Published Articles

General Subrogation

Making Subrogation While The Hay Shines

Every year in North America insurers pay out tens of millions of claim dollars resulting from fires and feed damage caused by the spontaneous combustion and heating of hay mow – a pile of hay stored in or near a barn. Spontaneous combustion is the result of a chemical reaction that occurs when combustible materials combine with oxygen, generating heat which eventually ignites the hay. Subrogation opportunities abound once you realize that the careless storage of hay can result in a catastrophic fire and that the wetter the hay, the more likely it is to start on fire. Written by Gary L. Wickert, published in Claims Journal on January 7, 2016.

If It Seems Too Good To Be True: The Problem With Cut-Rate Subrogation Vendors

A new generation of opportunistic subrogation and claims vendors, often owned by lawyers who have experienced first-hand the cost-conscious insurance industry’s attraction to low rates, has had great success by offering contingent fee rates too good to be true. The lowest contingent fees guarantee that many files will be settled for less than their true value and that larger files that should see the inside of a courtroom in order to get top dollar never will. Like insurance catnip, however, the low contingent fees serve up the mirage of fee containment while simultaneously devaluing an entire book of business. The only winner here is the short-lived vendor, who profits by selling short the wheat and leaving the client with the devalued chaff. Article written by Gary L. Wickert, published in Claims Journal on November 5, 2015.

Feds To Require Speed Limiters On Trucks

The Department of Transportation (DOT) is about to mandate the use of speed limiters – also known as Electronic Control Modules (ECM) – on certain trucks traveling U.S. highways. The department’s March 2014 “Report of Significant Rulemaking” states that this new rule may become reality as soon as October of this year. Read this article to learn more. Claims Journal, May 1, 2014

Liability for Allowing Drunk Driving: The Death of Personal Responsiblity?

It used to be that friends wouldn’t let friends drive drunk because they cared about their friends. Today, it’s become a legal obligation. Imposing liability on a person for failing to inject himself as a surrogate parent into the life of another person, strangers and friends, is a bad idea. It opens a Pandora’s Box of devastatingly-bad legal precedent. Our laws reflect our society and, as a society, we are witnessing the slow death of personal responsibility. Claims Journal, January 2, 2014.

Understanding Comparative Fault, Contributory Negligence and Joint & Several Liability

Effective subrogation requires a thorough understanding of some of the more confusing legal terms we must all work with. MWL has compiled a list of the various laws in every state dealing with whether the state is a contributory negligence state (bars recovery with only 1 percent of fault by the plaintiff) or a comparative negligence state (recovery by plaintiff is reduced or prohibited based on the percentage of fault attributed to the plaintiff), and whether the state is a pure comparative or modified comparative state. Claims Journal, September 5, 2013.

Gathering Pebbles: Subrogation’s Burden Of Proof

This article serves as a reminder to subrogation professionals that the burden of proving someone or something has caused property damage or personal injury is on the subrogated insurance carrier. Claims Journal, August 1, 2013

Understanding Experience Modifers: Can Subrogation Really Affect Premiums? (PDF)

A look at how subrogation improves loss histories and helps keep premiums low. Claims Journal, January 4, 2013

Insurers Liability For Negligent Inspections (PDF)

A look at the insurers liability for negligent inspections conducted on an insureds premises, also known as field inspections or loss control surveys. Self-Funding Magazine.Com, February 2011

Subrogation And The Seat Belt Defense

A look at the seat belt laws and seat belt defense for all 50 states. Self-Funding Magazine, September 8, 2010

The Societal Benefits Of Subrogation (PDF)

A look at the origin and purposes of subrogation and the important role it plans in society and to an insurance company’s bottom line. Self-Funding, September 8, 2010

Squeezing The Turnip: Fidelity And Surety Bond Subrogation (PDF)

The ABCs of subrogating fidelity and surety bonds and identifying and pursuing alternative sources of recoveries when employee honesty results in claim payments. NASP Subrogator, Spring/Summer 2007

Contracting Away Made Whole: Does The Made Whole Doctrine Apply If Your Policy/Plan Says It Doesn’t? (PDF)

A look at how different states handle insurance contracts containing language disclaiming the Made Whole Doctrine. NASP Subrogator, Fall 2006

Where’s The Deductible? A Survey Of Laws Regarding Reimbursement Of An Insured’s Deductible In All 50 States (PDF)

A look at what the carrier’s obligation is with regard to reimbursing its insured’s deductible. NASP Subrogator, Spring/Summer 2006

Subrogating South Of The Border: Increasing Recovery Opportunities In Mexico (PDF)

A look at subrogating in Mexico. NASP Subrogator, Fall 2004

The Paper Chase: Subrogating In A Paperless World (PDF)

