In today’s digital warzone, the most dangerous threats often arrive disguised as something harmless. A CAPTCHA prompt. A fake DocuSign request. A simple email from a name you recognize. At MWL, we understand how one innocent click by a law firm without strong cybersecurity protocols can unravel millions of dollars’ worth of client data security.…
In today’s interconnected world, cyberattacks have become a pervasive threat, impacting businesses across all sectors. Insurance companies are at the forefront of mitigating these risks, often covering substantial losses resulting from data breaches, ransomware attacks, and other cyber incidents. However, the financial burden doesn’t have to end with claim payouts. Through the process of subrogation,…
In the world of subrogation, insurers typically pursue recovery by directly asserting their subrogation rights against responsible third parties. However, in the decision rendered by a federal court for the Eastern District of Wisconsin, the subrogated carrier tried something different. In Reynolds v. MJC America, Ltd., 2025 WL 659390 (E.D. Wis. Feb. 28, 2025), American…
Introduction Workers’ compensation subrogation is more than a legal doctrine; it is a fundamental component of the grand bargain struck over a century ago in our country between employers and employees. This grand bargain ensured that injured workers would receive timely benefits without the need for litigation while protecting businesses from potentially crippling lawsuits. At…
The 2023 Maui Wildfires: An Overview On August 8, 2023, multiple wildfires ignited across Maui, with the most catastrophic blaze engulfing Lahaina, a historic town on the island’s northwest coast. The fires were exacerbated by dry, gusty conditions created by a strong area of high pressure to the north and Hurricane Dora passing to the…
When homeowners hire roofing contractors to repair or replace their roofs, they expect professionalism and care. However, water damage caused by a roofer’s failure to protect a roof during inclement weather is a common and costly problem. For Insurance carriers pursuing subrogation, overcoming the defenses asserted by roofers, including claims that roofing work cannot always…
Ancient mythology and the modern practice of subrogation would seem to be strange bedfellows. Yet one story from the past has particular relevance when it comes to the never-ending toil required for aggressive and successful insurance subrogation. Sisyphus was the mythical King of Corinth in south-central Greece. He was a sly and deceitful person and…
While recent reports from the Governors Highway Safety Association (GHSA) highlight a slight decline in pedestrian deaths in early 2024, the broader trend of rising pedestrian fatalities over the past decade presents an increasing challenge for subrogation professionals. Determining liability in pedestrian accidents is often complex, as laws governing right-of-way, driver responsibility, and pedestrian duty…
The author, Franz Kafka, known for his dark situations, which many people relate to, once wrote a short story about an omnipotent power floating just beyond our reach: You go to the city to see the law. Upon arrival outside the law building, there is a guard who says “You may not pass without permission.”…
A study conducted by scientists at the University of Miami has revealed that almost three dozen high-rise condos and luxury hotels along the beach in South Florida are sinking, and insurance companies are on high alert. To be exact, thirty-five buildings, including both luxury hotels and condominiums, have sunk between one to three inches in…
Jason Wolk and Jeffrey Meyer were injured while working for J. Wolk Construction, LLC. Their workers’ compensation insurer, Grinnell Mutual, covered their claims, paying Wolk $900,969.83 and Meyer $815,829.47. The employees pursued legal action against multiple third parties, and before the case proceeded to trial, one of the defendants agreed to a $1,000,000 settlement. Each…
The use of expert witnesses has become an integral and indispensable aspect of American litigation, and it is often the side with the best expert who wins the day. The same holds true for subrogation files in which the subrogated carrier must sometimes invest in an expert to assist in meeting our burden of proof…
Recognizing, investigating, and aggressively pursuing subrogation potential is a very important part of claims and subrogation professionals’ day-to-day responsibilities. But doing so carelessly is not without its traps, pitfalls, and consequences. Claims handlers who also wear a subrogation hat must delicately balance the exigent need for an insured to get his burned dwelling or structure…
Oklahoma’s uninsured motorist (UM)/underinsured motorist (UIM) statute is found at § 3636 of the Oklahoma statutes. [1] It mandates UM coverage in Oklahoma to protect insured persons from monetary loss due to personal injury or property damage resulting from an accident caused by another who carries no liability insurance or who is otherwise underinsured. [2]…
One of the characteristics of multi-state or nationwide subrogation experienced by claims professionals, lawyers, and judges alike is the frequency with which we run into subrogation issues or questions which seemingly have no clear answers. Quite often we receive uneducated opinions, best advice, or likely answers to these issues, but there are no clear-cut case…
During most of the 20th Century, Texas boasted a workers’ compensation subrogation scheme which was in the top five most favorable for carriers. That all began to change when the state began a series of legislative changes and issued a number of case decisions began to erode the rights of a subrogation workers’ compensation carrier.…
A federal court in Maryland has asked the Maryland Supreme Court to sound off on an issue regarding the apportionment of attorneys’ fees and costs between a workers’ compensation insurance company and an injured employee, following a large third-party settlement. The facts are somewhat unusual (although they shouldn’t be) because in this case, the workers’…
Little by little, Alabama is letting out the line when it comes to who can recovery loss of use damages after an automobile has been in an accident. In addition to the other damages recoverable, loss of use (reasonable value of use or rental of a car while the owner is deprived of use of…
Every day we see evidence of the continuing evolution of subrogation law across our country. In many respects, we are still pioneers in this industry, as subrogation wasn’t pursued, respected, or sought after for many years, leaving many areas in our industry undecided by the courts and simply unknown. A good example of this is…
On July 25, 2020, a man named Wesley Little showed up at the front door of Vicki Baker, who was a long time resident of McKinney, Texas. Little had a 15 year-old girl with him when he knocked on the door. Only Vicki’s daughter, Deanna Cook, was home at the time. She recognized Little because…
On September 19, 2024, in one of the most pro-subrogation decisions in a generation, the Nevada Supreme Court has overnight turned Nevada into one of the most favorable states for workers’ compensation subrogation. With the stroke of a pen, the court has done the following: Abandoned the “Breen Formula”—which it declared was “unworkable” and “no…
It is said that good judgment comes from experience, but experience comes from bad judgment. This pithy aphorism is generally true in life but is particularly true when a company sees significantly increased workers’ compensation insurance premiums following a serious workers’ compensation claim. The same is true even if the claim was not the employer’s…
California is facing particularly severe wildfires this fall, with multiple fires raging across the state. These fires have led to widespread damage, including property loss, environmental destruction, and health hazards. On September 8, the Bridge Fire began in the Angeles National Forest. It exploded in size to over 50,000 acres, the cause of which is…
The author, Franz Kafka, known for his dark situations which many people relate to, once wrote a very short story about omnipotent power floating just beyond our reach. You go to the city to see the law. Upon arrival outside the law building, there is a guard who says “You may not pass without permission.”…
A Texas House Committee confirmed last week that a rotting and decayed utility pole that broke, causing power wires to fall on dry grass in the Texas Panhandle on February 26, sparked the Smokehouse Creek Fire, the largest and costliest wildfire in Texas history, and the largest U.S. wildfire in 2024. This confirms our initial…
In December we reported on the anti-subrogation climate in Missouri and the Court of Appeals decision in Thomas v. Ramushi, which held that, absent a “direct assignment”, an insurer has no authority to seek a property subrogation payment from the tortfeasor without the insured’s consent.[1] That decision highlighted the important distinction between a subrogation clause…
In a rare example of how strong a workers’ compensation statutory lien can be, a Pennsylvania appellate court affirmed a ruling by a Workers’ Compensation Judge (affirmed by the Workers’ Compensation Appeal Board (WCAB)) in which a workers’ compensation carrier was allowed to recover its full $45,530.48 lien out of the employee’s $675,000 third-party settlement,…
A Delaware court has thrown a small blanket of precedent over the smoldering embers of claims by some insureds with large deductibles that their insurance company is guilty of bad faith if it does not attempt to subrogate and recover the insured’s deductible. On August 2, 2020, Praveen Patel’s house located at 403 Derby Way,…
We are still years away from full implementation of true self-driving cars in the U.S., but each step we take dramatically complicates and changes the face of auto claims handling, vehicle repairs, and subrogation litigation. When catastrophic claims are paid as a result of a traffic accident resulting from a failure of an automated driving…
In one of our most widely-reprinted and widely-read articles, “Ten Subrogation Mistakes Insurance Companies Keep Making”, the number one most prevalent and most costly mistake is waiting too long to involve subrogation counsel. It sounds like an MWL marketing pitch, and of course, in many ways it is. But it is also the truth. The…
It’s the question every claims professional and trial attorney claims to know but few fully understand. In addition to paying for medical expenses, death benefits, funeral costs and/or indemnity benefits for lost wages resulting from a compensable injury, workers’ compensation insurance carriers also expend considerable dollars for case management costs, medical bill audit fees, independent…
A new Texas Court of Appeals decision has clarified the process by which a workers’ compensation carrier can settle directly with a third-party tortfeasor and thereby avoid having to reduce its lien by a pro rata share of the employee’s attorneys’ fees. Meanwhile, the process of “selling your lien” has never been less complicated and…
If you are a subrogation professional sending out demand letters and attempting to recover property damage, medical payments, or PIP benefits from a tortfeasor who is obviously at fault in an automobile collision, your worldview is one in which 50% of vehicle brakes in America are seemingly defective. It isn’t possible to go a week,…
A dwindling number of us may be old enough to recall the classic Peter Sellers comedy, “The Pink Panther Strikes Again.” In one hilarious scene, Inspector Clouseau checks into a hotel. On his way to his room, he sees a small dog lying on the ground. “Does your dog bite?,” Clouseau asks the man at…
An April 22, 2024 decision by the Colorado Supreme Court considered the confusing interplay between Colorado’s statutory Collateral Source Rule and medical malpractice actions under the Health Care Availability Act (HCAA).[1] Specifically, the Court addressed the question of whether the “contract exception” to the collateral source statute applies in a medical malpractice case where the…
A few years ago, a contractor working near MWL’s Santa Ana, California office was spraying a structure with epoxy primer, one of the hardest paints to remove. Nearby and downwind of the construction area was an auto auction facility getting ready for the weekend’s auction. The lot contained 752 new and used vehicles. Wind coming…
Oh, that it wasn’t so, but today’s world of insurance claims adjusting, subrogation, and civil litigation rewards the ability of one party to take advantage of what the other party doesn’t know. A civil trial is known as an “adversary proceeding” because it pits two or more opponents against one another with regard to a…
The American horror film “Split”, directed by M. Night Shyamalan, is a psychological thriller which centers on a bizarre antagonist with 23 separate personalities. Without spoiling the plot, suffice it to say that it focuses on the fact that there is something to the adage “mind over matter.” They say that life imitates art. If…
The law in Pennsylvania regarding the ability of a landlord’s property insurer to subrogate against a tenant whose negligence causes damage to the landlord’s building has been very slow to develop. But they are quickly making up for lost time. Until recently, Pennsylvania had only one case speaking to this issue. In 1990, the Pennsylvania…
Thin skin and subrogation do not go hand-in-hand. We are the crashers at every party and the uninvited guests that nobody wants to see show up when a personal injury suit has been filed. Trial lawyers believe we take money from the pockets of victims and defense lawyers believe that we make the cases they…
For almost five decades Texas has had a single statute of repose which imposed a ten (10) year period for claims against architects, engineers, interior designers, landscape architects, builders, and construction contractors.[1] Texas has imposed a ten-year statute of repose on suits against builders or contractors who construct or repair improvements to real property. It…
