SIOUX FALLS, S.D. (KELO) — Have you ever read the fine print in your health insurance policy? You may be surprised by some of the terms, especially if you get seriously hurt and expect an insurance settlement. A South Dakota motorcyclist found that out the hard way.
D.J. Toczek is a teacher and coach who was hit on a Wyoming Interstate in 2017 by a man who was high, drunk and running from the law.
Toczek suffered a traumatic brain injury, broken back and other broken bones and injuries. Now Toczek is fighting back against efforts by his health insurance company to take away his auto insurance settlement and he believes South Dakota law is on his side.
On July 8th, 2017, D.J. Toczek, took a motorcycle ride across the state line into Wyoming to see Devil’s Tower.
“I remember getting on the on-ramp and it just went and it’s gone. I don’t remember anything after that,” Toczek said.
At the same time, Toczek was on the interstate, Christopher Nesius was fleeing from police, drunk, high on meth, and going 100 miles per hour.
“He comes up from behind and rear ends me. “When he hit me, they think I flew up onto the pickup and rode the pickup to the ditch and then rolled off the pickup and rolled and rolled and rolled,” Toczek said.
Toczek doesn’t remember anything until waking up in the hospital 16 days later.
“I could feel something pushing on my chest; my whole body convulsing. And I could hear a man yelling at me–almost distantly yelling at me as the pressure was increasing and yelling was increasing: ‘D.J., wake up; wake up D.J. You have to breathe if you want to live you’ve got to breathe,’ and I instantly took a gasp of breath. And it was like a light switch turned on,” Toczek said.
Toczek had a host of broken bones and shattered vertebrae in his neck.
“The worst injury I suffered was a very severe traumatic brain injury, which is the highest level of brain injury you can suffer,” Toczek said.
Nesius was sentenced to up to 23 years in prison for aggravated assault and causing serious bodily harm while driving under the influence.
Nesius didn’t have any insurance, and was ordered to pay more than $330,835 in restitution to Toczek, but doesn’t have any money.
However, Toczek was able to collect $350,000 from his own uninsured motorist coverage.
He went on to Craig Hospital in Denver for brain injury rehabilitation. His Wellmark health insurance, provided through the New Underwood School District, where he was a teacher, covered his medical bills at a cost of $332,705.
Toczek went back to teaching part-time in New Underwood just 6 months after that catastrophic crash. However, three months later, New Underwood let him go.
Toczek: I cursed twice in class.
Kennecke: At a student?
Toczek: One was at a student, one was not. I apologized.
Kennecke: Do you attribute that behavior to your brain injury?
Toczek: I do. As a result of that day I suffered from PTSD and depression, panic attacks.
Toczek was without an income and a new dad. Then he did something completely unexpected.
Toczek: I decided I was going to take two years off to get my master’s and focus on–let my brain heal.
Kennecke: How does someone with a brain injury get their master’s degree?
Toczek: I’ve been asked that a lot and honestly I don’t know.
He may not know exactly how he did it, but Toczek has come farther than anyone expected. He landed a new job teaching at Bennett County School District. This former college athlete is also the athletic director and football coach.
But that doesn’t mean his life has returned to normal.
Toczek: As you look at me, you can hardly tell. I mean there are scars on my hand, but otherwise, you can hardly tell I suffered a brain injury and that I’m wounded. The pain is every day, all day. So it still hasn’t ended. I have a high pain tolerance, so that helps me.
Kennecke: Are you in pain right now.
Toczek: Yes. My neck and my shoulder.
Toczek needs more surgeries and his future medical bills are expected to run more than $400,000. He can’t touch the $350,000 he got from his auto insurance company because Rawlings, a Kentucky collection agency, has placed a lean on it, on behalf of Wellmark.
“So he’s not even out of the hospital, we don’t even know if he’s going to live and they’re already saying you have to pay us back for this,” Roger Baron said.
Roger Baron is a retired law professor who specializes in subrogation cases.
Subrogation is an insurer’s right to recover the amount it has paid for a loss from a third party that caused the loss. Collection agencies, like Rawlings, working on behalf of insurance companies have turned it into a $2.5 billion dollar business.
“Subrogation is a way of holding down insurance premiums. It’s a way of making sure the party responsible for the loss is the one held culpable and it also prevents a double recovery,” Attorney and Subrogation Expert, Gary Wickert, said.
“They write it into terms of the health plan, which most people never see. They don’t have the right to bargain with the terms. It’s written in there that they have the right to go after anyone that injured you or any payment you might receive, including your own separate insurance,” Baron said.
“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 has filed a civil lawsuit against the New Underwood School District because, while it is administered by Wellmark, the health plan is self-funded by the district.
“I talked to the superintendent, she visited with the school board. They had no idea that they were going after this money from D.J. They said we don’t want the money back. They told me point blank, ‘we don’t want the money back,'” Baron said.
The New Underwood School District declined to comment for this story. But Baron believes South Dakota law will prevail in Toczek’s favor because he is the victim of a crime.
“We think the law is on his side 100 percent. Up until now, there has not been any court to look at it. We’ve been caught up in the bureaucracy of the insurance industry,” Baron said.
According to South Dakota law, “Any victim who has suffered pecuniary damages has priority of claim.”
“Of course his health plan is claiming they have the right to be repaid. And in their document, they give themselves the right to be repaid. But in that criminal statute, he has priority over that. In other words, D.J. comes first, not his health insurance company,” Baron said.
Wickert, who is a leading expert on insurance subrogation says a South Dakota Supreme Court Case found that insurance companies can be victims too.
“I mean they’re both victims. One happens to have a little more compassion on his side because he’s just an innocent kid driving on his motorcycle. But from a legal standpoint, which is the way lawyers think, there is a case out there that says the group health plan would also be a victim under that statute,” Wickert said.
Baron disagrees that subrogation is used by insurance companies to keep costs for policyholders from rising.
“It goes to the benefit of insurance companies like Wellmark. It goes to profit and it goes to things like executive compensation. It’s corporate greed,” Baron said.
Toczek says there are plenty of expenses involved in just getting to his follow-up appointments at Craig in Denver and says he needs the money, not only for himself but for his three-year-old daughter, Avery.
“She might have a father that’s going to be in a wheelchair at one point, or using a walker at a young age or using a cane. She’s the one that’s going to be affected by it as much as myself,” Toczek said.
Kennecke: Do you feel re-victimized by the insurance company?
Toczek: You definitely feel like the little man in this scenario; you don’t matter. That’s why you have insurance–they’re supposed to be there for you. It’s the opposite case here.
Kennecke: You’ll never be the D.J. that you were before this happened.
Toczek: No, not at all. A lot of people would say I’m better–I’m better off than what I was. I’ve learned more and have come so much farther than where I was before. I’m more sympathetic and understanding than I used to be. But I definitely lost a good chunk of myself on that day.
KELOLAND Investigates attempted to get Wellmark’s side of the story multiple times, but our messages were never returned. We also reached out to Rawlings, who’s trying to collect the money and would get 20 percent of it, but we haven’t heard back. No court date has been set yet in Toczek’s civil suit against the New Underwood School District.