A look at insurance companies going paperless. NASP Subrogator, Spring/Summer 2003

Understanding Waivers Of Subrogation (PDF)

A look at what constitutes an effective waiver of subrogation. NASP Subrogator, November 2000

Many Insurers Overlook Advantages of Subrogation (PDF)

A look at why subrogation is important to the insurance industry. Best’s Review, Volume 96, No. 6, October 1995

Subrogation And The Self-Insured (PDF)

Discusses issues facing self-insured companies seeking recovery of losses due to third-party tortfeasors. Texas Corporate Counsel Law Review, Fall 1995

Health and ERISA Subrogation

Health Insurers Tap Subrogation Vendors To Rein in Medical Costs, Help Tame Waste

Health insurers and lawyers working in the field of subrogation say there is a sharper interest by carriers in exploring all options to recover money paid out in medical claims that should have been paid by other payers like auto insurance companies or an employer’s workers’ compensation issuers. This article published by Patrick Connole, Managing Editor for AIS Health, interviews Ryan Woody, a MWL partner, on this topic. This was a article reprinted from Health Plan Week, the most reliable source of objective business, financial and regulatory news of the health insurance industry. AIS Health, Volume 24, Issue 39, November 10, 2014.

Hedging Bets For Subrogation Success

A number of changes have affected the success of subrogation in the healthcare insurance setting – changes that financial executives need to be aware of in order to both mitigate negative impact and maximize opportunities. Kurt Ullman, this article’s author, interviewed Gary Wickert for this article, published in Healthcare Finance News on May 14, 2014.

A Victory For ERISA: U.S. Supreme Court Unanimously Holds Equity Doesn’t Trump Plan Language

On April 16, 2013, the U.S. Supreme Court issued its long-anticipated decision in U.S. Airways, Inc. v. McCutchen, 2013 WL 1567371 (2013), a case in which the future of ERISA health insurance subrogation hung in the balance. Subrogation won, trial lawyers lost. In a rare unanimous decision, the Court ruled that equitable principles (e.g., the Made Whole Doctrine and Common Fund Doctrine) cannot override the clear terms of an ERISA Plan requiring reimbursement. Claims Journal, May 2, 2013

DAVID vs. GOLIATH: I.R.S. Tax Lien vs. Med Pay Subro Lien (PDF)

On March 14, 2013, this classic tale of the underdog prevailing against great odds was recently replayed in a subrogation context in the case of Simmons Perrine Moyer Berman, PLC v. Coleman which was decided by a federal district court in Iowa. Goliath lost, and State Farm was entitled to recover their Med Pay subrogation interest. Claims Journal, April 4, 2013

Insurers Are Leaving Money On The Table If Subrogation Audit Ends With Questionnaire (PDF)

Gary Wickert is interviewed on the importance of subrogation and how subrogation can represent a substantial source of income for health plans, even though its technically reimbursement and not income. Subrogation is a significant piece of the insurance underwriting puzzle. Health Plan Week, Volume 20, No. 36, October 11, 2010

Subrogation And Medicare Set-Asides (PDF)

A look at Secondary Payer reporting requirements that create traps for subrogation professionals. NASP Subrogator, Spring/Summer 2010

Turning Off The Spigot: Future Credits In Health Insurance Subrogation (PDF)

A look at how to document and obtain future credits in health insurance subrogation. NASP Subrogator, Winter 2009

Subrogating Fully-Insured ERISA And Non-ERISA Employee Welfare Benefit Plans (PDF)

Tips for maximizing recoveries when subrogating fully-insured and non-ERISA health Plans. NASP Subrogator, Winter 2006

Health Insurance And ERISA Subrogation – Part 5: ERISA Preemption And The Common Fund Doctrine (PDF)

A look at ERISA preemption and the Common Fund Doctrine. NASP Subrogator, Winter 2006

Health Insurance And ERISA Subrogation – Part 4: ERISA Preemption And The Made Whole Doctrine (PDF)

A look at ERISA preemption and the Made Whole Doctrine. NASP Subrogator, Spring/Summer 2003

Health Insurance And ERISA Subrogation – Part 3: ERISA Subrogation Rights (PDF)

A look at how Plan language determines your subrogation rights. NASP Subrogator, Spring/Summer 2002

Health Insurance And ERISA Subrogation – Part 2: What Is An ERISA Plan (PDF)

Defining what is an ERISA Plan. NASP Subrogator, Winter 2002

Health Insurance And ERISA Subrogation – Part 1: History And Scope Of ERISA (PDF)

A look a the history and scope of ERISA. NASP Subrogator, Fall 2001, Issue III, Volume II

The Erosion Of ERISA Subrogation Rights (PDF)

