wsj.com]

    I give him a bronze star for effort.

  31. erratapage says:

    It’s sad that this lady’s settlement was completely eaten up by her past medical bills. It sounds as if her case was worth far more than the amount she received. Hopefully, Walmart won’t ask for the extra $50,000.

  32. oakie says:

    @woogychuck: “In all honesty, I think that the family deserves the money and probably a bit more. She has a severely diminished quality of life and no source of income as a result of this. Unfortunately, they probably hired some sham TV commercial lawyer and got screwed as a result.”

    so walmart should have to pay for that? yeah, right.

    i’m not a fan of walmart, but i am also not a fan of people trying to double-dip… and less of third-parties who try to justify their actions. in the end, it seems like everyone got their fair shake… trucking company was held responsible.

  33. modenastradale says:

    @Steve Trachsel, Ace. No, really, ACE:
    “[S]he actually could have been accused of committing fraud upon the court.”

    Actually, that’s not true. In the absence of some kind of contractual agreement otherwise (and yes, there usually is such an agreement), an injured person is legally entitled to sue a tortfeasor even if he or she has already been paid by an insurance carrier.

    But, as I said, all insurance contracts provide for subrogation. Basically, upon payment of the claim, the insurance company inherits the right to sue the tortfeasor and keep the proceeds, to recoup costs paid to the insured.

    Two points: (a) I don’t understand what the woman’s lawyer was thinking. It’s too simple. (b) As a matter of policy, I *don’t* think it’s obvious that the insurance company should have a right of subrogation. After all, an insurance company makes its profits by charging premiums that, collectively, exceed the risk-adjusted aggregate injuries for policyholders. When an insurance company profits from all those premiums, and then recovers all of the money it paid to the insured — the company is “double dipping” too!

  34. katylostherart says:

    attorney screw up? he should’ve listed the settlement amount as something other than medical costs. maybe long-term secondary health costs or something. is walmart covering her lifelong care then in response to taking the money she needed? if this is for medical expenses that walmart has not or will not be covering related to this accident then this is a supreme failure of the court system.

  35. lincolnparadox says:

    It’s not like Wal Mart is at fault here. The trucking company is responsible for her injuries and her health insurance through WallieMart paid for said medical expenses.

    However, I would suggest that Wal Mart’s health care plan is only entitled to 60% of the damages ($417K divided by the original $700K settlement). There’s no reason that they should take whatever is left over after the initial attorney fees from the case against the trucking company. I might also suggest that suing this family for settlement plus attorney fees was pretty shitty.

    I would also encourage the Shanks family to hit every media outlet that will listen to them and tell their story. In the end, they would have been better off not having the health insurance and just suing Wal Mart and the trucking company for damages.

  36. johnva says:

    They should simply make it so that insurance companies can only subrogate money paid for actual medical damages that the insurer paid for. They shouldn’t be allowed to subrogate anything like punitive damages, money for pain and suffering, future lost wages, etc.

  37. FessLove says:

    Just because shes brain damaged doesnt mean she can go around suing everyone for the same medical expenses. Thats what you get for trying to get double payed.

  38. Chu-Chu says:

    I guess my thought is that, if she is brain-damaged… then doesn’t that mean that someone else is in charge of her expenses and accounts? Wouldn’t this mean that she personally did not double dip, but her husband or parents or children did? It seems to me that this incident is being used by the family for financial gain, which is being greedy, and they got caught.

  39. MonkeyMonk says:

    The Walmart vs. Shanks case is incredibly sad but I understand the legal reasons why Walmart must try to recoup the money. Still, the PR ramifications are going to be pretty severe for WalMart since most people think they’re behavior towards employees is reprehensible already.

    The only win-win here would be for Walmart take back their money but then make a large (2x the settlement or more) donation to the Debbie Shanks funds.

  40. Oh wait, I forgot: The plan was administered by a company now owned by UnitedHealth Group, who filed the lawsuit. Their actions are therefore unconscionable.

    I mean seriously, courts side with contracts now, like they’re some sort of legal document? They should at least consider that one party is evil (or so I’m told), and therefore deserves to be screwed.

