West Virginia Health Plan Reimbursement: Made-Whole and Common Fund

By the FigureMyTax Editorial Team · How we calculate

We did not find a West Virginia statute that governs a private health plan's reimbursement from your settlement. A compendium of subrogation law reports that West Virginia allows subrogation of medical benefits, applies the made-whole and common fund rules, lets a plan contract out of made-whole, and treats a settlement as fixing the amount that makes you whole.

What the made-whole rule is

The made-whole doctrine says an insurer that paid your bills cannot be repaid from your recovery until you have been fully compensated. Some states enact it by statute; others leave it to courts.

What a compendium reports

A law-firm compilation of West Virginia subrogation law reports that West Virginia strongly adheres to the made-whole doctrine, that parties may contract out of it in a policy or plan, and that the common fund doctrine applies. It also reports that a jury verdict represents the amount needed to make you whole, and that when you settle with the tortfeasor the amount needed to make you whole is fixed by the settlement, so you cannot deny that you were made whole. We did not read the decisions, so treat these as leads.

A worked example

Say a health plan paid $9,000 and you settle for $100,000 with a one-third fee and $3,000 in costs. Because the settlement fixes the made-whole amount, the plan can claim repayment, and under the common fund rule it bears about 36.3 percent of its claim, so it recovers about $5,730. If its contract displaces the common fund rule, or it is a self-funded plan under federal law, it may take the full $9,000. The West Virginia medical lien calculator shows both.

Medicaid is different

Medicaid has its own statute with a priority right and a pro rata fee share (W. Va. Code 9-5-11). See the Medicare and Medicaid post.

What to do

Before you settle, ask for an itemized claim and the plan document, and decide whether to argue made-whole before the settlement fixes it. Ask whether the plan is insured or self-funded, and ask it to share your fees and costs. See how provider bills differ from liens.

This is general information, not legal advice, and the state comparisons above are illustrative, not an exhaustive survey. Confirm how West Virginia's rules apply to your specific case with a licensed West Virginia attorney.