§663-10  Collateral sources; protection for liens and rights of subrogation.  (a)  In any civil action in tort, the court, before any judgment or stipulation to dismiss the action is approved, shall determine the validity of any claim of a lien against the amount of the judgment or settlement by any person who files timely notice of the claim to the court or to the parties in the action.  The judgment entered, or the order subsequent to settlement, shall include a statement of the amounts, if any, due and owing to any person determined by the court to be a holder of a valid lien and to be paid to the lienholder out of the amount of the corresponding special damages recovered by the judgment or settlement.  In determining the payment due the lienholder, the court shall deduct from the payment a reasonable sum for the costs and fees incurred by the party who brought the civil action in tort.  As used in this section, lien means a lien arising out of a claim for payments made or indemnified from collateral sources, including health insurance or benefits, for costs and expenses arising out of the injury which is the subject of the civil action in tort.  If there is a settlement before suit is filed or there is no civil action pending, then any party may petition a court of competent jurisdiction for a determination of the validity and amount of any claim of a lien.

     (b)  Where an entity licensed under chapter 432 or 432D possesses a lien or potential lien under this section:

     (1)  The person whose settlement or judgment is subject to the lien or potential lien shall submit timely notice of a third-party claim, third-party recovery of damages, and related information to allow the lienholder or potential lienholder to determine the extent of reimbursement required.  A refusal to submit timely notice shall constitute a waiver by that person of section 431:13-103(a)(10).  An entity shall be entitled to reimbursement of any benefits erroneously paid due to untimely notice of a third-party claim;

     (2)  A reimbursement dispute shall be subject to binding arbitration in lieu of court proceedings if the party receiving recovery and the lienholder agree to submit the dispute to binding arbitration, and the process used shall be as agreed to by the parties in their binding arbitration agreement; and

     (3)  In any proceeding under this section to determine the validity and amount of reimbursement, the court or arbitrator shall allow a lienholder or person claiming a lien sufficient time and opportunity for discovery and investigation.

     For purposes of this subsection:

     "Third-party claim" means any tort claim for monetary recovery or damages that the individual has against any person, entity, or insurer, other than the entity licensed under chapter 432 or 432D.

     "Timely notice of a third-party claim" means a reasonable time after any written claim or demand for damages, settlement recovery, or insurance proceeds is made by or on behalf of the person. [L Sp 1986, c 2, §16; am L 2000, c 29, §2; am L 2002, c 228, §2]

Case Notes

  Where plaintiff, an insured motorcyclist who sustained injuries when plaintiff was struck by a vehicle and obtained a $1.5 million tort settlement against the third-party driver of that vehicle, alleged that state statutes barred health insurer's claim for reimbursement for medical expenses insurer paid and insurer's lien on the settlement, the appellate court affirmed that this section and §431:13-103 did not conflict with the Employee Retirement Income Security Act of 1974 (ERISA) and did not impermissibly expand the scope of liability under §502(a) of ERISA.  Instead, this section and §431:13-103 only impacted the insurer's subrogation rights against a third party tort settlement fund and there were no statutory provisions of ERISA that addressed reimbursement limitations.  937 F.3d 1262 (2019).

  Where plaintiff, an insured motorcyclist who sustained injuries when plaintiff was struck by a vehicle and obtained a $1.5 million tort settlement against the third-party driver of that vehicle, alleged that state statutes barred health insurer's claim for reimbursement for medical expenses insurer paid and insurer's lien on the settlement, the appellate court affirmed that under the saving clause of §514 of the Employee Retirement Income Security Act of 1974, this section and §431:13-103 were saved from express preemption because they were directed at insurance practices and impacted risk pooling.  Read together, these statutes prohibited an insurer from seeking certain types of reimbursement, thus impacting the eventual net value of any payment made to a plan member, i.e., insurers face more risk than they would otherwise.  937 F.3d 1262 (2019).

  Appellant's motion to determine its lien on settlement was properly denied, because this section unambiguously applies to collateral source payors, which appellant was not.  76 H. 266, 874 P.2d 1091 (1994).

  Cited:  73 H. 403, 833 P.2d 890 (1992).

  Discussed:  183 F. Supp. 3d 1094 (2016).