Observations regarding the erosion of ERISA preemption and the impact of the Common Fund and Made Whole Doctrines. NASP Subrogator, Summer 2001, Issue I, Volume II

Medical Record Privacy, HIPAA And Its Effect On Subrogation (PDF)

Understanding and clarifying the confusion surrounding HIPAA and its effect on subrogation professionals. NASP Subrogator, Spring 2001 Issue I, Volume II

Workers' Compensation Subrogation

Arizona Legislature Adds Assignment Language To Workers’ Compensation Statute (Again)

Earlier this year, the Arizona Court of Appeals essentially rewrote § 23-1023, Arizona’s workers’ compensation subrogation statute. It was unclear why the Legislature retained phrases that speak to what happens in the second year if the employee did not file suit in the first year. The Court of Appeals referred to these changes as “a drafting oversight.” In a rare example of legislative lucidity, on April 15, 2014, the Arizona Legislature passed H.B. 2094, which amended § 23-1023. The amended language once again makes clear that if an employee does not file a third-party action within the first year after a work-related injury that right is assigned to the workers’ compensation carrier. NASP Subrogator, Fall 2014.

Confusion Surrounds Arizona Court of Appeals’ Opinion On Workers’ Compensation Statute Amendment

The Arizona Court of Appeals has reinvented the English language by making it possible to reassign something that wasn’t assigned in the first place. In Acosta v. Kiewit-Sundt, 2014 WL 250933 (Ariz. App. 2014), the Court essentially rewrote § 23-1023, Arizona’s workers’ compensation subrogation statute. Although it defies logic that a claim clearly subject to “reassignment” wouldn’t have to be assigned in the first place, it remains to be seen whether the Arizona Supreme Court fixes the court’s error. This is the strange story of a statute that unequivocally says that a third-party action may be “reassigned in its entirety to the employee” and then further goes on to describe what happens as a result of this “reassignment” but, according to the Court of Appeals, doesn’t provide for an assignment in the first place. Until the Acosta decision is reversed or overruled, we are all left to scratch our collective heads. NASP Subrogator, Spring/Summer 2014.

Subrogation And The “Oklahoma Option”

On May 6, 2013, Oklahoma Governor Mary Fallin signed S.B 1062 into law, creating a new Title 85A of the Oklahoma Workers’ Compensation Act to ultimately replace, but temporarily operate in parallel with, existing Title 85, and once again reform that state’s workers’ compensation laws, including the laws addressing subrogation. With the new law, Oklahoma joins Texas as the only states that allow employers to opt out of the workers’ compensation system, creating what is known as the “Oklahoma Option.” The law still requires employers to provide workers’ compensation coverage and benefits, but now they have two options which are outside the new “administrative” system. NASP Subrogator, Winter 2014

Tennessee Supreme Court Doubles Down On Questionable Future Credit Decisions

For four decades, a workers’ compensation carrier’s right to a future credit in Tennessee has been chipped away at and limited in its scope. On January 16, 2013, the Tennessee Supreme Court was given a chance to correct its own mistakes and right wrongs which have complicated workers’ compensation subrogation in Tennessee for decades. It chose to double down on a series of questionable decisions, continuing a long line of judicial legislating which has harmed future credits in that state. Claims Journal, March 7, 2013

The SMART Act Becomes Law: Sanity Restored To Medicare Secondary Payer Liability

The SMART Act improves the efficiency of the Medicare Secondary Payer system and process, by requiring the Centers for Medicare and Medicaid Services to streamline its process, eliminating the uncertainty and costly delays in settling claims and providing funds to the beneficiaries sooner. President Obama signed the bill into law on January 10, 2013. This article discusses the SMART Act and how it will affect subrogating workers’ compensation claims. Claims Journal, February 7, 2013

Workers’ Comp Subrogation Against Political Subdivisions Given Last Rites in Pennsylvania

A recent Pennsylvania Supreme Court case ended a see-saw legal battle over whether a workers’ compensation carrier has any rights of subrogation or reimbursement when the injured employee makes a third-party recovery. It didn’t end well for subrogation. Claims Journal, November 1, 2012

The Battle For Attorney’s Fees: Reducing Plaintiff’s Attorney’s Fees Deducted From Your Lien (PDF)

A look at the law in several states wherein the carrier has a right to argue that the plaintiff’s attorney is not entitled to a large attorney’s fee out of the lien recovery. Self-Funding Magazine.Com, October 25, 2010

Sleeping With The Enemy: Federal Statute Creates Opportunity For Subrogation Stipulation In Workers’ Compensation Files (PDF)

This article takes a closer look at federal statutes that create an opportunity for subrogation stipulation in workers’ compensation files and the importance of knowing the law of damages in your jurisdiction. NASP Subrogator, Spring/Summer 2008