Workers’ Compensation Subrogation and Employee Leasing Companies At its core, workers’ compensation subrogation is quite simple. Employee injured while at work receives workers compensation benefits. Carrier paying benefits recovers those benefits from anyone responsible for causing the injury other than the employer. As the saying goes, however, “Progress is man’s ability to complicate the simple.”…
Claims Journal recently reported on a new Ohio State University study which examines who is at fault when cars hit pedestrians shows that vehicle/pedestrian accidents occur much more frequently in certain environments than in others. The study showed that pedestrians were much more likely to be at fault when there was a high volume of…
The wildfires in the Texas Panhandle are already the largest fire in state history, resulting in two deceased, burning more than 1,059,570 acres, countless livestock loss, and over 500 structures damaged. The fire has still not been completely contained at the time of writing this article – and the damages are expected to increase. This…
A recent 5th Circuit Court of Appeals decision interpreting Mississippi insurance law has ruled that an automobile insurance carrier can exclude diminished value claims from its underinsured motorist coverage. In Watkins v. Allstate Property & Casualty Insurance Company, Kimberly Jones (insured by Safeway Insurance Company) negligently crashed into a vehicle driven by Kenan Watkins (insured…
In Ohio, while the usual statute of limitations for both personal injury and property damage is two (2) years, § 2305.113 provides that an action for medical malpractice must in all cases be filed within four (4) years from the date that the medical negligence occurred. If the basis of the claim is discovered in…
Subrogation professionals are seeing more and more cases involving a landlord’s carrier wanting to subrogate against a negligent tenant who caused damage to the leased premises. The ability of a landlord’s property insurer to subrogate against a tenant for property damage caused by the negligence of the tenant depends on which state the loss occurs…
Louisiana, with its short one-year tort statute of limitations (in Louisiana called prescription), catches many insurance subrogation professionals unaware. Some may assume that because suit was filed by another party involved in the accident or even by their own insured, the property subrogation claim will relate back to the time of filing of the original…
The quid pro quo premise underlying the social compromise known as workers’ compensation is simple: an employee injured at work receives no-fault medical expenses and wage replacement indemnity benefits and, in exchange, the employer is given protection from employee lawsuits and a statutory right to be reimbursed from the tortfeasor who actually caused the work-related injury –…
Subrogation professionals, like lawyers, must be constantly vigilant for deadlines, statutes of limitations, statutes of repose, and notice timelines which are set forth by the laws of the 50 states. Likewise, it is important to know and understand the differences between statutes of limitations and statutes of repose. They are both subrogation-killers. Statutes of limitations…
We are all aware that Missouri’s prohibition against assignment of a cause of action for personal injuries has complicated subrogation in that state. Subrogation in personal injury cases is considered to be against public policy because it amounts to an impermissible assignment of the insured’s right to a cause of action for suffering a personal…
The insurance industry is filled with myths and urban legends that just won’t seem to go away. Red vehicles have higher insurance rates; You are more likely to have an accident close to home; It’s illegal to drive barefoot; Getting a parking ticket means your insurance rates will go up; and auto insurance follows the…
Most state workers’ compensation laws, or cases construing them, allow the employer and its carrier to waive its right to subrogate against a third party that caused or contributed to an employee’s injury. The purpose of a subrogation waiver is not well understood and is a subject of some confusion in the marketplace. Most frequently,…
Matthiesen, Wickert & Lehrer, S.C. is pleased to announce that Lee R. Wickert has become a partner with the firm. Lee is in his 6th year of practice but he is no stranger to the firm having worked for MWL since 2009, including three years as a research law clerk. Lee attended the University of Wisconsin-Milwaukee and obtained his law degree…
Pulitzer prize winning historian David McCullough once said that “Writing is thinking. To write well is to think clearly. That’s why it is so hard.” When claims adjusters, subrogation professionals, and/or subrogation lawyers document a settlement or stipulation with an insured’s or employee’s attorney regarding a subrogation interest, getting all the right words in the…
When it comes to personal transactions, the modern-day consumer would be hard pressed to remember the last time they wrote a check. In fact, for many of us, our checkbooks are likely collecting dust in some deep corner of a forgotten desk drawer, if we even have a checkbook at all. However, checks are very…
The bane of any subrogation professional’s existence is the dreaded release. It is no coincidence that when Zeus uttered the words, “Release the Kraken!” in the 1981 fantasy adventure film The Clash of the Titans, he chose the word “Release.” The meme itself connotes setting loose utter destruction on one’s enemy—a description which can be…
One of the most difficult and confusing issues to deal with in the world of homeowner’s insurance property claims is the obligation to repair or replace an insured’s damage property with “material of like kind and quality” or with “similar material.” When damage caused by fire, smoke, water, hail, or other causes results in a…
The ability of a workers’ compensation carrier to subrogate against and/or seek reimbursement from a recovery made from a third-party tortfeasor responsible for causing the employee’s work-related injuries is universally recognized across the country as a major tool for holding down workers’ compensation premiums for large and small businesses and employers. Whether or not this…
On October 16, 2023, the Arizona Supreme Court in Torres v. JAI Dining Services (Phoenix), Inc., ruled that the Arizona constitution does not protect common law dram shop actions, and thus, the legislature, by enacting a statutory dram shop claim, eliminated the then-existing common law dram shop cause of action.[1] This means that in order…
Most of us don’t give much thought to contaminated gasoline and the tremendous property damage it can cause to vehicle engines and other equipment. But when an insurance company must pay out tens of thousands of dollars as a result of tainted fuel, all thoughts must immediately turn to subrogation. One question which precedes any…
Understanding spoliation has become an increasingly integral and important aspect of effective subrogation efforts. Without the necessary evidence and investigation required for a subrogated insurance company to meet its burden of proving the origin and cause of a fire or that a product was defective, subrogation will fail. Spoliation has become one of the most…
Texas is by far the biggest producer of hay in the United States; with Missouri and Nebraska a distant second and third. Feeding livestock is the number one use of hay, as almost any animal on a farm or ranch (horses, cattle, sheep, goats, etc.) will eat hay. It is usually fed to livestock when…
For the last ten years MWL has self-published and distributed its book entitled “Where’s The Beef?: Subrogating Livestock/Vehicle Collisions in All 50 States.” Recently, the firm has partnered with its legal treatise publisher, Juris Publishers, Inc. in New York, to publish, market, and distribute the latest edition of the book. It has been retitled “Where’s…
One of the most successful weapons trial lawyers have discovered in combatting subrogation across the country has been the Made Whole Doctrine. It requires an insured to be fully compensated for damages (i.e., to be “made whole”) before the insurer is entitled to recover in subrogation from the at-fault third party tortfeasor. This “equitable” rule…
What Happened The island of Maui, Hawaii was the unfortunate victim to catastrophic wildfires on August 8, 2023. Sources and authorities say that throughout the day and night of August 8, several brush fires were ignited all over the island of Maui including the towns of Lahaina, Kula and in upcountry Maui. The climate conditions…
Most states now have mandatory car insurance laws that require all drivers to have some type of insurance. New Hampshire is the last of the 50 states which does not require mandatory automobile liability insurance. Wisconsin was second to last, but as of June 1, 2010, Wisconsin now mandates that drivers purchase auto liability insurance.…
Across the country, landlord/property owners’ insurance carriers’ efforts to subrogate against tenants who cause damage to the owners’ property has become a heavily-litigated issue—with mixed results. The ability of a landlord’s property insurer to subrogate against a tenant for property damage caused by the negligence of the tenant depends on which state the loss occurs…
In Louisiana, when a company undertakes to execute any work which is a part of its trade, business or occupation, and contracts with any subcontractor for the execution of such work, the company is entitled to the exclusive remedy protection of § 23:1032. The company will be liable to pay workers’ compensation benefits to any such…
Auto subrogation and car dealerships are no strangers to one another. Car dealerships and their insurers routinely seek to hold vehicle test drivers, customers, and other permissive users liable for physical damage to the dealers’ courtesy and rental vehicles and as well as for damages to third parties resulting from the negligent operation of dealership…
It has been seven years since we first published our rankings of the ten best and ten worst states for workers’ compensation subrogation. Since then, case decisions and legislatures have been busy trying to help trial lawyers destroy workers’ compensation subrogation liens in third-party personal injury cases. Therefore, it is time to revisit our rankings…
For years, trial lawyers have been threatening and filing class action lawsuits in multiple states in an effort to thwart their arch nemesis—subrogation. States such as Montana have gone so far as to hold that it is the burden of the subrogated insurance company to determine and prove that its insured has been fully made…
As is the case in many no-fault states, Delaware employees injured in an automobile accident in the course and scope of employment might be entitled to both workers’ compensation and PIP benefits simultaneously. The Worker’s Compensation Act requires every employer in the state, unless excluded, to provide statutory workers’ compensation benefits to an injured employee.…
Georgia has long been the bane of a subrogation professional’s existence. The State features both an anti-subrogation law and a complete compensation (“made-whole”) statute. The combination of these two laws have led many insurers to simply write off the hope of any recoveries on their subrogation claims. If you’ve given up all hope of recovering…
When an automobile is damaged in an accident and then repaired, the resale value may be less than a comparable automobile that has not been damaged. In other words, the damage results in a reduction or “diminution” in the resale value of the automobile. An insured’s claim for this reduction in value may be made…
One of the most heavily contested types of subrogation cases we encounter involves recovery of the reasonable cost of repairs performed in-house by a commercial fleet, trucking company, auto dealership, or rental car company whose vehicle has been damaged due to the negligence of a negligent third party. The liability carrier for the tortfeasor frequently…
Insurance policy deductibles and subrogation make strange bedfellows. Most property and automobile insurance policies require that the insured pay a deductible—an out-of-pocket payment the insured is required to pay toward a covered loss before the insurance company kicks in with its own claim dollars. Some policies allow the insured to select a deductible, with the…
Most insurance claims professionals understand that, as opposed to uninsured motorist (UM) coverage, which pays damages to an insured who is involved in an accident with an uninsured driver, underinsured motorist (UIM) coverage is automobile insurance coverage which protects an insured involved in an accident with a tortfeasor who doesn’t have liability limits sufficient to…
By ChatGPT (artificial intelligence chatbot) Foreward By Gary L. Wickert Artificial intelligence (AI) is intelligence—perceiving, synthesizing, and inferring information—demonstrated by computers or machines, as opposed to actual human intelligence. According to the current system of classification, there are actually four types of AI: reactive, limited memory, theory of mind, and self-aware. For many of us,…
1 Peter 1:3: “Praise be to the God and Father of our Lord Jesus Christ! In his great mercy he has given us new birth into a living hope through the resurrection of Jesus Christ from the dead.” Matthiesen, Wickert & Lehrer, S.C. would like to wish all of our clients and friends a very…
On March 23, 2023, the Florida Senate passed a sweeping tort reform bill known as HB 837. The bill was signed into law by Gov. Ron DeSantis the very next day and becomes effective immediately. Some elements of the new bill will apply to all causes of action filed on or after March 24, 2023,…