  41. @johnva: They dont, as far as I know. The reason Walmart went after her is simple. By her winning a suit for the medical expenses they paid the insurance company now cant sue the trucking company.

    Also, she had no cause against Walmart, they werent responsible in any way for her injuries.

    I am surprised that they didnt sue for additional damages and continuing care cost.

  42. johnva says:

    Actually, better yet, why not just outlaw subrogation but prohibit people from suing for any medical bills that were already paid for by their insurer? Then the insurer could sue separately to recover their costs, and the insured could sue for punitive damages, pain and suffering, lost wages, etc and any out-of-pocket medical expenses incurred. As it is, it looks like if I have 90/10 health insurance (for example) that the insurer gets their money from a settlement before me, which makes no sense to me since I would be the one injured.

    Alternatively, if they’re going to allow subrogation they could at least make the dollars from the settlement be split 50/50 between the insurer and insured up until the point where one of them has their losses totally satisfied. Then the rest would go to whomever lost more. I don’t think it’s fair for one party to get ALL the money when BOTH incurred losses.

  43. johnva says:

    @Steve Trachsel, Ace. No, really, ACE: That makes sense. So the real problem was that her attorney was an idiot and didn’t sue for actual things she could keep the money for. Did she also sign away her right to sue them again for pain and suffering, etc?

  44. @MonkeyMonk: “Wal-Mart sues worker just for the sport of it: company just wanted to prove a point” ?

    They didn’t sue to prove a point. They sued for the monies to which they were reasonably entitled. Who puts all that effort into a long, drawn-out lawsuit and then gives it all back with interest?

  45. MeOhMy says:

    @modenastradale:

    a tortfeasor

    I am going to start using “tortfeasor” as a common insult. What a great word!

  46. @ThomFabian: Because if you read the other story this is an update on you’ll see that Wal-Mart is taking all the family’s settlement money. This woman will have on going care issues for life, plus the family has lost a wage earner; this family needs that money. Wal-Mart’s financial success doesn’t hinge upon that money like this family’s does.

    No it may not be fair to expect Wal-Mart to just pick up the tab, but it’s also not fair to leave this family destitute. Lesser harm is done to Wal-Mart then the family, and it would allow both to move forward with some hope of a future. To me it seems clear that the right thing to do would have been for Wal-Mart to write off her medical care as an expense and allow this family to keep the money.

    I’m not arguing that Wal-Mart should never be allowed to reclaim money, but in this specific case the right thing to do would’ve been to help this family out.

  47. jordy777 says:

    Why do we keep hearing about this non-story. It sounds awful because it has the words “Walmart” and “brain-damaged” in it, but this is no different than a Worker’s Comp lien (which are standard procedure).

  48. topgun says:

    I AM NOT CONSUMER BASHING.
    A) It’s a sad situation for the Shanks.
    B) WalMart is not the bad guy. The rules are very evenly applied to all. I don’t care if it’s the WalMart Health care plan or Blue Cross. They all have the same regulation.
    C) WHAT ABOUT THE ATTORNEY’S? They took over HALF the settlement and are the ones who fucked up! Why don’t they give their share back? !!!!!!
    Look up in Wikipedia: PRO BONO

  49. P41 says:

    I agree with the others that in theory this looks like the right decision. However, having actually read the original article, one of the family’s claims is that the original Walmart payment didn’t cover all their expenses. I guess it would be only fair if Walmart gets all the truck settlement money that they have to use it to continue to pay medical expenses until she hits their limit again.

    Also hard to say it’s the lady’s fault (she is BRAIN-damaged, after all) but clearly the lawsuit was a mistake from the very first. It seems like the first 5 seconds of the consultation should have been:
    Person1: Ok, we’re going to sue for medical expenses.
    Person2: Wait, isn’t that what the half million dollars we already have was for?

    Walmart even sent them several notices that they shouldn’t accept settlements without checking with them. I’m with Hanke and Woogychuck, the lawyer really took a lot of money for nothing, all because he didn’t specify “secondary” medical expenses, “lost wages”, or whatever necessary to avoid this. Headline should read Lawyer’s screwup gives Walmart $469k of brain-damaged woman’s money.

  50. @Lo-Pan: Sorry, but I don’t deal in straw men.