Workers’ Compensation Subrogation In Construction Settings: In All 50 States (PDF)

Discusses pursuing workers’ compensation subrogation claims in construction settings throughout the country. NASP Subrogator, Winter 2006

Workers’ Compensation Subrogation: Which Payments Can Be Recovered? (PDF)

A multi-state look at the big question which remains unanswered in the statutes of all 50 states –  whether medical bill audit fees, case management costs, nurse caseworkers’ fees, and the like, can be recovered as part of a carrier’s workers’ compensation lien. NASP Subrogator, Fall 2006

Sweating The Small Stuff: Arbitrating Workers’ Compensation Subrogation Files (PDF)

Discusses arbitrating workers’ compensation subrogation files. NASP Subrogator, Spring/Summer 2006

Subrogating On The Waterfront: Longshore And Harbor Workers’ Compensation Subrogation (PDF)

An overview of longshore and harbor workers’ compensation subrogation. NASP Subrogator, Spring/Summer 2004

The Negligent Employer: Obstacle Or Advantage In Workers’ Compensation Subrogation? (PDF)

A look at how employer negligence affects workers’ compensation subrogation. NASP Subrogator, Fall 2003

The Many Faces Of Workers’ Compensation (PDF)

A survey of the different workers’ compensation subrogation laws in various states. NASP Subrogator, Spring/Summer 2002

Can Workers’ Comp Carriers Subrogate Against Uninsured And Underinsured Motorists Benefits? (PDF)

Discusses subrogating against benefits paid from a UM/UIM carrier. NASP Subrogator, Spring/Summer 2000, Premier Issue

Apportioning Attorney’s Fees In Workers’ Compensation Third Party Actions: The Need For Legislative Reform (PDF)

This is one of the first articles ever published on Texas workers’ compensation subrogation. The Houston Lawyer, Vol. 27, No. 5, March-April 1990 and Texas Bar Journal, Vol. 53, No. 8, September 1990

Property Subrogation

The Failure of No-Fault Insurance

No-fault insurance – like free health care and free education – sounds good, but doesn’t work in the real world. Contrary to public perception, no-fault does not reduce litigation costs. Litigation, over property damage (the most common dispute following an accident), and, over whether a claimant has reached a verbal or monetary threshold, continues to plague no-fault states. However, it appears that a movement away from the no-fault system is in full swing. Written by Gary L. Wickert, Published in Claims Journal on May 12, 2016.

Driverless Car Litigation: The World of George Jetson Has Arrived

Driverless cars – more appropriately known as “autonomous vehicles” – are here. Mercedes-Benz recently introduced the 2017 E-Class Sedan at the 2016 North American International Auto Show. It boasts features that would be the envy of George Jetson, with autonomous-driving capabilities that let a car go farther on its own before the driver takes over and stays on track on curvier roads. Trial lawyers are licking their chops and subrogation professionals should be right there alongside them. Written by Gary L. Wickert, Published in Claims Journal on April 7, 2016.

Subrogating Snowmageddon And Winter Roof Collapses

Winter storms this season have produced all-time record snowfall records in Maryland, Pennsylvania, and parts of New York. We are all familiar with the rise in insurance claims which go hand-in-hand with such weather events, including slip and fall injuries, ice dams, frozen pipes, water losses, etc. The melting of such accumulation also causes water seepage which rots roofs, damages insulation, leaks into attics, ruins gutters, and unleashes havoc to the interior of homes. Unfortunately, such huge snowfalls also bring with them huge property loss claims resulting from the collapse of roofs not able to withstand the weight of snow and ice. Successfully subrogating these roof collapse losses – which are often overlooked as resulting from an “Act of God” – requires both prompt and aggressive subrogation action and functioning slide rule. Written by Gary L. Wickert, published in the Claims Journal on March 3, 2016.

The Parable of the Crippled Mare: Loss-Of-Use Now Recoverable in Texas Total Loss Auto Cases

On January 8, 2016, the Texas Supreme Court in J & D Towing, LLC v. American Alternative Ins. Corp., 2016 WL 91201 (Tex. 2016), changed nearly a century of law and ruled for the first time that the owners of automobiles and other damaged personal property which are a total loss may recover loss-of-use damages. Until this decision, a person whose vehicle was totally destroyed could only recover the market value of the lost vehicle, while a person whose vehicle was repaired could also recover the loss-of-use of the vehicle. Written by Gary L. Wickert, published in Claims Journal on February 4, 2016.