Matthew Grieder joined MWL recently as a new litigation associate with the firm’s Austin branch office, and is licensed to practice law in Texas. Matt will be handling automobile, maritime, property and casualty, and workers’ compensation subrogation cases throughout Texas and the South Central states of Oklahoma and New Mexico. Matt graduated undergraduate from the…
Automobile rentals is a $29 billion industry and constitutes a significant portion of the transport sector in America. In 2018, there were 2,212,925 rental vehicles on U.S roads. There are six million auto accidents in the U.S. every year, and rental cars are involved in a significant portion of those accidents. To make matters worse,…
MTDB Corp. v. Am. Auto Ins. Co., 2022 WL 18012348 (Ill. App. 1st Dist. 2022) Some might say that subrogation and insurance coverage make strange bedfellows. But understanding the basics of insurance coverage is integral to an aggressive and holistic approach to subrogation across all lines of insurance. Without coverage there is no claim payment;…
Trial lawyers are filing bad faith class action suits against insurance companies across the country in rapid fashion based on alleged wrongful depreciation of labor costs in their calculation of Actual Cash Value (ACV) in property loss claims. They smell blood in the water given the turmoil and lack of clear guidance from state to…
Certain 2011 to 2021 Kia and 2015 to 2021 Hyundai vehicles were designed, manufactured, and sold without an electronic immobilizer found in over 95% of other vehicles. As such, these automobiles are prone to theft. Thieves typically break a back window to avoid alarms, expose the steering column, and fit a USB-A plug into the…
According to the Governors Highway Safety Association (GHSA), each day last year, twenty people were struck and killed by cars. Nearly 8,000 pedestrians were killed by vehicles in 2021 – an increase of 11.5%. This represents both an alarming public safety trend and a growing concern for the insurance industry. A 2018 Governors Highway Safety…
Connelly v. Main St. Am. Group, 2023 WL 152540 (S.C. 2023) South Carolina’s Exclusive Remedy Rule has prevented an employee from collecting $350,000 in uninsured motorist benefits for injuries she sustained in an automobile accident she was in while a passenger in a vehicle owned and driven by a co-employee. Stephany Connelly and a co-worker…
Earlier in my career I handled a subrogation case involving a brand-new vehicle which was lightly tapped from the rear by a careless driver. The damage to the vehicle was very minimal, yet the vehicle was declared a total loss by my client because its frame had been “jiggled” and the cost to repair the…
Matthiesen, Wickert & Lehrer, S.C. is pleased to welcome Muhammad Qasim (goes by “Qasim”) as a new Associate Attorney who will be joining the subrogation litigation team in our Santa Ana, California office. Qasim brings a wealth of litigation experience to our California branch office. He began his career as a litigator and an assistant to…
MWL partner Eric J. Goelz has retired from MWL after thirty three years of practice. Eric graduated cum laude from Marquette Law School in 1989 and practiced in insurance defense litigation and subrogation in both private practice and as in house counsel. His marriage of thirty-six years has blessed him and his wife Colleen with…
Grothe v. Kushnivich, 521 P.3d 228 (Wash. App. 2022) One by one, states have begun to recognize a vehicle owner’s third-party claim for residual diminished value damage, or “stigma damage”, which is the loss of value of an automobile that remains after it is completely and professionally repaired. It is the loss of value that…
Matthiesen, Wickert & Lehrer, S.C. is pleased to announce that Stephen A. Smith has become a partner with the firm. Steve is in his 13th year of practice and joined MWL in 2015. His practice focuses on insurance litigation and subrogation, including automobile, property, and workers’ compensation, and product liability. Prior to MWL, Steve worked with…
“It’s not the size of the dog in the fight, it’s the size of the fight in the dog.” — Mark Twain One insurance company – State Farm – has referred to dog bites as a “serious public health problem.” In 2018 alone, one carrier paid $90 million in claims on roughly 3,500 dog bite incidents. According…
4.07[10] Made Whole Doctrine Until recently, the Made Whole Doctrine had not been applied outside the context of a bankruptcy proceeding in Connecticut.[1] However, the Connecticut Supreme Court has given us a clue as to how it will treat this issue in the future. It has ruled that while a right of true contractual subrogation…
A huge segment of America’s service economy involves flexible, temporary, part-time, or freelance jobs—frequently involving professional employer organizations (PEO’s) or employee leasing companies. The “gig economy” is the labor market that relies on temporary and part-time positions filled by independent contractors, leased employees, and freelancers, rather than full-time permanent employees. Threading the needle of workers’…
Amy Alexander, et al. v. Nam Duong and Sentinel Insurance Company, Case No. 120,320 (Okla. App. December 2, 2022) Oklahoma’s workers’ compensation laws have endured a long and tortured constitutional tug-of-war between trial lawyers and business advocates/subrogation professionals. In 2011, Oklahoma completely overhauled its workers’ compensation laws, entitling the new legislation the “Workers’ Compensation Code.”[1]…
What you don’t know can’t help you. That is certainly the case in Iowa when plaintiff’s attorneys claim no obligation to reimburse a carrier exists based on a general assertion that the insured was not made whole. This objection overlooks the proper application of the made-whole doctrine to specific damage types as required under Iowa…
Davis v. Adeoye, 2022 WL 16570653 (Conn. Super. 2022) For years, trial lawyers have been threatening and filing class action lawsuits in multiple states in an effort to thwart their arch nemesis—subrogation. States such as Montana have gone so far as to hold that it is the burden of the subrogated insurance company to determine…
Matthiesen, Wickert & Lehrer, S.C. is pleased to announce the election of Richard A. Schuster, Esq. and Ashton T. Kirsch, Esq., to shareholder status in the firm. The firm is excited to welcome these two extremely talented attorneys as shareholders of our firm. They have demonstrated that they have the legal skills, dedication, and work…
Matthiesen, Wickert & Lehrer, S.C. is pleased to welcome Attorney Darin G. Tabor to our California branch office. Darin began his career in the insurance industry, working with Corvel Corporation handling workers’ compensation claims. He then transitioned to the courts, fulfilling two separate clerkships for Tarrant County District Judge Melody Wilkinson in Texas and Oakland…
Hartford Underwriters Ins. Co. v. Allstate Ins. Co., 2022 WL 17491301 (Va. 2022) When two insurance companies or an insurance company and an employer (self-insured for workers’ compensation) enter into Arbitration Forum’s “Special Arbitration Agreement”, the workers’ compensation carrier may proceed in binding arbitration under Arbitration Forum’s Special Arbitration Forum to seek reimbursement and subrogation…
Insurance subrogation professionals are routinely faced with minimum limits scenarios which complicate otherwise straightforward subrogation cases. When a third-party liability carrier’s insurance limits are insufficient to pay the claims of multiple claimants, the carrier must begin to assess the hierarchy of the claimants – how to slice the insured’s pie. In order to do this,…
Sheckler v. Auto-Owners Ins. Co., 2022 WL 17245548 (Ill. 2022). The ability of a landlord’s property insurer to subrogate against a tenant for property damage caused by the negligence of the tenant varies greatly from state to state and often hinges on the specific language of the lease involved. There are generally three different approaches:…
A new 2022 report reveals a massive spike in litigation involving insurance coverage and claims and advises insurance companies to “be prepared by increasing resources both in-house and outside counsel.” The report, entitled “Insurance Litigation Report” was issued Lex Machina, Silicon Valley-based SAAS company that helps lawyers pinpoint litigation trends. It includes an analysis of…
During the brutal winter of 1620-21, Miles Standish, the English military officer hired by the Pilgrims as military advisor for Plymouth Colony and one of the Mayflower passengers, played a leading role in the administration and defense of the colony. His wife, Rose, suffered from sickness and fever throughout most of the winter, and when…
One day last month our firm received three separate, unrelated subrogation claim files involving serious personal injury, property damage, and a death resulting from tractor-trailers whose drivers had lost control after serving to avoid colliding with a deer on the highway. In two of the losses, the 18-wheelers overturned and were shortly thereafter struck by…
In addition to paying for medical expenses, death benefits, funeral costs and/or indemnity benefits for lost wages resulting from a compensable injury, workers’ compensation insurance carriers also expend considerable dollars for case management costs, medical bill audit fees, independent medical exam (IME) fees, expert fees, functional capacity evaluation charges, rehabilitation benefits, physician advisor fees, behavioral…
They refer to it simply as “The Storms of 98.” Fierce rains and high tides combined to make San Francisquito Creek overflow its banks at 1 a.m., inundating houses, cars and streets. Firefighters used boats to rescue people trapped in their homes and school buses took evacuees to the Cubberley Community Center for shelter in…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to welcome Brianna Law, a new litigation associate, to the firm’s New Orleans, Louisiana branch office. Brianna is licensed to practice law in Louisiana. Her practice focuses on handling automobile, maritime, property and casualty, and workers’ compensation subrogation cases throughout the country, out of the New Orleans…
The devastation of Hurricane Ian reminds us that the opportunity for property subrogation success is often disguised as an Act of God. The claims history of most domestic insurance carriers is littered with billion dollar claims as a result of catastrophic losses caused by natural disasters. When God sends a hurricane, tornado, flood, or naturally…
We are in the early stages of sifting through the debris of Hurricane Ian and calculating the financial and human toll it took after coming ashore in Southwest Florida with 150 mph winds and 20 inches of rain. The insured losses expected to flow from this natural disaster are still being calculated, but estimates range…
As Hurricane Ian fades into the Atlantic and insurance professionals are left to sort out the devastation in its wake, another storm is rising, and it is not the type which causes damage to homes and vehicles. It causes damage of a much more insidious nature. Following a storm or other natural disaster, canvassers hired…
Until recently, Virginia courts had not applied or even discussed at length the equitable Made Whole Doctrine. Its application had been rejected in a 1998 unreported state circuit court ruling involving a self-funded medical reimbursement plan.[1] In the case of P.R.C., Inc. v. Jones Welding & Repair, Inc., Judge Jane Roush wrote: O’Bryan’s reliance on…
Brice K. Nakamura is a Senior Associate Attorney in our California branch office. Brice started his legal profession in the Taxation field where he defended multi-million-dollar companies in California against aggressive tax collection procedures. He then transitioned to the personal injury field, where he gained experience litigating cases involving premises liability, automobile accidents, and real…
In addition to paying for medical expenses, death benefits, funeral costs and/or indemnity benefits for lost wages resulting from a compensable injury, workers’ compensation insurance carriers also expend considerable dollars for case management costs, medical bill audit fees, independent medical exam (IME) fees, expert fees, functional capacity evaluation charges, rehabilitation benefits, physician advisor fees, behavioral…
Flooding is the number one natural peril in the U.S.—even more devastating than wildfires and storms. Since 2011, there have been over $100 billion in insured losses from flood events around the globe. Over the past three decades, Matthiesen, Wickert & Lehrer, S.C. has been on the forefront of subrogating catastrophic flooding and other natural…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to welcome Brice V. Dodson, a new litigation associate, to the firm’s Austin, Texas branch office. Brice graduated from the Texas A & M University in College Station, Texas, and received his law degree from the University of Texas School of Law in Austin, where he served…
On Friday, August 19, a huge fire ripped through the historic and family-owned Mattapoisett Boatyard in southern Massachusetts, a short distance south of MWL’s Boston office. The fire destroyed five buildings, three dozen cars, and countless expensive boats. Continuous explosions and fuel from the boats left the property a complete loss, making subrogation efforts difficult…
Safeco Ins. Co. of Illinois v. LSP Products Group, Inc., 12022 WL 3101577 (D. Idaho 2022) Chief District Judge David C. Nye boasts an interesting and unique political distinction associated with his nomination and appointment to the federal bench in Idaho—Nye was sworn in as a U.S. District Judge for the District of Idaho on…
New Law Mandates That Insurance Companies Report All Dog Bite Claims To The State. It’s a great trivia question. Which state has the most dog bite claims? The answer probably won’t surprise you—California, with 2,103 insurance claims in 2020, followed by Florida, Texas, New York, Pennsylvania, Ohio, and Illinois. What may surprise you, however, is…