  51. maynard62 says:

    Everyone’s a little off on this one. This was an ERISA plan, which, as to subrogation, is treated much differently than the health insurance you get from a carrier such as Humana. ERISA plans are entitled to 100% recovery regardless of what the money is earmarked for. ERISA plans are afforded special protection under federal law. Her attorney wasn’t stupid, there was nothing he could do that would have saved this money. If this was Humana trying to subrogate on an insurance policy, they would get nothing as the settlement appears to have been earmarked for future medical care.
    As to her double dipping, that is not necessarily the case. I’m sure, given the extent of her injuries, that her damages for pain and suffering and future medical alone could be worth $700K. Plus, it appears to me that the settlement was specifically earmarked for future care, which means she didn’t double dip.

  52. warf0x0r says:

    @lookoutscout: It’s the insurance company and NOT Walmart. The only thing Walmart got out of this was a raise to it’s insurance rates which it passed along to the employees, most likely.

    @topgun: I’m with you this ladies attorney should have co-ordinated the matter with their health insurers.

  53. SkokieGuy says:

    Why did this woman sue the trucking company for medical expenses? Pain and suffering is logical, future medical care is logical, but it is up to her insurance agency to sue the trucking company, to recover the medical expenses they paid.

  54. woohhaa says:

    Sue me for less than 100k and I’d be worried. Try to sue me for the astronomical amount they talked about in the article and I’ll laugh. You can’t get blood from a turnip.

  55. BrockBrockman says:

    This is a lawyer screw up, through and through. Shanks trusted her lawyer’s advice, although it turned out he was $470K wrong. Her lawyer knew better, and played it wrong. There were so many ways to have avoided this.

    The settlement language could have expressly stated that she wasn’t being recouped for med expenses; just for lost wages and general stuff like punitive, pain and suffering, emotional distress. The problem with that? You get taxed on all of that stuff; if you claim it was for “medical expenses,” the money is tax free.

    The lawyer could have found a way to handle all of her medical cost bills outside of insurance, if he wanted to keep all the money. Or the lawyer could have contacted the insurance company, gotten them involved, and agreed to an amount of settlement that would go to them; they probably would have settled for 50 cents on the dollar, maybe even less.

    But in the attorney’s defense, we are actually rarely subrogated for these types of things. Most of these types of settlements go under the radar, so to speak; and they’re too low for insurers to even go after. And, as happens more likely than you’d think, the person injured wasn’t insured or sufficiently insured.

    I feel for Shanks; but maybe she should consider legal malpractice?

  56. The Porkchop Express says:

    @sean77: There is that too. That is an insane amount I think 25% would be bad and that’s probably what most of the ambulance chasers get.
    And I’m with the other comment(s) that she should sue her attorney for not protecting that settlement with some fancy wording or actually reading the policy.

  57. CuriousO says:

    I guess she is not that brain damaged since it sounds like she wanted to make some more money of her accident. She is the excuse the Insurance companies use to have high premiums.

  58. squikysquiken says:

    @modenastradale: The insurance company isn’t “double dipping”. When an injury (tort) is caused by a third-party, it creates a right for compensation. You have 2 ways of going about it: 1/ have your own insurance pay and give them your right of suing that third-party (subrogation) or 2/ don’t involve insurance and sue yourself to recover your costs.

    The recovery clauses in insurance contracts is an explicit mention of the right of subrogation which actually exists implicitly in an insurance relationship. Insurance coverage is meant to “make you whole” after a covered loss, and it does so by basically acting in your name (paying your bills, but also filing lawsuits).

    The premiums you pay are calculated to cover various risks, some of those are just “accidents” (such as a disease where no recovery is possible), others are injuries caused by a 3rd party (the risk for the insurance is that they would not be able to collect back what they pay). Actuaries price both risks into your premium and having some recovery lowers in the end the premium.

    Think of secondary health insurance. The premium is (much) lower because they know someone else will usually pick up most of the tab.

  59. The Porkchop Express says:

    @johnva: That part about the insurer suing for medical amounts, that is subrogation.

    They most likley had a lien on her medical bills and once the case was settled and walmart’s health carrier found out about the settlement they sued to collect on the lien.