Making Subrogation While The Hay Shines

Every year in North America insurers pay out tens of millions of claim dollars resulting from fires and feed damage caused by the spontaneous combustion and heating of hay mow – a pile of hay stored in or near a barn. Spontaneous combustion is the result of a chemical reaction that occurs when combustible materials combine with oxygen, generating heat which eventually ignites the hay. Subrogation opportunities abound once you realize that the careless storage of hay can result in a catastrophic fire and that the wetter the hay, the more likely it is to start on fire. Written by Gary L. Wickert, published in Claims Journal on January 7, 2016.

Where’s My Deductible?

Most automobile insurance policies require their insured to pay a deductible when a claim is made. If the auto carrier is successful in subrogating a particular loss against a third party and makes a recovery of its claim payments, the issue often comes up as to what portion, if any, of the insured’s deductible must or should be reimbursed to the insured. The law of each state differs with regard to the obligation of the insurer to reimburse its insured the deductible in a particular claim, as well as the amount to be reimbursed. This article provides a survey of laws regarding reimbursement of an insured’s deductible in all 50 states. Written by Gary Wickert, published in Claims Journal, December 3, 2015.

I Sue Dead People: When A Tortfeasor Dies, Your Subrogation Claim Doesn’t Need To Die Too

When a tortfeasor’s negligence causes injury or damage and the tortfeasor dies as a result of the incident, many victims are left wondering if civil justice has somehow eluded them. Whether you’re an injured victim or a subrogated insurance carrier thrust into the unfamiliar territory of probate court, understanding what must be done to recover when the person responsible for causing a loss dies may be the difference between a full recovery and no recovery at all. Article written by Gary L. Wickert, published in the Claims Journal on October 1, 2015.

Sudden Medical Emergencies While Driving

Trial lawyers and subrogated insurance carriers must become familiar with both the medical guidelines surrounding driving after suffering syncopal episodes and strokes, as well as the basic law of negligence and available defenses available from state-to-state when a driver claims to have sustained a medical episode resulting in loss of control and collision with a building, or worse. Knowing which defenses are available and who has the burden of proof is imperative in order to make informed legal decisions. Written by Gary L. Wickert and Caleb Katz. Published in Claims Journal, September 3, 2015.

Recovery of Sales Tax After Vehicle Total Loss

Insurance companies faced with first-party claims are responsible for paying the actual cash value or market value of an insured’s vehicle so the insured can replace it with a similar vehicle. The insurer may also be responsible for reimbursing an insured for other costs associated with purchasing a new vehicle, such as sales tax, title, and vehicle registration fees. The details of when and whether a state requires first-party and/or third-party claims to compensate a claimant for sales tax paid on a vehicle determined to be totaled or on its replacement vehicle have not been uniformly developed into a body of rules. However, a good starting point for legal research or any discussion on the subject should begin with our new chart “Recovery of Sales Tax After Vehicle Total Loss in All 50 States”, found HERE, which depicts the relevant laws on the subject across all 50 states. Written by Gary Wickert and Lee Wickert, published in Claims Journal, August 6, 2015.

Drone Wars: Airspace and Legal Rights in the Age of Drones

As technology advances, common citizens are increasingly finding themselves with the ability to obtain and fly reasonably-priced unmanned aerial vehicles (UAVs) known as drones. News broadcasts are only now beginning to reflect the growing problems we can anticipate as their use becomes more common, both privately and commercially. The proliferation of these amazing devices brings with it a whole host of legal issues which most assuredly will give rise to civil disputes and litigation. Understanding the laws affecting their use now becomes a prerequisite as opposed to an opportunity for an interesting lunch conversation. Written by Gary L. Wickert, published in Claims Journal, July 2, 2015.

Subrogating Condominium Damage

Imagine opening the door to your condo only to be confronted by several inches of standing water. The first call is to your insurance company, which must then consider not only mitigating, adjusting, and paying the claim, but subrogating against those responsible for the loss. Determining who is liable for such damage can be tricky. Condo associations carry insurance for common areas while condo owners carry coverage for their unit’s interiors, including walls, flooring, and contents. An even bigger obstacle may be overcoming state law and certain declarations intended to bar a unit owner (or their insurer) from suing/subrogating against another unit owner. Knowing the law in this area from state to state becomes critical in evaluating subrogation potential. Written by Gary L. Wickert, published in Claims Journal on June 4, 2014.

A Picture is Worth a Thousand Words: But It Could Cost You Much More

When dealing with photographs taken of other people, prudence requires that we consider the legal rights of the subject and the ethics of publishing the photo without their permission. Written by Gary L. Wickert, Claims Journal, May 7, 2015.

A Primer on Diminution in Value Claims

One of the recurring questions Matthiesen, Wickert & Lehrer, S.C. is called on to answer involves when and under what circumstances the insured suffering automobile property damage, or his or her subrogated automobile insurer, may recover for diminution in value of a damaged automobile. This article is intended to provide a global answer to many of the questions we have been asked on this subject. Written by Gary L. Wickert, Claims Journal, April 2, 2015.