New York Botanical Garden v. Allied World Assurance Co. (U.S.) Inc., 16127, 2022 WL 2124845 (N.Y. App. Div. 1st Dept. June 14, 2022). Cajun Conti, LLC v. Certain Underwriters at Lloyd’s, London, 2021-CA-0343, 2022 WL 2154863 (La. App. 4th Cir. June 15, 2022). There is a hole in the dam. Prior to June 14, every one…
Pulitzer prize winning historian David McCullough once said that “Writing is thinking. To write well is to think clearly. That’s why it is so hard.” When claims adjusters, subrogation professionals, and/or subrogation lawyers document a settlement or stipulation with an insured’s or employee’s attorney regarding a subrogation interest, getting all the right words in the…
Calling all health subrogation professionals!! This is the sixth in a series of complimentary webinars created just for you by Ryan Woody, Nancy Case, and Catherine Dowie. To learn more about this webinar or to register for it, visit the below link. https://attendee.gotowebinar.com/register/7416755009721394699
A new analysis of pedestrian safety by the Governors Highway Safety Association (GHSA) reveals that pedestrian fatalities are sharply on the rise. In fact, the report reveals the astonishing news that an average of nearly twenty-two (22) pedestrians per day were struck and killed by automobiles in the U.S. in 2020 and that number is…
Each year, water damage and freezing pipes cost insurers $15-$20 billion and result in claims from approximately 1 in 50 insured homes. While many cases of water damage are caused by a lack of maintenance or normal wear and tear, in the winter months, claims related to water damage and freezing pipes are extremely common.…
On June 15, Matthiesen, Wickert & Lehrer, S.C. (MWL) announced the unveiling of its new website – a completely reworked, state-of-the-art, interactive, and encyclopedic subrogation tool which promises to make your subrogation responsibilities even easier and more effective. It has been two years in the making, and we are proud of the finished product –…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to welcome Ana Zabalgoitia, a new senior litigation associate, to the firm’s Austin branch office. Ana graduated from the University of Texas at Austin and graduated from St. Mary’s University School of Law in San Antonio. She is licensed in Texas and New Mexico and has been…
Most subrogation claims are small. If your subrogation law firm or recovery vendor does not handle small claims, you shouldn’t use them. Using HO-3 homeowner’s policy claims as an example, the average property damage claim payment was $8,787 according to data from the Insurance Research Council. In 2020, the average private passenger auto collision claim…
HB 2064 Takes Effect June 9, 2022. For many years a landlord’s property insurer’s ability to subrogate for property damage against a negligent tenant was governed by a handful of case decisions. A landlord was frequently presumed to carry insurance for the tenant’s benefit, making the tenant an implied co-insured and, therefore, immune from a…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to welcome Zeeshan Iqbal, a new litigation associate, to the firm’s Santa Ana, California branch office. Zeeshan (who also goes by “Z”), graduated with a finance degree from California State Polytechnic University in Pomona, California. He went on to attend and graduate law school at Baylor Law…
Subrogation professionals might read the title to this article and wonder what subrogation and the confounding labyrinth of insurance coverage might have in common. After all, aren’t we all comfortably nestled in the subrogation world so that we don’t have to wade through endless pages of small font, state-specific endorsements, and baffling insurance policy lexicon?…
Stowers v. Georgia Pacific, LLC, 2022 WL 903486 (Va. App. 2022). Trial lawyers in Virginia have been trying for decades to convince that state’s courts to rule that a workers’ compensation carrier is not subrogated to non-economic damages awarded or recovered in a third-party tort action. On March 29, 2022, the latest such effort was…
MWL sees more than its fair share of subrogation cases involving work-related injuries caused by shifting and falling cargo. If a truck’s cargo is not properly loaded or secured, the resulting workers’ compensation claims can be significant. We routinely see cases in which shifting cargo results in a trailer tipping over and a resulting tip…
Turner v. Pleasant Acres LLC, 2022 WL 815834 (Kan. App. 2022). On the same day as the Alabama Court of Appeals issued its ruling in O’Brien v. Mobile Public Library, attempting to curtail the rights of a workers’ compensation carrier against UM/UIM benefits, the Kansas Court of Appeals was doing exactly the opposite. For years,…
Ignores Supreme Court Decision Hinting Otherwise O’Brien v. Mobile Pub. Lib., 2022 WL 829245 (Ala. App. 2022). Workers’ compensation subrogation remains an intense struggle between the powers of good and evil; with insurance carriers attempting to preserve their rights to seek reimbursement of claim payments made necessary through the negligent acts of tortfeasors and the…
Matthiesen, Wickert & Lehrer, S.C. would like to wish all of our clients and friends a very blessed Easter. While Easter means different things to different people, we celebrate the Good News which Easter represents. It is the fulfillment of the greatest Promise ever made – the celebration of the resurrection of Jesus Christ, the…
Subrogation Shortcuts Lead To Drastically Smaller Recoveries. Litigation is rarely cheap, but it is often necessary. Nowhere is this truer than in the area of insurance subrogation, where those who resist paying subrogation claims assume that insurance companies are loath to pull the trigger and file suit and will, therefore, never pay full value on…
We are pleased to welcome Frank G. Mackoul II, a new senior litigation counsel, to the firm’s Jacksonville, Florida branch office. Frank brings a wealth of litigation and trial experience to MWL as well as a rather unique and useful background. He received both his undergraduate degree and his law degree from the University of…
Loftus v. Katrina Decker: Appeal of Eastern Alliance Ins. Group, 2022 WL 711142 (Pa. Super. 2022) A March 10, 2022, Pennsylvania Superior Court appellate decision underscores why the cost of workers’ compensation insurance for small businesses is the highest in the northeast United States. In Loftus v. Decker, the workers’ compensation carrier (Eastern Alliance) paid…
Moranz v. Harbor Mall, LLC, 502 P.3d 488 (Haw. 2022) Workers’ compensation carriers doing business in Hawai’i held their collective breathe for 2021 waiting on the Supreme Court to decide whether it would incorporate the common law Made Whole Doctrine to workers’ compensation liens. The case, Moranz v. Harbor Mall, LLC had been silently before…
MWL’s Hartford, New Orleans, Austin, Los Angeles, Jacksonville, and Boston branch offices donated to a Ukraine Supply Drive sponsored by Helgesen Industries. Helgesen, with its US corporate headquarters located in Hartford, Wisconsin employs 30 Ukrainians at its Bydgoszcz, Poland manufacturing facility. Many of its employees have left to fight for their country. Ukraine is in…
Ten Questions You Should Ask Your Subrogation Firms and Vendors What do you really know about the strengths and weaknesses of the cybersecurity measures taken by the subrogation counsel and recovery vendors you engage to assist with subrogation recoveries? In April 2021, Yahoo entered into a $117.5 million settlement in a proposed class action suit…
Thomas Fuller once said, “All doors open to courtesy.” It appears that this may now include the courthouse door. Heavy traffic is moving along smoothly 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…
Insurance companies, third-party adjusting companies, and subrogation vendors are increasingly undertaking subrogation investigation at an early stage of a claim’s life. Understanding that early recognition and action on third-party recovery potential is often won or lost in the first few days following an insurance claim or loss, companies are learning to obtain and retain key…
At 10:30 a.m. on the morning of Thursday, December 30, 2021, two separate wildfires broke out in Boulder County, Colorado near the towns of Superior and Lafayette. One of them—known as the Middle Fork Fire—was contained later that day and caused no property damage. Unfortunately, the other—known as the Marshall Fire—damaged over 6,000 acres, resulted…
Boston Branch Office Opened January 1, 2022 Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is proud to announce the opening of its new subrogation branch office in Boston, Massachusetts. For years, MWL has represented workers’ compensation carriers, auto carriers, self-insured companies, third-party adjusting companies, and subrogation vendors throughout the New England area. The increased need for…
New Jersey is a confusing state when it comes to automobile insurance and PIP benefits. Every owner or registered owner of an automobile registered or principally garaged in New Jersey must have automobile liability insurance coverage insuring against loss resulting from liability for bodily injury, death, and property damage sustained by any person arising out…
When an automobile is damaged in an accident and then repaired, the resale value may be less than a comparable automobile that has not been damaged. In other words, the damage results in a reduction or “diminution” in the resale value of the automobile. An insured’s claim for this reduction in value may be made…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to welcome a new litigation associate, Sarah E. Byrom, to the firm’s Austin, Texas branch office. Sarah began her career as an attorney within the Travis County District Attorney’s office in Austin. Sarah attended undergraduate school at the University of Texas at Austin and went on to…
It’s happened at least once to every subrogation professional. A significant claim file involving an auto accident in which liability appears to be a lock, suddenly goes into a tailspin when the other side denies the claim because the tortfeasor suffered a heart attack or blacked out as a result of some other sudden medical…
Matthiesen, Wickert & Lehrer would like to thank our clients and local counsel for a wonderful year and wish you all a Merry Christmas, Happy Hanukkah, and a blessed Holiday Season. Regardless of what Christmas means to you, we hope your Christmas is full of holiday cheer shared with family and friends. For us at…
For the 9th year, MWL’s Hartford office donated toys to the Gingerbread House and Youth and Family Project Toy Drive, which benefits children of need in Washington and Waukesha counties in Wisconsin. We believe every child should share in the magic of the holidays! Thank you to Lisa Peters and her team of volunteers who…
Wilkie v. Hartford Underwriters Ins. Co., 494 P.3d 892 (Mont. 2021). A brand-new Montana Supreme Court decision has sounded off—sort of—in the nationwide debate over whether a liability insurer has a duty to provide liability policy limits to a third-party claimant when liability is reasonably clear. In particular, the new decision says that a pre-suit failure…
Imagine beginning your day with a cup of coffee in the car on the way to work, watching the morning news from a holographic projection on the windshield while making notes in preparation for a 9:00 a.m. meeting. All this while your car follows a preset route, automatically changes lanes to avoid slower vehicles, after…
According to Arbitration Forums, Inc.’s website, the 5,200 members who subscribe to Arbitration Forums file over 949,000 disputes and nearly 1.7 million subrogation demands worth more than $13.9 billion in claims annually. Most of the insurance companies in the U.S. are members of Arbitration Forums under one or more of the programs offered by Arbitration…
The Washington Court of Appeals decision in Kosovan v. Omni Insurance Company, 2021 WL 4530640 (Wash. App. 2021), holds that a bad faith claim and a claim for violation of the Consumer Protection Act are both warranted when the PIP carrier attempts to subrogate its PIP payment before the insured is made whole. This case…
Ranking natural disasters tends to be somewhat arbitrary. Whether or not a storm which kills three people is worse than one which causes $1 billion in damages is perhaps something that should be left to philosophers and theologians. Ranking the “deadliest” natural disasters would undoubtedly result in a slightly different list. However, in the context…
During the brutal winter of 1620-21, Miles Standish, the English military officer hired by the Pilgrims as military advisor for Plymouth Colony and one of the Mayflower passengers, played a leading role in the administration and defense of the colony. His wife, Rose, suffered from sickness and fever throughout most of the winter, and when…
The claims history of most domestic insurance carriers is littered with billion dollar claims as a result of catastrophic losses caused by natural disasters. When God sends a hurricane, tornado, flood, or naturally occurring fire, the resulting losses can be enough to put many insurance companies into receivership. With no third parties or obvious subrogation…
Matthiesen, Wickert & Lehrer (MWL) takes pride in our efforts to constantly innovate and use creative legal theories to facilitate recoveries for our clients. Our firm has been actively involved in the pursuit of investigation and litigation of claims against oil/gas fracking companies related to their causing earthquake related damages which have historically gone unrecognized…
Wildfires are a natural part of California’s landscape, but they have become larger and more damaging recently. A recent study by the University of Washington and UC-Santa Barbara looked at the long-term future of wildfires and reveals that a buildup of fuels in conjunction with severe drought conditions suggest that we should brace ourselves for…