  60. Jaysyn was banned for: http://consumerist.com/5032912/the-subprime-meltdown-will-be-nothing-compared-to-the-prime-meltdown#c7042646 says:

    @cybercjh:
    Yes, and you can probably thank Slashdot for that meme.

  61. D.B. Cooper-Nichol says:

    @sean77 I can open the phone book and randomly point to a dozen injury lawyers that will take 15%:

    You’d be pointing at terrible lawyers. Anyone who’d take a case for 15% is totally desperate, unless it’s the easiest case in history and the defendant has already rolled over on its back. Forty percent is at the upper range, but it’s perfectly reasonable for a good PI lawyer. Those guys front the expenses and take the risk of working for free, remember.

    Presumably, the lawyer (and thus, the client’s family) was on notice of the subro claim all along. If so, they thought they’d gamble on the trust thing working as an effective shelter. If not, he screwed up and might owe his client $500k.

    Johnva suggested separate suits by the insurer and the injured person – that’s not allowed, for good reason: Besides doubling the workload of an already-exhausted judicial system, you’d force every defendant to defend themselves twice for the same thing, force every witness to testify twice, etc, etc. You’d also end up with inconsistent testimony, if not verdicts in every case.

  62. ClayS says:

    According to CNN, her husband divorced her last year, so she could also collect from Medicaid. So her lawyer may be more clever than we think. He has found a way for to collect money from the goverment as well. This is after winning $1,000,000 in the lawsuit from the trucking company.

    Just understand that there are people who suffer permanent injury, paralysis, etc from accidents by non-professional drivers who get next to nothing beyond their medical expenses.

  63. BStu says:

    A legal malpractice suit seems pretty just in this situation. Her lawyer seems to have missed pretty obvious things in a case like this and unnecessarily crafted a settlement that screwed over his client. I hope some lawyer offers to take THAT case pro bono and make this guy pay.

  64. Concerned_Citizen says:

    @qwickone:
    The problem is that these people had insurance through Walmart that they paid for. If Walmart gets this money, that means Walmart is getting completely reimbursed for the money they paid out as an insurance claim. What were the monthly premiums for? And to top it off walmart isn’t currently their insurer. Which means walmart gets this settlement and isn’t responsible for these people’s medical bills anymore. If these people still had walmart as an insurer and were still making claims against their insurance I think walmart should get to dictate that they would not need to pay out any future claims until that money is spent, but taking the settlement for past claims is absurd. The premiums pay for medical care, period.

  65. dmartinez says:

    I don’t belive you can call this double dipping. If you actual read the entire article the money they got from the company was for lost future wages and medical expenses. They wun 1 million but half went to the lawyers. Walmart is trying to collect all of the money even the money that is for future wages which is what the family was arguing in court with the judge. Walmart should have only gotten about 100k to 200k of that money and nothing more.

    There is no double dip as the writter of this article has claimed!

  66. modenastradale says:

    @squikysquiken:
    In theory what you say is true. In practice, though, it’s misleading. I’ve actually discussed this issue with actuaries who provide these calcuations for insurers; the insurers aren’t really passing the “savings” from subrogations on to policholders.

  67. johnva says:

    @D.B. Cooper-Nichol: I don’t think that’s a very good reason not to allow separate suits, though I will concede that maybe the two issues should be handled concurrently (again, why are ALL of these damages going to “medical bills” and not pain and suffering, lost wages, etc?). The two issues are entirely different. If the party being sued is not insured for enough to pay for both all the medical bills and the other damages, then why does the insurance company get “first dibs”? It seems to me that they should both get a portion, especially since she will have future bills caused by the accident that will not be covered by that insurer.

  68. windycity says:

    I find it strange that the plaintiff’s attorney didn’t negotiate with Walmart (or Walmart’s health insurance company) before accepting the settlement. It’s not uncommon for insurance companies to go after money from these types of settlements, although you see it more with government entities (Medicare/Medicaid) than with private insurers. One of the earlier posters pointed out that the really good PI attorneys can often command percentages of up to 40%. Pretty startling that one of these guys didn’t handle the issue of his client’s insurance company up front.

