New Underwood School responds to lawsuit by former teacher


SIOUX FALLS, S.D. (KELO) — Tonight we have an update on our KELOLAND News investigation into an insurance subrogation case involving a South Dakota teacher and coach who was hit on the interstate by a man who was high, drunk and running from the law.

The New Underwood School District has responded to the lawsuit filed by D.J. Toczek.

You’ll remember that our story focused on this case, which demonstrates the larger issue of insurance subrogation.

Subrogation by insurance companies and the collection agencies they hire has become a multi-billion dollar business.

It’s all about the insurance company’s right to recover the amount it has paid for a loss from a third party that caused the loss.

In the case of D.J. Toczek, he was caught in the middle of an unusual case because he is also the victim of a crime.

Former New Underwood teacher, D.J. Toczek suffered a traumatic brain injury in a 2017 crash

D.J. Toczek’s medical bills added up to more than $300,000, which were covered by his health insurance through the New Underwood School District where he was a teacher. The man who hit him went to prison. Toczek was able to collect $350,000 from his own uninsured motorist coverage in the crash. But the administrator of his health plan, Wellmark, said it was entitled to that money and hired a collection agency to get it.

“To be honest, it’s confusing to me because it’s not their money. It doesn’t have anything to do with them, it was given to me as a result of a wreck based on me having insurance on my pickup and my motorcycle,” Toczek said.

Toczek filed a civil lawsuit against the New Underwood School District because, while the health plan is administered by Wellmark, it is self-funded by the district.

Only now, in its answer to Toczek’s lawsuit, the New Underwood School District says Toczek should be suing the Black Hills Education Benefits Cooperative and Wellmark.

According to the school district’s response, The Cooperative paid up to $70,000 of Mr. Toczek’s medical expenses and Wellmark paid the rest and are the ones entitled to subrogation, not the school district.

Wellmark has not responded to our repeated emails asking about the case. We’ve also reached out to Black Hills Education Benefits Cooperative, who told us, “no comment.”

Tocek’s attorneys believe that a state law protecting victims of crimes applies in this case and that Toczek is entitled to keep his auto insurance money.

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