Successful subrogation against power companies is not a given. In determining whether the Electric Reliability Council of Texas (ERCOT) may be sued for its clear negligence in failing to properly winterize power production facilities and the power grid that it runs in Texas, the issue is currently in limbo. The Texas Supreme Court is currently…
A favorite quote of mine from the 2001 Jerry Zucker movie “Rat Race” goes like this: “Good things take time; but great things happen all at once.” Most of the time, laws change at a glacial pace. Where there is a provision of law that most people believe should be changed, it usually takes years…
Moreci v. Scaffold Solutions, Inc., 2021 WL 4397397 (Calif. App. 2021). A valiant effort by a California workers’ compensation carrier to make it more difficult for an employee to argue employer fault and settle around a workers’ compensation carrier’s statutory lien and right of reimbursement fell on deaf ears recently, when the California Court of…
Secura Sup. Ins. Co. v. Est. of Huck, 2021 WL 4449249 (Wis. App. 2021). A new Wisconsin Court of Appeals decision has ruled that an uninsured/underinsured (UM/UIM) automobile insurance carrier cannot reduce UM/UIM payments to its insured by the amount of workers’ compensation benefits the insured received, if the insured had to reimburse those benefits…
Recovery of Case Management Costs, Medical Bill Audit fees, Rehabilitation Benefits, Utilization Review Costs, IME’s, Nurse Case Worker Fees, Attorneys’ Fees, and Other “Allocated” Loss Adjustment Expenses. It’s the question every claims professional and trial attorney claims to know but few fully understand. In addition to paying for medical expenses, death benefits, funeral costs and/or…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to welcome Griffin S. Gross as a litigation associate in our Hartford, Wisconsin office. Griffin will be handling workers’ compensation, property, and automobile insurance subrogation cases. Griffin graduated from Marquette University in Milwaukee, Wisconsin, where he received a B.S. in Accounting and received his law degree from…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to welcome Constance A. Smith as a litigation associate in our Santa Ana, California branch office. Constance’s practice will focus on all lines of subrogation with an emphasis on medical malpractice. Constance boasts an undergraduate degree from the University of Florida in Gainesville, Florida, where she received…
In 1992, the National Fire Protection Association created a set of investigative guidelines that was published as “NFPA 921: Guide for Fire and Explosive Investigations.” The guide is widely used by both public and private fire investigators. It describes in detail the scientific method and how to specifically apply the method in the context of…
Moranz v. Harbor Mall, LLC, 477 P.3d 179 (Haw. App. 2020), cert. granted, SCWC-17-0000006, 2021 WL 1924134 (Haw. May 13, 2021). We are at the precipice of a potential upheaval in workers’ compensation recovery rights in the Aloha State. The Hawaii Supreme Court is about to decide whether equitable considerations and defenses to subrogation—such as…
New Trend Poses Threat In Subrogation Trials. Effective January 1, 2022, Arizona will become the first state to eliminate the use of peremptory challenges in jury selection in both criminal and civil trials—including the trial of subrogation cases. It isn’t news to the insurance industry that many (if not most) people harbor certain resentments against insurance…
Our NOLA office is without power and MWL’s attorneys and staff are safe and working remotely while power is restored and damage repaired. They are responding to emails and will receive voicemails. The hurricane has not slowed us down. After all, this isn’t our first rodeo. This is a picture of MWL’s Partner Jim Busenlener,…
We have recently seen an uptick in cases where a tree has fallen on to a neighbor’s house, with calamitous results. Hurricane Ida will likely only increase such claims. As the first-party claim by the homeowner is processed, subrogation professionals are usually involved to determine if the owner of the tree was at fault and…
Picture this. You build your dream home, or you add a new room onto your house. The first time it rains, you end up with a leaky roof, damaged walls, water on your floors, and your belongings require cleaning or replacement. If your loss occurred in Texas, and you wish to seek recovery, you will…
The ability of a landlord’s property insurer to subrogate against a tenant for property damage caused by the negligence of the tenant depends on which state the loss occurs in and the nature and language of the lease involved. There are generally three different approaches: A minority of courts hold that, absent a clear contractual…
Join our team! MWL is a growing national subrogation and litigation firm with offices in Hartford, WI; New Orleans, LA; Santa Ana, CA; Austin, TX; and Jacksonville, FL. You can check out our current openings on Indeed here: Litigation Attorney (Hartford, WI) – https://lnkd.in/dyyc7pMV Litigation Attorney (Santa Ana, CA) – https://lnkd.in/dpdUb-xi Litigation Attorney (Austin, TX) –…
Presented By: Society of Chartered Property and Casualty Underwriters (CPCU) MWL Speakers: Gary Wickert, Mark Solomon, Ashton Kirsch, and Elizabeth Hernandez This webinar explores the many avenues of potential recovery from catastrophic events when negligence exacerbates or increases the damages. Revealing subrogation potential and how to properly and effectively recognize, investigate, and cost-effectively pursue recovery…
A tragic, but all-too-frequent claims handling mistake in Oregon is the inadvertent waiver of a large workers’ compensation lien when the underlying claim is settled through a Claim Disposition Agreement (CDA). On an accepted workers’ compensation claim, the employee and carrier can enter into a CDA through which, in return for an agreed amount paid…
Court-ordered restitution to be paid by a criminal to a subrogated insurance company has become a major source of revenue for carriers in the last couple of years. Restitution is the recovery from an economic loss suffered as the result of the commission of a crime. An often-overlooked area of recovery for subrogated carriers is…
Moore v. Intuitive Surgical, Inc., 995 F.3d 839 (11th Cir. 2021). The use of expert witnesses has become an integral and indispensable aspect of American litigation, and it is often the side with the best expert who wins the day. The use of science in the courtroom to advise judges and juries on technical and…
There are 12 states in America which have no-fault insurance laws: Florida, Michigan, New Jersey, New York, Pennsylvania, Hawaii, Kentucky, Massachusetts, Minnesota, North Dakota and Utah. Florida’s status as a no-fault state was about to come to a ceremonial end after the legislature passed Senate Bill 54, which effectively eliminates Florida’s no-fault system and requires…
There are over a dozen people dead and 147 others remain unaccounted for. It is a human tragedy of unspeakable proportion and our prayers go out to all the families whose lives have been shattered by this tragic event. In many ways, nothing matters more than those families. Still, the collapse of the Champlain Towers…
Successful Subrogation of Small Auto Claims Auto insurance subrogation is a game of numbers. How much was paid on the claim? How much can be recovered? How much will it cost to recover it? How much of the insured’s deductible must be reimbursed? How much will you be charged by subrogation counsel? How much will…
A new ruling from the Florida Supreme Court may shed some light into ability of a workers’ compensation carrier to seek reimbursement from an employee’s legal malpractice claim against his or her personal injury attorney. In a case that had been pending for almost two years, the Florida Supreme Court has ruled that a professional…
When one insurance company subrogates against another insurance company and both are members of intercompany arbitration, arbitration is mandatory. It is the type of damages sought that determines whether arbitration is compulsory, not the type of coverage afforded by the Respondent. The type of liability coverage afforded by the Respondent is irrelevant. For example, when…
Understanding the nuances of the somewhat complicated and confusing subrogation law in California is instrumental in formulating the right decision when it comes to protecting your workers’ compensation subrogation interests. California workers’ compensation subrogation requires both an in-depth knowledge of the law and the ability to play poker. California is perhaps the most confusing state…
In the 2003 Miramax comedy Duplex, Ben Stiller and Drew Barrymore are Brooklyn landlords to a pesky, rent‑controlled tenant named Mrs. Connelly, played by Eileen Essell. Efforts to get rid of Connelly fail and the tenant’s careless actions cause a fire which nearly destroys the entire building. The fact that Ben Stiller’s insurance company had…
Employers Fight Losing Battle Against Tortfeasors Who Cause Premium Increases Workers’ compensation insurance premiums seem to know only one direction – up. On average, premiums rise approximately 5% annually; more, if an insured has experienced significant losses. For many corporate risk managers and claims professionals, the concepts of underwriting and experience ratings remain a clouded…
Katherine A. Sandoval will be presenting a MWL webinar on Advanced Concepts of California Workers’ Compensation Subrogation on May 11, 2021 from 11:00 to 12:00 p.m. (CDT). There are very few areas in which the law of each individual state vary more and are applied as differently, than in the area of workers’ compensation subrogation. While…
Understanding the Difference Between Total Loss and Salvage Vehicles Nowhere is the difference between “knowing” something and “understanding” something more evident than when it comes to the relationship between “totaling a vehicle” for insurance purposes and the concept of salvage vehicles under state law. Everybody knows what it means to “total” a vehicle. But very…
With exceptions not relevant here, the omnibus statute, Wis. Stat. § 632.32, requires every motor vehicle insurance policy issued to an owner to provide that: (a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use…
You might ask what Vice-President Kamala Harris was best known for prior to becoming the first female vice-president in U.S. history. One piece of notoriety was, as Attorney General of the State of California, she oversaw the prosecution of Wells Fargo & Company, the American multinational bank and financial services company for violation of §§…
Matthiesen, Wickert & Lehrer, S.C. would like to wish all of our clients and friends a very blessed Easter. While Easter means different things to different people, we celebrate the Good News which Easter represents. It is the fulfillment of the greatest Promise ever made – the celebration of the resurrection of Jesus Christ, the…
Health insurance subrogation involves much more than simply making demands on negligent tortfeasors. Coordination of Benefits (COB) is a subset of health Plan subrogation. It primarily concerns itself with situations where two different health Plans, or a health Plan and a no-fault automobile carrier, cover the same person or loss. Obviously, with two sources of…
Ancient mythology and the modern practice of subrogation would seem to be strange bedfellows. Yet one story from the past has particular relevance when it comes to the never-ending toil required for aggressive and successful insurance subrogation. Sisyphus was the mythical King of Corinth in south-central Greece. He was a sly and deceitful person and…
“Is the Juice Worth The (Florida Orange) Squeeze?” Carriers and adjusters are all too familiar with the “Judgment Proof Uninsured At-Fault Motorist.” Unless your insured happened to be driving in the Tampa area and was t-boned by Tom Brady, the same day his automobile coverage lapsed, the question always becomes “Is it worth pursuing subrogation…
Katherine A. Sandoval will be presenting a MWL webinar on Introduction to California Workers’ Compensation Subrogation on April 14, 2021 from 11:00 to 12:30 p.m. (CDT). There are very few areas in which the law of each individual state vary more and are applied as differently, than in the area of workers’ compensation subrogation. While…
Successful subrogation against power companies is not a given. In determining whether the Electric Reliability Council of Texas (ERCOT) may be sued for its clear negligence in failing to properly winterize power production facilities and the power grid that it runs in Texas, the issue is currently in limbo. The Texas Supreme Court is currently…
Although I am a native Texan, I grew up in Wisconsin. Therefore, I am no stranger to cold weather or the devastating effects it can have on people and property. When I moved back to Texas two years ago to open MWL’s Austin office, I assumed I was saying goodbye to cold weather forever. I…
Injury and workers’ compensation cases involving slips and falls on snow and ice during winter in America’s northern states, and southern states this year, continue to be a perplexing subrogation puzzle for insurance claims and subrogation professionals. During the winter months, our office sees a flood of cases involving slips and falls on ice, snow,…
There is a pandemic afoot that may rival COVID-19 in the amount of destruction it leaves in its wake. Nearly one U.S. driver in eight is speeding around on American roads and highways without any liability insurance. Even though every state except New Hampshire mandates purchasing liability insurance as a condition for driving, nearly 13%…