  69. Mr. Gunn says:

    sean77: yeah, sounds like the woman isn’t the only person brain-damaged here. Shame on her attorney for ripping the poor woman off!

  70. johnva says:

    Again, I must ask: why do the insurance company’s rights come first when there is inadequate liability coverage on the part of the trucking company responsible? It seems to me like the injured person’s losses should be primary and the insurance company’s secondary when divvying up the money from a settlement that is not adequate to cover both their losses.

  71. What ever happened to sueing for “pain and suffering” or “Gross negligence” if it could of been proved? Sure, I feel for the lady, but it wasn’t a legal tactic. She SHOULD of had proper legal advice, and if someone with a license to practice law told her this was OK, he should be disbarred.

  72. dlynch says:

    this is a non-story.

  73. TheUncleBob says:

    “she successfully sued the trucking company for medical expenses.”

    It was my understanding that she didn’t successfully sue – her legal and the trucking company reached a settlement outside the courts (I could be wrong). This means that the lawyer settled for less than Mrs. Shank’s existing medical bills (which the lawyer knew the insurance was expecting back before settling) and his legal fees. Then, took his 40% out.

  74. TheUncleBob says:

    By the way, for those interested, according to the original WSJ article about this case:

    GEM Transportation, LLC is the trucking company responsible for the accident that caused Mrs. Shank’s injuries.

    Maurice Graham ([www.grgpc.com]) was the lawyer for this case.

  75. MaliBoo Radley says:

    For all of those saying that “she” made poor decisions .. well, I highly recommend looking at video of this woman. She can barely speak and has no idea what is going on. I think her husband has far more to do with this .. well, ex husband. He had to divorce her to help her get more public assistance. Sad.

  76. Counterpoint says:

    I agree with the “blame the lawyer” people. What kind of idiot lawyer who, one would assume, specializes in this type of case and only settles for medical expenses that were already paid??

  77. AustinTXProgrammer says:

    Walmart has been doing this for years. I know someone (fairly close) that was in a traffic accident and left as a paraplegic. The at fault driver had minimum insurance of $25k. Walmart insisted that it had to go towards the medical bills they had paid first, and wouldn’t agree to any split.

    $25k would barely scratch the surface of a pain and suffering award had it been a trucking company. It barely scratched the surface of the medical bills, and the hospital claimed they were still owed $100k.

    Clearly the biggest problem was inadequate insurance requirements for the auto, but Walmart could have allowed a little bit of money for future medical expenses (which have been near $40k).

  78. IvanD says:

    The purpose of a lawsuit is not only to recover money for medical expenses… but could have been for pain and suffering or ‘punitive’ damages. The intent of her family might have been to punish the ineptitude of their driver or some lapse in their safety procedures. Maybe it wasn’t criminal, but civilly they might have been liable to her and her family. I can’t believe everybody looks at this in such a single-minded aspect. It’s not some ‘greedy’ family that’s trying to get a lottery. Their f*cking mom/wife is basically dead! Wal-Mart should make it right by paying medical expenses, but that doesn’t absolve that other company of guilt and SHOULD the other company have to pay money as restitution (or retribution!), that doesn’t mean that Wal-Mart should be entitled to all of it… only the part that is awarded for medical expenses. Doesn’t that make more sense?

  79. VikingP77 says:

    I think this lady deserves every penny and more.

  80. woogychuck says:

    @oakie: Actually, I’m pretty sure I didn’t say that Wal-Mart should pay. In fact, the only reason Wal-Mart is even mentioned is to increase the hatred of that POS company.

    They way I see it, the Shanks were screwed by their attorney. Wal-Mart’s insurance was within it’s rights to ask for the money and the lawyer should have known this. If the lawyer was half-way decent, the settlement would’ve been enough to cover her future wages and payback the insurance company.

    The trucking company should be responsible for covering every cent of her medical bills and enough money to cover her lack of income.

  81. Trojan69 says:

    I must have completely missed something….

    Why the hell was the victim suing the trucking company for anything? Was it to get compensation for future damages?

    Wal*Mart’s insurer was the party who needed to sue for the original $400K. I am shocked that they didn’t.