Where’s The Paint? Subrogating Paint Overspray Claims

Over 1,000 vehicles a day are damaged by paint overspray in the U.S., resulting in over one-half of a billion dollars in damage and insurance claims annually. Whether or not an owner who hires an independent contractor to conduct painting operations will be responsible for paint overspray damage caused by the contractor’s negligence will be largely dependent on the state in which you are subrogating. Written by Gary L. Wickert, Claims Journal, March 5, 2015.

Squeezing Blood From The Uninsured Turnip: Suspension of Drivers’ Licenses

One of the subrogation industry’s strongest and most effective collection tools is the potential to have a debtor’s driver’s license suspended when they are involved in an accident while not being properly insured. If you are able to suspend a defendant’s driver’s license and wield the power to reinstate the license, your chances of getting the defendant to enter into an installment agreement to repay your subrogation interest is exponentially increased. MWL has created a new subrogation chart entitled Suspension of Drivers’ Licenses In All 50 States that details the drivers’ license suspension laws, regulations, and procedures for all 50 states. Written by Gary L. Wickert, Claims Journal, February 5, 2015.

Subrogating Court-Ordered Criminal Restitution

An often-ignored area of recovery for insurance companies with a right of subrogation is the possibility of obtaining court-ordered restitution from a criminal defendant as part of their sentencing. Every state handles the subject differently. This article discusses criminal restitution laws in a variety of states and links to a chart that details the restitution laws in all 50 states. Written by Gary L. Wickert, Claims Journal, January 8, 2015.

Indiana Announces Subrogation-Friendly Rule

On October 28, 2014, Indiana for the first time officially announced that whether a subrogation suit could be brought by a landlord’s insurer against a negligent tenant was to be determined on a case-by-case approach based on the reasonable expectations of the parties as reflected in the lease agreement. LBM Realty, LLC v. Mannia, 2014 WL 5461791 (Ind. App. 2014). In determining the expectations of the parties as articulated in the lease, courts should look for evidence indicating which party agreed to bear the risk of loss for a particular type of damage in question. Claims Journal, December 4, 2014

The Growing Challenge of Subrogating Globally

Attorney Richard Schuster was a speaker at the 2014 NASP Conference on Pursuing Foreign Manufacturers in Products Cases After The Supreme Court’s Nicastro Case. Just prior to this presentation, Richard was interviewed by NASP for an article entitled The Growing Challenge of Subrogating Globally, which written by Bevrlee J. Lips. NASP Daily News, November 10, 2014.

7,540 Reasons To Include Your Insured’s Deductible In Your Subrogation Claim

Insured motorists are called upon every day to pay their deductibles in order for their carriers to cover the necessary repairs to their vehicles after accidents. Many carriers include their insured’s deductibles in their subrogation demands and lawsuits, obviating the need for their insureds to take any independent action to secure their deductible payments. It makes for good customer relations and marketing to include an insured’s deductible in any subrogation demands or litigation following an accident resulting in property damage to the insured’s vehicle or other property. However, there is a much more cogent reason to include and recover the deductible on behalf of your insured. If you don’t, you might lose your subrogation rights altogether. Claims Journal, November 6, 2014.

Illinois Legislature Outsmarts Illinois Court Of Appeals

Governor Signs Amendment to § 143.24d Making Arbitration of Small Auto Property Claims Mandatory But Not Binding. In 2013, Illinois enacted 215 I.L.C.S. § 5/143.24d requiring mandatory, binding arbitration of smaller property subrogation cases  – claims involving less than $2,500 – between all auto carriers, whether they were members of arbitration or not. On December 18, 2013, the Illinois Court of Appeals held § 143.24d unconstitutional. Last month, the Illinois Legislature got the last laugh with regard to § 143.24d. Carriers must now arbitrate these claims. Claims Journal, October 2, 2014.

Recovery of Allocated Loss Adjustment Expenses In Property Subrogation Cases

Subrogating For More Than Your Insured’s Property Damage. Insurers, focused on profitability and the bottom line, are aggressively pursuing subrogation of property losses whenever possible, recouping both their claim payments and their insureds’ deductibles. But what is only now coming into focus is an effort by our industry to subrogate not only for its claim payments, but also any and all Allocated Loss Adjustment Expenses incurred in and necessitated by the claims handling process. Claims Journal, September 4, 2014.

Big Brother’s Eye in the Sky: Use of Red-Light Cameras in Accident Litigation

Intersection accidents represent a disproportionate share of vehicle crashes and, therefore, a disproportionate share of litigated cases. Credible witnesses are the key to winning cases, but credible witnesses are rare, can be cross-examined, and are often reluctant to cooperate. The growing ubiquitous presence of red-light cameras and traffic surveillance are beginning to serve as rock-solid witnesses in these often tragic incidents. Read this article to learn more. Claims Journal, August 7, 2014.