Ashton Kirsch will be presenting a complimentary one-hour live webinar on Subrogating Data Breaches, Cyber Attacks, and Other Tech Losses on February 10, 2021 at 10:00 – 11:00 a.m. (Central). This webinar will cover the basics of subrogating data breaches, cyber attacks, and other tech losses and provide an introductory analysis of how these cases…
Workers’ compensation subrogation in Alabama isn’t as clear as it might otherwise appear—especially when an employee dies. Alabama’s Survival Statute, § 6-5-462, did not change the common law rule that a cause of action in tort does not survive in favor of the personal representative of the deceased when an employee dies.[1] Therefore, the general…
The Delaware Supreme Court recently affirmed a ruling which constitutes a potentially very dangerous and confusing opinion. Some might read the decision in ACW Corporation v. Maxwell, 2020 WL 678778 (Del. 2020) as a major departure from both the Delaware workers’ compensation subrogation statute and well-established subrogation law, interpreting it as declaring that lump-sum workers’…
An obscure and unpublished circuit court order from Buckingham County, Virginia, is being circulated by trial lawyers across the Old Dominion State for the proposition that a workers’ comp carrier is not entitled to subrogation for or reimbursement of any amounts it “voluntarily” pays as compensation pursuant to a lump-sum settlement of the workers’ comp…
Nothing in life is free. The common saying is especially true for medical services. Most states provide hospitals with unique statutory ways of ensuring that they are reimbursed for the services they provide—especially in the case of patients without health insurance. In general, public policy dictates that this medical care is important to our overall…
Matthiesen, Wickert & Lehrer would like to thank our clients and local counsel for a wonderful year and wish you all a Merry Christmas, Happy Hanukkah, and a blessed Holiday Season. Regardless of what Christmas means to you, we hope your Christmas is full of holiday cheer shared with family and friends. For us at…
“Mr. Sherlock Holmes – You could not possibly have come at a better time!” the claims adjuster exclaimed. “This vehicle accident is a typical ‘he said, she said’ situation. Both drivers claim to have had the green light and there appears to be no way to prove which driver was at fault – it is…
During the brutal winter of 1620-21, Miles Standish, the English military officer hired by the Pilgrims as military advisor for Plymouth Colony and one of the Mayflower passengers, played a leading role in the administration and defense of the colony. His wife, Rose, suffered from sickness and fever throughout most of the winter, and when…
The bane of any subrogation professional’s existence is the dreaded release. It is no coincidence that when Zeus uttered the words, “Release the Kraken!” in the 1981 fantasy adventure film The Clash of the Titans, he chose the word “Release.” The meme itself connotes setting loose utter destruction on one’s enemy—a description which can be…
In the continuing struggle between recovery of medical expenses billed vs. recovery of discounted medical expenses paid by insurers, an Arizona federal court has sounded off on the duty and obligation of a Med Pay carrier with respect to paying its insured for medical bills. In Jimenez v. Progressive Preferred Ins. Co., 2020 WL 2037113…
Congress enacted the Longshore and Harbor Workers’ Compensation Act (LHWCA) to provide workers’ compensation to specified employees of private maritime employers. 33 U.S.C. §§ 901-950. The Office of Workers’ Compensation Programs administers this Act, just as it does the Federal Employment Compensation Act (FECA). 5 U.S.C.S. §§ 8101-8193. The Defense Base Act (DBA) is an…
Subrogation professionals must be aware that Florida’s collateral source statute contains a trap for the unwary. Under F.S.A. § 768.76 (6), if a provider of collateral source benefits (e.g., Med Pay or health insurance benefits) does not respond to the insured’s request for a statement asserting the subrogated lien amount within thirty (30) days, the…
Let’s just say it. Florida PIP subrogation is a pain in the butt. The state was almost out of the weeds in 2007 when its no-fault laws automatically sunsetted; but the legislature passed a new no-fault law which took effect in 2008. PIP coverage is required for all “motor vehicles” registered and licensed in Florida…
Florida property subrogation is big business. It has the third-most automobiles on the road, behind California and Texas. It has the most condominium units of any state—by a country mile. According to the Insurance Information Institute, it is second only to California with $37 billion in property and casualty losses each year. It is also…
In 2014, Florida surpassed New York becoming the third-most-populous state in the nation, and as of last year has an annual $1 trillion Gross Domestic Product (GDP) making it the 17th largest economy in the world. What happens in the Sunshine State is emulated elsewhere, and auto insurance is no exception. For that reason, all…
Jacksonville, Florida Office Opens October 12, 2020. MWL is proud to announce the opening of its new Jacksonville, Florida subrogation law office. For years, MWL has represented workers’ comp carriers, auto carriers, self-insured companies, third-party adjusting companies, and subrogation vendors throughout the Sunshine State. MWL has enjoyed a subrogation partnership with the City of Jacksonville…
Spoliation has become a growing problem in the world of insurance subrogation. Far too often, claims representatives or subrogation professionals fail to secure defective products or other evidence important to a future subrogation claim. In far too many cases, the problem isn’t one of apathy or irresponsibility. It isn’t a matter of claims personnel not…
A storm is rising, and it is not the type which causes damage to homes and vehicles. It causes damage of a much more insidious nature. Following a storm or other natural disaster, canvassers hired by the “hail cartel”—lawyers or opportunistic general contractors—can be found blanketing a neighborhood and knocking on doors. “I’m here to…
When it comes to the apparent evils of workers’ compensation subrogation, the state of Arkansas truly believes that all an injured employee ever wants is a fair advantage. In Liberty Mutual Ins. Co. v. Youngblood, 2020 WL 5542443 (Ark. App. 2020), it was argued that § 11-9-715 does not allow attorneys’ fees to be awarded…
The vagaries and complexity of nationwide subrogation have, for many lawyers and insurance professionals, made keeping current with changing subrogation law in all fifty states an arduous and laborious task. It is the goal of Matthiesen, Wickert & Lehrer, S.C. (MWL), through our newsletters, website blog, subrogation webinars, and social media pages, to assist in…
Workers’ compensation subrogation has another growing adversary—one that can slip in during the cover of night, gutting subrogation, and reimbursement rights, even after an insurance company or third-party administrator has spent thousands of dollars in recovery efforts. It is known as an OCIP, CCIP, or CIP, acronyms which spell trouble for workers’ compensation carriers which…
The quid pro quo premise underlying the social compromise known as workers’ compensation is simple: an employee injured at work receives no-fault medical expenses and wage replacement indemnity benefits and, in exchange, the employer is given protection from employee lawsuits and a statutory right to be reimbursed from the tortfeasor who actually caused the work-related…
Kansas Decision Introduces Concept of “Statutory Deficit”. The Kansas Court of Appeals is holding class on why it is important to have subrogation counsel in workers’ compensation subrogation third-party cases – even in states which are favorable to carriers. In the 2020 case of Hawkins v. Southwest Kansas Co-op Service, 2020 WL 1649867 (Kan. App.…
New York’s anti-subrogation rule (“ASR”) is found in common law and is not statutorily based. The anti-subrogation rule is a common-law doctrine crafted by the New York Court of Appeals “both to prevent the insurer from passing the incidence of loss to its own insured and to guard against the potential for conflict of interest…
Good first-party claims practice requires prompt repair of damaged vehicles. Obviously, the time it takes to repair a damaged vehicle depends on the complexity of the claim, the nature and extent of the damages, and the availability of quality replacement parts. An insured will usually be contacted by their auto carrier within a couple of…
In its widest sense, “no-fault insurance” is a term used to describe any auto insurance coverage under which policyholders are paid for personal injuries and property damage they sustain in accidents through their own insurance company, regardless of fault. In many ways it is like first-party coverage. However, the term “no-fault” is most commonly used…
Attorneys Stephen Smith and Jacob Simon will be presenting a complimentary one-hour live webinar on A Riddle, Wrapped in a Mystery, Inside an Enigma: Changes to Michigan’s No-Fault Scheme on July 28, 2020 at 10:00-11:00 a.m. (Central). The Michigan Legislature passed no-fault auto insurance laws in 1973 and has been holding on to this dysfunctional…
City of Asbury Park v. Star Insurance Company, 2020 WL 3493526 (N.J. 2020). Large deductible workers’ compensation programs and policies with large self-insured retentions (SIR) were first introduced to the American insurance industry in the late 1980s with limited deductible options for medical and death benefits. Over time they have grown to become a key…
New Jersey Transit Corp. v. Sanchez, 2020 WL 2374054 (N.J. 2020). On May 12, 2020, the New Jersey Supreme Court answered a long-standing subrogation question regarding whether a workers’ compensation carrier is entitled to subrogation and/or reimbursement from a third-party tortfeasor who is covered by New Jersey no-fault insurance, even though the employee does not…
When a person applies for college, there is a possibility of receiving one of three letters: admitted, wait-listed, or rejected. It is nice to know either way if you are accepted, but what about “wait-listed”? You are not yet accepted, but you are not fully rejected – you are in limbo. In California, interventions are…
The federal government is everywhere. It employs nearly 9.1 million workers, which is nearly 6% of total U.S. workforce. This includes nearly 2.1 million federal employees, 4.1 million contract employees, 1.2 million grant employees, 1.3 million active duty military personnel, and more than 500,000 postal service employees. They operate trucks, construct highways, build buildings, drive…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to announce that on June 1, 2020, Ashton Kirsch will be made a partner of the firm. Ashton has been with MWL since 2015, concentrating his practice on large loss casualty, commercial auto, and cargo subrogation cases. Ashton obtained his Bachelor of Arts in Political Science and…
Viruses and the diseases they cause often have different names. The current global pandemic which has stricken much of the planet is no exception. Although most commonly referred to as COVID-19 (technically the illness caused by the virus), this pandemic also can be referred to as SARS-CoV-2 (“severe acute respiratory syndrome coronavirus 2” — the…
Workers’ compensation carriers and liability insurers have been in a state of high anxiety regarding the inevitable insurance claims which will result from employees contracting COVID-19 once businesses begin to reopen and employees all return to life as usual. At least in California, insurers received a little clarity in the form of Governor Gavin Newson’s…
Litigation is rarely cheap, but it is often necessary. Nowhere is this truer than in the area of insurance subrogation, where those who resist paying subrogation claims assume that insurance companies are loath to pull the trigger and file suit and will, therefore, never pay full value on subrogation claims with even the clearest liability…
Given the financial impact of COVID-19 on the country and world, both federal and local governments have scrambled to impose new protections for consumers. Federal protections have been put in place to prevent the collection of both principal and interest on certain federally-held student loans[1], as well as relief from foreclosure for many federally-backed mortgage…
Attorney James Busenlener will be presenting a live one-hour webinar on Government Done Me Wrong: Tort Claims Against Local, State and Federal Authority on May 13, 2020 @ 10:00 – 11:00 a.m. (CDT). Put down those pitchforks, because there are established procedures for suing local, state, and federal governmental systems when you have paid insurance…
Insurance companies are no dummies. The world’s largest insurance companies learned important lessons following previous worldwide health crises. Since the 2003 SARS pandemic, they have tightened up their policies and carefully crafted policy language excluding communicable diseases. They have anticipated the avalanche of business interruption claims which flow from worldwide catastrophes such as the Coronavirus…
There is an ongoing debate in the insurance field over whether a liability insurer has a duty to reveal its policy limits to a third-party claimant even before a lawsuit is filed. One approach—supported by the trial lawyers—presupposes that knowledge of the defendant’s insurance policy limits will facilitate settlement and avoid needless litigation which may…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to welcome seasoned trial lawyer Sarah “Sally” Fry Bruch to the firm as a senior litigating associate. Sally brings with her a wealth of insurance and general litigation experience to MWL’s Hartford, Wisconsin office. Sally has almost three decades of experience having worked as a litigator for…