    The victim’s lawyer is rotten. How could he not win a judgment for such obvious future expenses against GEM? The victim has ZERO incentive to settle. ZERO. This didn’t go to a jury for judgment? Why the hell not?

    Even if the law wouldn’t allow the jury to consider that the first $400K of any judgment would have gone to the insurer, there are blindingly clear grounds to award compensation for future care.

    What about the judge? He had to know this was coming. Where is his/her conscience? He didn’t warn the victim that she wouldn’t see any more money, and in fact, would likely end up owing the insurer?

  82. this article doesnt say this, but if this is the same story I remember reading about a few months ago (lord I hope so, I’d hate to think the same thing happened twice) the company she sued had a policy up to 1M dollars. Facing that kind of cap, her lawyer got her the max possible.

    That said she literally would have been better off not suing because once she did, and they admit liability Walmart is entitled to every penny they spent back (though many will work out a percentage. My company did when I was in a similar situation. Compounding this problem is that now Walmart doesn’t have to pay a dime from here on out, and the insurance company has already paid it’s max so they don’t have to pay. Had she not sued, then Walmart would’ve kept paying till the day she breathes her last breathe. Now she’ll have to rely on the government presumably.

    The only reason this lasuit went forward is cause the lawyer would make money. He should’ve told them not to sue, but what lawyer would do that?

    So this isn’t a story about big bad uncaring Walmart, it’s about a jagoff lawyer.

  83. RustysNailed says:

    @ThomFabian:
    Because morals and ethics are totally different concepts. Morally, WalMart’s insurance company is taking advantage of a sick woman. Ethically, they are following the letter of the law and their agreement with the insured.

    What i dont understand is that she has ongoing medical expenses, so it is not as if her suit with the trucking company made everything better.

  84. AustinTXProgrammer says:

    @warf0x0r:
    Walmart self insures, the health “insurance” company is just a plan administrator and passes the costs back to Walmart. I have no idea what the fees are in a situation like this, but it is not uncommon for large companies.

  85. TheUncleBob says:

    @painfullyblunt: It shouldn’t matter what the trucking company’s insurance policy covered and didn’t cover. The settlement amount should have been based on this woman’s losses (past, future and legal bills). The insurance company would then come in and pay their limit and it should be up to the trucking company to come up with the rest.

  86. LawyerontheDL says:

    The woman’s attorney is the real rascal here. Any attorney with half a brain knows that you have to deal with anyone having a lien against the proceeds of a settlement, such as Walmart, before you agree to anything. You can usually get the lienor to lessen the amount of the lien. Still, it stinks that Walmart, with its insane revenues, is taking the money away from a disabled woman. However, they didn’t get all that money by giving away $400,000.

  87. dorkins says:

    Shouldn’t she be suing her incompetent idiot lawyer?

  88. Blackneto says:

    walmart is dickish.
    and I will jump on an op to slam them. but this would most likely happen with any company.
    It would with mine, it’s in the contract…

  89. jplanet says:

    I haven’t read all the posts on this page, but here is a site where you can send an email to Wal-Mart exec Gisel Ruiz: [action.walmartwatch.com]
    or email directly Gisel.Ruiz@wal-mart.com

  90. TheUncleBob says:

    And here is where you can send a letter to Maurice Graham, Mrs. Shank’s lawyer: [www.grgpc.com]

    Gray, Ritter & Graham, P.C.
    701 Market Street, Ste 800
    St. Louis, Missouri 63101

    Or call him: (314) 241-5620

    Or e-mail him: mgraham@grgpc.com

  91. @Steve Trachsel, Ace. No, really, ACE: She should have sued for damages, loss of wages, pain and suffering ANYTHING other than medical expenses.

    I agree her lawyer really dropped the ball on this one.

  92. Vanvi says:

    @modenastradale: Finally. I can’t believe it took this many comments for someone to recognize that people pay premiums for insurance. You pay so that you can receive a large amount of money in case something catastrophic happens. It does sound like her lawyer screwed up, but I think she deserves all that money.

  93. TheUncleBob says:

    People pay for insurance, yes. The insurance is a “just in case everything goes wrong” thing though. If this woman had been involved in a 1 vehicle accident or a hit-and-run where the other driver was never caught, the insurance would likely have paid up.