Funeral Processions and the Right-of-Way

Confusion abounds regarding when and whether a motorist in a funeral procession can run a red light. The likelihood of a serious accident involving personal injury or property damage increases greatly if you have a long string of cars going through a red light in heavy traffic. This article covers the law of all 50 states and it will provide an understanding of how funeral processions affect the legal rights and remedies of motorists and their insurers is clearly a prerequisite to the effective handling and/or subrogation of the thousands of insurance claims that flow from accidents involving funeral processions. Written by Gary Wickert – Published in Claims Journal on July 3, 2014.

Does Automobile Insurance Follow The Car Or The Driver?

This article answers the question of whether automobile insurance follows the car or the driver. The answer is that it depends on many variables, most notably the kind of insurance coverage being referred to. There are coverages that follow the car and coverages that follow the driver. In general, auto insurance follows the car instead of the driver, but the specifics of a claim can differ since insurance laws and coverage vary depending on the policy, coverage, and state being dealt with. Article written by Gary Wickert and published in Claims Journal, June 5, 2014.

You Break It, You Buy It: Understanding Anti-Indemnity Statutes

The existence of anti-indemnity statutes can have a dramatic effect on not only a subcontractor’s liability, but also its insurers’ liability and/or subrogation potential. Indemnity clauses, hold harmless language, additional insured requirements, and waiver of subrogation agreements must be understood and addressed by liability claims professionals and subrogation professionals in order to make informed decisions on the appropriate claims strategy and recovery options available to them. This article will help you understand anti-indemnity statutes. Claims Journal, April 3, 2014.

Punishing Common Courtesy

Who’s At Fault When One Driver Waves To Another Driver That It Is All Clear – And It Isn’t? Heavy traffic is moving in all lanes of a four-lane boulevard when suddenly a vehicle in the right lane comes to a complete stop and waves to a vehicle waiting to enter the roadway from a parking lot or driveway on the right, but instead of turning in front of the stopped vehicle, the vehicle goes straight and attempts to cross both lanes of traffic and is broad-sided by a vehicle travelling in the left lane. Who is at fault when it isn’t clear and tragedy strikes? The vehicle in the left lane, the vehicle entering the roadway, or the kind-hearted motorist who was simply trying to be courteous and let somebody merge in front of him? The answer might make you a little less courteous the next time you are feeling generous. Claims Journal, March 6, 2014.

Slumlord Subrogation: Subrogating Landlord/Tenant Property Losses

The ability to subrogate and negotiate successfully in landlord/tenant situations depends on a subrogation professional’s familiarity with the laws of the particular jurisdiction involved. Understanding when, where, and why subrogation actions by a landlord’s insurer against a tenant are permitted or prohibited is critical to maximizing property subrogation recoveries. This is the focus of this article. Claims Journal, February 6, 2014.

Keeping Subrogation Out Of The Dumpster

A Christmas-day article in one of our local newspapers drives home the important lesson that the first few days after a loss are critical – the first and often only chance anyone may have to identify, retain, document, investigate, and record valuable information on which a future subrogation lawsuit will depend. Things which may seem to have little or no meaning or importance may turn out to be the lynchpin of an entire subrogation action. Claims Journal, January 28, 2014.

When Is A Vehicle Considered A Total Loss?

When and whether a vehicle involved in a collision is considered “totaled” for first-party insurance purposes is an issue of great angst and confusion for most consumers. We hear horror stories about older, functioning automobiles being “totaled” simply because the frame is bent or other seemingly minor and hidden damage occurs. Even insurance professionals can get turned around navigating the maze of rules and regulations regarding the act of “totaling” a vehicle under a policy. This article will hopefully help take the guess-work out of when a car can be considered “totaled.” Claims Journal, December 5, 2013.

Florida Supreme Court Limits Ecomomic Loss Doctrine to Protect Liability Cases

In what will go down in legal history as one of the clearest and most forthright decisions in recent memory, the Florida Supreme Court has issued an opinion which limits the application of the Economic Loss Doctrine (ELD) to cases involving product liability. Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Companies, Inc., No. SC10-1022 (Fla. 2013). On March 7, 2013, the Florida Supreme Court did something rare. It admitted its mistake and righted its wrong. The application of the ELD is now limited to cases involving products liability. Claims Journal, November 7, 2013.