As millions sit at home and are able to continue working somewhat effectively thanks to the Internet, email, VPN’s, and other miracles of internet and computer science, many of us still recall the “good ole’ days” of conducting business with the help of an IBM Selectric typewriter, dictating or typing letters, buying stamps, and licking…
The Michigan Legislature passed no-fault auto insurance laws in 1973 and like a T-Rex guarding its bone, has been holding on to this dysfunctional approach to auto insurance ever since. Instead of running away completely from the problem and joining states which have enjoyed lower auto insurance premiums after abandoning the failed no-fault experiment, Michigan…
Matthiesen, Wickert & Lehrer, S.C. would like to wish all of our clients and friends a very blessed Easter. While Easter means different things to different people, we celebrate the Good News which Easter represents. It is the fulfillment of the greatest Promise ever made – the celebration of the resurrection of Jesus Christ, the…
Automobile rentals is a $29 billion industry and constitutes a significant portion of the transport sector in America. In 2018, there were 2,212,925 rental vehicles on U.S roads. There are six million auto accidents in the U.S. every year, and rental cars are involved in a significant portion of those accidents. To make matters worse,…
Negotiations skills are a subrogation adjuster or attorney’s best friend and the most essential skill that can be developed for maximizing the profitability and recovery potential of your claims. Less than 1% of all subrogation claims end up in litigation. The vast majority of claims between 95% and 99% are resolved prior to suit being…
A storm is rising, and it isn’t the type which causes damage to homes and vehicles. It causes damage of a much more insidious nature. Following a storm or other natural disaster, canvassers hired by the “hail cartel”—lawyers or opportunistic general contractors—can be found blanketing a neighborhood and knocking on doors. “I’m here to get…
The chances of contracting the Coronavirus (also called “COVID-19”) are slim, but the number of those infected is increasing daily. It is only a matter of time before a worker contracts COVID-19 through their place of employment (i.e., a doctor, emergency responder, etc.). After a worker exposed to the Coronavirus contracts the disease, there could…
Many subrogation professionals will find themselves working from home in the near future. While much can be accomplished from a computer keyboard, there are certain activities essential to investigating and litigating subrogation files which are going to mandate a creative approach. The purpose of this article is to highlight some areas that subrogation professionals need…
When employees work remotely from home or other locations, the normal rules of course and scope can become complicated and confusing. The same is true of subrogation potential. When the employee is injured in their home, subrogation targets tend to shrivel up and blow away. Cybersecurity can also be greatly compromised when an employee utilizes…
The world-wide spread of COVID-19 (Novel Coronavirus) presents us all with rather interesting questions about the power and role of federal and state government. COVID-19 is the illness caused by a virus strain that began spreading in people in December 2019 in Wuhan, Hubei Province, China. It is not the same as the coronaviruses which…
As we continue to closely monitor developments around the spread of COVID-19, the health and safety of Matthiesen, Wickert & Lehrer (MWL) employees around the country and our ability to ensure seamless continuity of subrogation excellence to our clients are our top priorities. All of our attorneys and staff are equipped at home with the…
Attorney Richard Schuster will be presenting a live one-hour webinar on “Dehumidifier Claims: Recent Developments, War Stories, and Evaluating Your Subrogation Results” on March 19, 2020 @10:00 a.m. (CDT). Spring is coming, which means so are the dehumidifier claims. Dehumidifier fires have been common for nearly a decade. Millions of dehumidifiers are defective in design…
One of life’s simple pleasures is taking a lesson from nature and applying it to the complex and variegated professional world in which we spend so much of our lives. For subrogation professionals, one subtle, but important, such lesson is provided to us courtesy of the five million Canadian Geese which migrate annually and fill…
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 of older but functioning vehicles being “totaled” simply due to a bent frame or other seemingly minor or even hidden damage. Even insurance professionals…
Matthiesen, Wickert & Lehrer, S.C. feels it is an honor and a privilege to represent all of its subrogation clients. However, mutual insurance companies hold a special place in our hearts because of their long and distinguished heritage in the annals of insurance history and the rural and local nature of their roots. Subrogating on…
On January 24, 2020, a massive explosion ripped through the Watson Grinding and Manufacturing facility in northwest Houston. The blast damaged 450 structures in the area surrounding the facility. MWL’s Texas office heard the news a few hours after the explosion and took immediate action on behalf of its clients and retained a fire and…
Martins v. Vermont Mutual Ins. Co., 2019 WL 3818293 (D. Mass. 2019) A federal district court in Massachusetts has ruled that Massachusetts tort law does not provide for recovery of “inherent diminution in value” damages by a third-party claimant. The Bay State had long been one of only 15 states that do not have any…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to announce that Zahra Aziz has joined our insurance litigation team as a senior associate attorney in our California branch office. Zahra’s litigation experience adds to a wealth of experience at MWL’s Santa Ana office, which is already teeming with talent and expertise. Zahra’s practice focuses on…
Montana remains one of the toughest states to subrogate in because it has a very strict made whole policy. It is the rule in Montana that an insured must be totally reimbursed for all losses as well as costs, including attorney fees involved in recovering those losses, before the insurer can exercise any right of…
There are 22 million vehicles registered in Texas. There are also 13 million head of cattle, the most in the country and over twice the number of the state with the second-most—Nebraska.[1] Cattle and cars intersect more often than insurance companies would like to think about. In fact, in the fall season of September, October,…
Matthiesen, Wickert & Lehrer, S.C. would like to thank our clients and local counsel for a wonderful year and wish you all a Merry Christmas, Happy Hanukkah, and a blessed Holiday Season. Regardless of what Christmas means to you, we hope your Christmas is full of holiday cheer shared with family and friends. For us…
Let’s just say it. Florida PIP subrogation is a pain in the butt. The state was almost out of the weeds in 2007 when its no-fault laws automatically sunsetted; but the legislature passed a new no-fault law which took effect in 2008. PIP coverage is required for all “motor vehicles” registered and licensed in Florida…
Raymond v. Idaho State Police, 451 P.3d 17 (Idaho 2019). “Spoliation” of evidence occurs when someone with an obligation to preserve evidence with regard to a legal claim neglects to do so or intentionally fails to do so. Such a failure to preserve evidence can take place by destruction of the evidence, damage to the…
For the 7th year, MWL’s Hartford office donated toys to the Gingerbread House and Youth and Family Project Toy Drive, which benefits children of need in Washington and Waukesha counties. We believe every child should share in the magic of the holidays! Thank you to Lisa Peters and her team of volunteers who start early…
Maryland Court Confuses Wisconsin Exclusive Remedy Rule For years now, lawyers, judges, and even courts in other states have been confused over the Exclusive Remedy Rule that exists here in Wisconsin. A clear example is the 1994 decision by the Maryland Supreme Court in Hastings v. Mechalske, Hastings v. Mechalske, 650 A.2d 274 (Md. 1994).…
We are frequently asked by clients to file suit in a case where the statute of limitations expires in a matter of a day—even hours. In some cases, we are asked to file in order to toll an impending statute of limitations and give the client more time to negotiate a settlement or take other…
During the brutal winter of 1620-21, Miles Standish, the English military officer hired by the Pilgrims as military advisor for Plymouth Colony and one of the Mayflower passengers, played a leading role in the administration and defense of the colony. His wife, Rose, suffered from sickness and fever throughout most of the winter, and when…
On March 23, 2015, Oregon Governor Kate Brown signed into law Senate Bill 411 which made PIP and UM/UIM subrogation much more intimidating, but perhaps only slightly more difficult. The new bill amended several Oregon statutes, doubled the PIP medical benefit period from one year to two years, and changed Oregon UM policies from a…
Joella v. Cole, 2019 WL 5287987 (Pa. Super. 2019). The ability of a landlord’s property insurer to subrogate against a tenant for property damage caused by the negligence of the tenant depends on which state the loss occurs in and the nature and language of the lease involved. There are generally three different approaches: A…
The 2019 National Association of Subrogation Professionals (NASP) Annual Conference will be held October 27 – 30 in Washington, D.C. Its lineup of speakers and topics is very good, as usual. MWL will have many experienced subrogation lawyers there who will be moderating, presenting, or speaking at the conference. Ryan Woody will be co-presenting a…
James v. State Farm Mutual Auto. Ins. Co., 929 N.W.2d 541 (S.D. 2019). The origins of auto insurance can be traced all the way back to the ancient Chinese when investors took out insurance policies on cargo ships crossing the high seas. This later became known as marine insurance and is still a system used…
For years, Alaska remained one of the last holdout states which had not provided any caselaw decisions to declare whether and what evidence of medical bill charges or payments could be introduced by the parties in a personal injury suit. In a personal injury case, was the “reasonable value” of medical bills incurred by the…
Bayham v. State of Louisiana, Through the Office of Group Benefits, 2019 WL 4073410 (La. App. 2019). In a line from the History Channel’s television series Vikings, Viking chieftain Ragnar Lothbrok looks down at the village of Kattegat with his son and gives some advice regarding power: Power is always dangerous. It attracts the worst and…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to welcome attorney Catherine Dowie to the firm as a litigation associate in our Wisconsin office. Catherine is licensed to practice law in Massachusetts and Vermont and her practice focuses on national insurance subrogation with an emphasis on ERISA and health insurance subrogation. Catherine has a vast…
The ink was barely dry on Florida Supreme Court’s 2018 decision in DeLisle v. Crane Co., 2018 WL 5075302 (Fla., Oct. 15, 2018). That decision declared Florida’s § 90.702 — which adopted the Daubert standard for the admission of expert testimony — unconstitutional and returned the state to the Frye standard which had been around…
It’s Like Taking Candy from a Very, Very Particular Baby Congress enacted the Longshore and Harbor Workers’ Compensation Act (LHWCA) to provide workers’ compensation to specified employees of private maritime employers. 33 U.S.C. §§ 901-950. The Office of Workers’ Compensation Programs administers this Act, just as it does the Federal Employment Compensation Act (FECA). 5…
Standard homeowner policies pay personal property claims at actual cash value (ACV), which is the replacement cost (RC) of the damaged property based on its current used condition. In other words, it is valued at what it would cost to replace the property at today’s cost minus depreciation: Replacement Cost Value (RCV) – Depreciation =…
Understanding Hospital Liens in All 50 States The advent, development, and implementation of hospital and health care provider lien laws in the U.S. is a subject which has permeated civil litigation and personal injury law. Simply put, a hospital or health care provider lien is a statutory lien enacted for the benefit of hospitals or…
Subrogation Rights Can Be Lost Before They Are Pursued. New Jersey common law employs an equitable doctrine known as the “Entire Controversy Doctrine” (ECD), which can be a trap for the unwary and used as a secret weapon to destroy subrogation claims. Similar to other states’ prohibitions against “splitting” a cause of action, this doctrine…
Most state workers’ compensation laws, or cases construing them, allow the employer and its carrier to waive its right to subrogate against a third party that caused or contributed to an employee’s injury. The purpose of a subrogation waiver is not well understood and is a subject of some confusion in the marketplace. Most frequently,…
The Spanish philosopher George Santayana once said that, “Chaos is the name we give order which produces confusion in our minds.” With that definition in mind, the July 3, 2019 Washington Supreme Court decision of Daniels v. State Farm Mut. Auto. Ins. Co., 2019 WL 2909308 (Wash. July 3, 2019), is responsible for about as…
Amazon.com is the world’s largest online retail marketplace. In the subrogation world, it’s common knowledge that, in states that allow strict liability claims against entities in the supply chain, Amazon attempts to preclude any liability by arguing that it is not a “seller” of a product in question. Instead, Amazon has successfully argued that it…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is very proud to announce that Jake Simon has joined our insurance litigation team as a litigating subrogation associate in our Hartford, Wisconsin office. Jake is a Badger and received his undergraduate degree at Temple University, majoring in Risk Management and Insurance. He received his law degree from the…
