Published Articles

General Subrogation

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 Magazine.com, 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

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

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

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

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

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

Property Subrogation

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