New Mexico Supreme Court Holds Assignment of Subrogation Interest Ineffective

It’s unthinkable that urban legends might affect the outcome of Supreme Court decisions or find their way into legal precedent – but one has. The U.S. Constitution Article I § 10 prohibits states from impairing contract obligations and the freedom to contract is an enforceable constitutional right under the 14th Amendment. In Sunnyland Farms, the Supreme Court held that an assignment of subrogation interest is ineffective because subrogation is equitable. Claims Journal, October 3, 2013.

Understanding Comparative Fault, Contributory Negligence and Joint and Several Liability

MWL has compiled a list of the laws in every state dealing with whether the state is a contributory negligence state (bars recovery with only 1% of fault by the plaintiff) or a comparative negligence state (recovery by plaintiff is reduced or prohibited based on the percentage of fault attributed to the plaintiff), and whether the state is a pure comparative or modified comparative state. Each state has different comparative fault rules and different joint and several liability laws. Understanding each is critical to evaluating and pursuing subrogation cases on a national basis. Claims Journal, September 5, 2013.

Vandalism, Fire Losses And The Doctrine Of “Inferred Intent”

Property subrogation professionals routinely see cases involving fires caused by uninsured minors playing in buildings. Often carriers won’t pursue subrogation cases against uninsured minors for fear of throwing good money after bad. A new decision by the Ohio Court of Appeals is a stark reminder to carriers to look carefully at such cases. Not only is there “easy” – albeit limited – money to be recovered by applying the straightforward parental responsibility laws, but liability coverage through the parent’s homeowner’s policies might be more accessible than previously thought. Read MWL’s article on Vandalism, Fires Losses And The Doctrine of “Inferred Intent” published in the Claims Journal, July 11, 2013.

West Fertilizer Company Explosion In Texas And The Role Of Experts

On April 17, 2013, a fire of as-of-yet-undetermined origin at the West Fertilizer Company in West, Texas ignited as much as 270 tons of ammonium nitrate being stored at the facility. The resulting blast left a 90-foot-wide crater and caused an estimated $125 million in damage. MWL was quickly engaged to hire experts, conduct an investigation, and aggressively subrogate for damages to over 275 nearby homes and businesses. As we gather and prepare experts for the long investigation and litigation to follow, we are reminded of the importance of preserving evidence, avoiding and preventing spoliation, and selecting the appropriate experts whose investigation and opinions must comply with NFPA 921, Guide for Fire and Explosion Investigations. Claim Journal, June 6, 2013

American Family Insurance v. Golke Brothers: NASP To Appear As Amicus Curiae Before Wisconsin Supreme Court In Spoliation Case (PDF)

NASP hopes this case will help delineate what steps subrogation professionals need to do to prevent a “spoliation” argument and to further clarify what the obligation of a defendant is with regard to failing to engage in the inspection. NASP Subrogator, Spring/Summer 2008

The Perfect Storm: The Science Behind Subrogating Catastrophic Flood Losses

Discusses important considerations in subrogating flood losses. NASP Subrogator, Winter 2007

Duplex: Subrogating Landlord/Tenant Property Losses (PDF)

Understanding when, where, and why a landlord’s insurer can subrogate against a tenant. NASP Subrogator, Winter 2007

Subrogation And The Economic Loss Doctrine: A 50 State Survey (PDF)

A discussion on the Economic Loss Doctrine and its impact on subrogation throughout the country. NASP Subrogator, Spring/Summer 2007

Where’s The Luggage? Subrogating For Lost Or Damaged Luggage (PDF)

Subrogating professionals need to be familiar with what can and cannot be recovered when an airline destroys or loses valuable luggage for which an insurance company pays a claim and attempts to subrogate. NASP Subrogator, Winter 2005

Where’s The Paint? Subrogating Paint Overspray Claims (PDF)

A look at why subrogation professionals need to be diligent and aggressive in both building and pursuing subrogation rights in all claims involving paint overspray. NASP Subrogator, Spring/Summer 2005

The Great Mexican Subrogation Shootout (PDF)

A look at a memorable case MWL subrogated in Mexico. NASP Subrogator, Fall 2004

Subrogating Against God II (PDF)

A further look at property subrogation of natural catastrophes such as floods, hurricanes, etc. NASP Subrogator, Winter 2003-2004

Subrogating Against God (PDF)

A look at property subrogation of natural catastrophes such as floods, hurricanes, etc. NASP Subrogator, Fall 2002

Where’s The Beef? (PDF)

A look at subrogation involving car and truck collisions with cattle in the roadway. NASP Subrogator, Spring 2001, Issue I, Volume II

Subrogating Defective Firestone Tires (PDF)

A timely look at the Firestone defective tire litigation. NASP Subrogator, November 2000

Statutes of Repose: A New Defense To Product Liability? (PDF)

A look at defense tactics involving statutes of repose defenses to product liability cases. Trial Lawyers Forum, Volume 28, No. 2 , 1994