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Insurance battle pits injured man against New Underwood School District
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Insurance battle pits injured man against New Underwood School District

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A former New Underwood teacher and coach, who was seriously injured in a July 2017 Wyoming motorcycle crash, is looking to recover $4 million in damages as a result of his injuries.

Holding up matters, however, is a complicated insurance battle between the injured party, his motorcycle insurance company,  the New Underwood School District and the district's health insurance provider.

According to a complaint filed against the New Underwood School District, former teacher D.J. Toczek was throw from his motorcycle on July 8, 2017 after a vehicle driven by Christopher Nesius crashed into him while fleeing from law enforcement at more than 100 mph on an interstate in Wyoming.

Nesius was uninsured, sentenced to prison and ordered to pay $330,835 in restitution.

Toczek suffered a traumatic brain injury, among other very severe fractures which required immediate medical attention and in-patient treatment. Toczek said his recovery is far from over.

However, Toczek cannot touch the settlement funds, which were paid from the uninsured motorist coverage that was part of the insurance plan covering the motorcycle. 

That's because Toczek's health insurance provider, Wellmark, has filed a subrogation claim for $332,705, according to the complaint.

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The New Underwood School District provided Toczek with the Black Hills Educational Benefits Cooperative Health Plan, which is administered by Wellmark Blue Cross and Blue Shield of South Dakota. Wellmark contracted Rawlings Group, a compensation recovery group that outsources subrogation services to health insurance providers.

Wellmark paid Rawlings Group to find out if the insurer is legally entitled to reimbursement out of personal injury settlements or verdicts.

Toczek's attorneys filed a lawsuit against the New Underwood School District on Aug. 12, seeking declaratory judgment that would waive the school district's right to subrogation, thus allowing Toczek to receive his settlement funds. 

Attorney and University of South Dakota School of Law Professor Emeritus Roger Baron, and Rapid City-based attorneys Frank Bettman and Tina Hogue are representing Toczek. Baron said the New Underwood school board members weren't aware of the subrogation claim, nor did they have any desire to pursue repayment of the medical bills. 

Rodney Freeman Jr., an attorney with a Huron law firm, was approved by the New Underwood School Board to provide legal services to the school district and has been advising the board on the matter. So far, the school district has received requests from Toczek's attorneys to waive the subrogation claim in mid-July. 

Wellmark's representative is still pursing the subrogation claim anyway, claiming that the insurance plan provides the company the right to do so regardless of the school district's wishes. 

Without a waiver from the school district, Toczek's attorneys are forced to take the matter to court. 

New Underwood School Superintendent Katie Albers declined to comment. 

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