This article has been revised to reflect the following correction: This story was updated to clarify how the money from the settlement was distributed.
SIOUX FALLS, S.D. (KELO) — A South Dakota teacher will be able to keep part of an insurance settlement he received after a crash that left him with a brain injury.
KELOLAND Investigates first brought you D.J. Toczek’s story in August. He was riding his motorcycle in 2017 when he was hit on the interstate by a man who was high, drunk and running from the law. Not only has regaining his health been a long battle, so has his fight with his health insurance company, Wellmark.
After suffering catastrophic injuries in the 2017 crash, the man fleeing from the law who hit him was sentenced to prison and D.J. Toczek was able to collect $350,000 from his own uninsured motorist coverage. As a New Underwood teacher, he had health insurance through an educational co-op, which was with Wellmark. His medical bills were paid through his health insurance, but then Wellmark demanded they be paid back with the proceeds from his auto insurance company. It’s something in the insurance industry known as subrogation.
“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 on August 25, during our first interview.
Toczek sued to keep the money and his attorneys believed that South Dakota law protected him from subrogation because he was the victim of the crime. The case has now been settled out of court.
“More than anything it’s just a relief, that it’s over finally, you know. It’s completely metaphorical, but it’s been four and a half years and it finally feels that I can put this all to rest and stop fighting for once,” Toczek said.
Toczek will keep $120,000. Another $120,000 will pay for court costs, his attorneys, taxes and other fees. All together, the Black Hills Educational Benefits Cooperative, Wellmark and the Rawlings Company received a total of $110,000.
Kennecke: Are you happy with the settlement? Do you think it’s fair?
Roger Baron, Toczek Attorney: I don’t think DJ should have to pay any money. But in terms of settlements on these subrogation claims, I think it’s a fair settlement. And DJ will be able to put this behind him now and move forward.
And that’s exactly what Toczek plans to do, putting most of the money he keeps away for future medical needs, but setting aside a portion for someone special, his daughter, Avery.
“I’ve always told her that we’re going to go to Disney World when she’s 8-10, so I’ll just put that money in an account and save it up so that when we want to, we can go to Disney World,” Toczek said.
A bill to better protect the insured from subrogation by insurance companies in South Dakota passed the legislature in 2010.
But it was vetoed by then-governor Mike Rounds, who had owned an insurance company, saying it went too far. KELOLAND Investigates reached out to the attorney representing the other parties in the Toczek case for comment on the settlement, but we haven’t heard back.