    However, as someone was at fault, this other party should be responsible for paying 100% of the medical bills, damages, and legal fees. Not Mrs. Shank and not Wal*Mart. GEM Trucking LLC.

  94. devans1164 says:

    Sad situation. I worked in a medical office for a number of years and know that docs don’t usually wait until a court case settles to get money they are owed.
    It is quite possible that this lady had to allow her insurance to pay (referring to subrogation)just to continue getting services from the docs without being harrassed or turned over for collections. This kept a flow of $$ coming in on her bills. Law suits as we all know can stretch out for years and my bet is that she/her husband had collectors breathing down their neck. I totally agree that her lawyer should have made sure her insurance company would be paid back as part of the settlement, then address future expenses. Regardless of what insurance company you are insured through, that is pretty much the way it works now days, probably because in the past people actually made money off the insurance company. Again, I think the lawyer could have done better. He could consider helping cover this with part of his fee for the case. (Probably not in this lifetime)

  95. chanelrs says:

    I understand she shouldn’t be able to double dip, but what more can you take away from her and her family? I think since Walmart says they give to charity maybe that family should be the charity right now. The story I saw on the news…she has brain damage but can understand alot of things. Her son just died in the war not that long ago and every time someone mentions it. Its like she hears it for the first time and goes through all the emotion of losing a child again. that sucks. Walmart should just donate her money back to her. Its not unethical or immoral. Its just so sad.

  96. pyro789x says:

    Sounds perfectly reasonable to me. If anything, I’m disappointed in Consumerist for becoming so sensationalized. I used to love you guys and I read you every day, why do you have to spew such crap? The title itself clearly contains sensationalized extraneous information, “Walmart Successfully Sues Brain-Damaged Worker for $469,216″. Who cares about the fact that this double dipper was brain damaged? That’s extra info that does not belong in the title, and is meant only to push us in one direction without even having read the article yet. Is that what you guys want to be known as? Here’s a title suggestion for you, if you should happen to actually care and want to revise your article: “Walmart Successfully Sues Worker Who Was Paid Twice for Same Accident for the Extra Money that She Did Not Spend On Health Bills.”

    P.S. Yes, I DID register just to post this message.

  97. tomcatt2 says:

    Walmart Sucks!!! I work for them so I know. They try to get more and more work out of their employees while not hiring help to replace workers who have left or been fired. They count every call out against you even bereavement. They say if it is not immediate family you can’t call out. They have an attendance policy which they call a rolling six. If you call out in January it isheld against you until July. Some people have 2 callouts and are spoken to while others have 40 or more and never get fired. They are supposed to be fired after 7. All the kiss butts and pets get 60cent raises even if they do nothing while the workers who really try only get 40cents. There health plan is a company funded plan so walmart not the Insurance company Which is walmart is the bad guy. It is called The Associate Health and Welfare Plan funded by WALMART. So they should not sue this woman. they already get blood from their associates. you can’t put merchandise in carriages, carriages are for “customers only” and you will be coached if you use a shopping cart. So you have to make a thousand trips aday back and forth with merchandise or just let it pile up. Cashiers and all front end associates are timed on their breaks. you have to do an action code which tells what time you leave your register and another action code when you come back. God forbid if you are 2 minutes late, No going to the bathroom that can only be done during your lunch or break. Other associates like sales help and dept managers are not accountable for breaks. They do not have to do action codes. They are allowed to to go to the bathroom anytime they want and they often take a 30 minbreak instead of a nute breaks for 15. So there is alot of unequalness. Yes walmart sucks. They are doing to this woman what they do to their associates everyday.

  98. Lbskee says:

    Wal Mart is a ruthless, blood sucking, Anti-American company that treats their employees like crap.

    The fact that this family will have to go bankrupt because Wal Mart wants to be paid back is awful.

    Wal-Mart just continues to sit on their $400 Billion throne, and pull the “it’s only fair card”, goes to show you how ruthless they are.

    The husband has cancer, they lost a son to the war in Iraq – Shame on you Wal-Mart. Since you give so much to other countries with your out sourcing, why don’t you do something American for a change and give this family a break!