ACW Corporation v. Maxwell, 2019 WL 3024049 (Del. Super. 2019) In what seems like a never-ending assault on an employer’s/carrier’s statutory right of subrogation and reimbursement, a Delaware Superior Court—the state trial court of general jurisdiction which also serves as an intermediate appellate court—has issued what constitutes in this author’s opinion one of the top…
Carriers Are Only as Secure as Their Weakest Link What do you really know about the strengths and weakness of the cybersecurity measures taken by the subrogation counsel and recovery vendors you engage to assist with subrogation recoveries? This past April, Yahoo entered into a $117.5 million settlement in a proposed class action suit in…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to welcome seasoned trial attorney Mark A. Solomon to the firm as a partner. Mark brings with him a wealth of litigation and insurance claims experience to MWL’s Austin, Texas office. After nearly ten years of litigating with two of Houston’s premier litigation firms, Mark joined Farmers…
In addition to paying for medical expenses, death benefits, funeral costs and/or indemnity benefits for lost wages resulting from a compensable injury, workers’ compensation insurance carriers also expend considerable dollars for case management costs, medical bill audit fees, rehabilitation benefits, nurse case worker fees, and the like. They pay significant attorney’s fees on permanency awards…
Frederking v. Cincinnati Ins. Co., 929 F.3d 195 (5th Cir. 2019). Carlos Sanchez got drunk and crashed into Richard Frederking while driving his employer’s vehicle insured by Cincinnati Insurance Company. Seriously injured, Frederking sued Sanchez in Texas state court and was awarded $137,025 in compensatory damages and $207,550 in punitive damages. Cincinnati agreed to pay…
On Tuesday, April 9th, the Minnesota legislature passed new hands-free legislation requiring drivers to have their cell phones in hands-free mode while their vehicle is moving. The law, signed by Gov. Tim Walz, goes into effect on August 1, 2019. In so doing, Minnesota joined 17 other states which have passed rigorous new laws governing…
There is an ongoing and heated national debate over the growing practice of law enforcement using red light traffic cameras. More than 500 cities and other municipalities across the country have installed some form of red light camera systems to capture evidence of accidents and red light violations. Hundreds of others are either contemplating their…
On June 14, 2019, the Kansas Supreme Court issued a landmark decision that changes the landscape of personal injury and workers’ compensation third-party cases. In Hilburn v. Enerpipe Ltd., 2019 WL 2479464 (Kan. 2019), the Court declared K.S.A. § 60-19a02 — a 1986 law which originally capped non-economic damages (e.g., pain and suffering and mental…
“Show me the money.” – Rod Tidwell in Jerry Maguire. This year is the 20th anniversary of the 1996 romantic comedy Jerry Maguire. Its director, Cameron Crowe, just published the entire 5,000-word mission statement he wrote for his crisis-hit sports agent played by Tom Cruise. The memo, entitled The Things We Think and Do Not…
On May 9, 2019, the Louisiana Supreme Court issued an important opinion restricting application of the Collateral Source Rule in personal injury lawsuits. This case will impact workers’ compensation subrogation recoveries in Louisiana by reducing the overall pool of recovery money subject to subrogation. In Simmons v. Cornerstone Investments, LLC, et al., 2018-CC-0735 (La. 5/8/19),…
Ridesharing has officially arrived in New York, and confusion over New York no-fault insurance and PIP Loss Transfer arrived with it. On June 29, 2017, the New York State Assembly approved, and Governor Andrew Cuomo signed, the state’s $153 billion budget, which included changes in state law providing for ridesharing and starting a rule-making process…
Insurance claim files are overflowing with losses involving individuals injured when they trip and fall over cracked, broken, or uneven municipal sidewalks. In many cases involving sidewalk defects, the injury is a direct result of a municipality failing to institute and/or conscientiously follow its own policies regarding inspection, maintenance, and repair of miles of sidewalks.…
Stephen Smith will present a live MWL webinar on “Iowa Workers’ Compensation Subrogation: Simple Steps To Avoid Subrogation Traps” on June 12, 2019 at 10:00-11:00 a.m. (CDT). Iowa’s workers’ comp statute is perhaps one of the most complicated in the country. Unlike most workers’ comp schemes, Iowa’s statute creates a variety of rights—that may or…
Every year, more than 170 billion cell phone texts are sent and received. Each year, an average of 3,000 people die and 450,000 are injured in motor vehicle accidents involving distracted drivers. Ten percent of all drivers who are 15 to 19 years of age involved in fatal crashes were distracted when the accident occurred.…
Judge Refers to MWL Chart in Decision A New Jersey Superior Court judge recently issued a written ruling, holding that, as a matter of first impression, it was inappropriate for a lawyer to question his client during trial as to whether his vehicle was “totaled” as a result of an accident with the defendant’s vehicle.…
Texas has more roads than any other state in the country. It has over 15 million licensed drivers on the road and its residents own and operate more than 8 million automobiles—twice as many as New York or Illinois and more than any other state other than California. Nearly all of them travel on Texas…
Texas has historically been a very favorable venue for workers’ compensation subrogation, but it has not been without its gray areas. In death cases, when an employee dies and surviving family members have received workers’ compensation benefits, a careful analysis is required in order to determine and protect the subrogation and future credit rights of…
Texas is at the forefront of enacting laws which limit or bar indemnification clauses of contracts in industries in which the Texas legislature perceive one contracting party has an unfair advantage over the other. Texas currently has anti-indemnity statutes for commercial construction, oil and gas, and common carrier transportation. While the mere fact that your…
Subrogation potential often crashes and burns in the face of exculpatory agreements and liability waivers. As a result, understanding and invalidating such waivers has become an indispensable aspect of the subrogation industry. On April 12, 2019, Lee Wickert with MWL’s new Austin, Texas office was featured in a New York Times article which looked at…
New Austin Office Opens May 1 Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is proud to announce the opening of its new Austin, Texas branch office. The office will be overseen by Gary Wickert, Jim Busenlener, and Lee Wickert. All three are licensed in Texas, and Gary is Board Certified by the Texas Board of Legal…
Matthiesen, Wickert & Lehrer, S.C. would like to wish all of our clients and friends a very blessed Easter. While Easter means different things to different people, we celebrate the Good News which Easter represents. It is the fulfillment of the greatest Promise ever made – the celebration of the resurrection of Jesus Christ, the…
As a native Texan, I have an interest in Texas history. The history of workers’ compensation subrogation in Texas is as storied as the history of the state itself. The Lone Star State flew the flag of the Kingdom of Spain from 1685 until 1821, leaving a legacy that remains to this day. France laid…
We are pleased to announce that this month our New Orleans branch office celebrated its five year anniversary with our firm. The Louisiana office is overseen by MWL partner, Jim Busenlener. Jim is a 1993 graduate of Tulane University in New Orleans and is licensed to practice in Louisiana, Texas, and Pennsylvania. For many years,…
The English language is a fascinating subject with a history as rich as it is confusing. It is spoken by nearly 1 billion people worldwide, making it the second most-spoken language, with only Mandarin (1.2 billion) surpassing it. It is the official language of nearly 100 countries, not including the United States, which doesn’t have…
A recent Pennsylvania federal court decision reminds us all that when settling third-party cases that involve workers’ compensation subrogation interests, it is vitally important to understand all of the steps which are necessary to fully document and enforce any settlement agreement that involves a waiver or termination of any future workers’ compensation benefits. The decision…
One year ago, the Arizona Court of Appeals announced that A.R.S. § 23-1023 was not a statute of limitations under Arizona law, with regard to the requirement that an employee must file a third-party action within the first year after an accident or obtain a “reassignment” from the employer to do so in the second…
Another state has been heard from. The growing outcry for direction over whether case management fees can be recovered by a subrogated workers’ compensation carrier has in many respects been as daunting and elusive as the search for the Holy Grail. All 50 states allow for recovery of workers’ compensation benefits paid to or on…
On January 26, 2018, the Texas Supreme Court refused to review the July 14, 2016 decision by the Texas Court of Appeals in Ins. Co. of the State of Pennsylvania v. Roberts, 506 S.W.3d 498 (Tex. App. 2016), review granted (June 1, 2018). This established the Court of Appeal’s decision as good law which would…
In Indiana, a subrogated carrier may be able to sue the attorney on behalf of its insured when the attorney settles a third-party tort claim without reimbursing the subrogated carrier. In Holland v. Indiana Farm Bureau Insurance, 110 N.E.3d 369 (Ind. App. 2018), Farm Bureau sued attorney Douglas Holland to recover money owed to it…
Subrogation professionals are often required to deal with a variety of insurance companies, including those admitted or licensed to transact business in a particular state and those which are not. Understanding the difference can assist the claims handler and subrogation professional in the daily handling of their claims. This article briefly summarizes the different types…
It remains one of the most difficult issues to deal within the world of property insurance. Homeowners’ insurance policies usually contain a provision obligating the carrier to repair or replace an insured’s damaged property with “material of like kind and quality” or with “similar material.” They cover property damage resulting from “sudden and accidental” losses.…
A long-standing political tug-of-war over whether a workers’ compensation carrier can initiate a third-party subrogation lawsuit and protect its subrogation rights under § 319 has ended with a disappointing Supreme Court decision. On November 21, 2018, the Pennsylvania Supreme Court decided the case of Hartford Ins. Group on Behalf of Chen v. Kamara, 2018 WL…
The Minnesota Court of Appeals has confirmed how a third-party tort recovery is to be apportioned procedurally when the employer is found to be comparatively at fault. The confusing state of affairs in Minnesota has undergone some changes in recent years, but the new decision in Fish v. Ramler Trucking, Inc., 2019 WL 272865 (Minn.…
Trucking insurers issuing motor carrier policies that contain MCS-90 Endorsements may be overlooking significant subrogation and recovery opportunities. MCS-90 subrogation is an under-utilized means of recovery that can significantly increase an insurance carrier’s bottom line. Understanding the history behind and developing a working knowledge of MCS-90 Endorsements is essential for any adjuster or subrogation professional…
When a negligent driver causes damage to another vehicle in an accident, most states allow the owner of the damaged vehicle to recover damages in tort for the reasonable cost of repairing or replacing the vehicle along with the monetary value of being without the vehicle for a reasonable period while the vehicle is being…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to announce that Mingmei Zhu has joined our insurance litigation team as an associate attorney in our Wisconsin office. Mingmei is licensed to practice in California. She is from Changsha, China, a “small” town of 7.5 million people in central China’s Hunan province. Mingmei is fluent in…
On December 28, 2018, the Indiana Court of Appeals issued a decision which continues to leave property subrogation involving landlords and tenant very much up in the air and subject to a case-by-case evaluation. In the case of Youell v. Cincinnati Ins. Co., 2018 WL 6816772 (Ind. App. 2018), a landlord and a tenant entered…
On January 11, 2019, the Texas Court of Appeals issued an opinion which will have a profound effect on workers’ compensation subrogation in Texas. In New Hampshire Insurance Company v. Rodriguez, 2019 WL 168482 (Tex. App. 2019), the court announced for the first time that a workers’ compensation lien can be reduced and even eliminated…
It seems strange to suggest that one of history’s greatest military battles would have anything in common with modern insurance subrogation. In 490 B.C., the Athenian army defeated the invading Persian army in a battle in the plain of Marathon, located roughly 26 miles north of Athens. According to legend, after winning the battle of…
Matthiesen, Wickert & Lehrer, S.C. would like to thank our clients and local counsel for a wonderful year and wish you all a Merry Christmas, Happy Hanukkah, and a blessed Holiday Season. Regardless of what Christmas means to you, we hope your Christmas is full of holiday cheer shared with family and friends. For us…
Florida’s tug-of-war between its courts and its legislature regarding the appropriate standard for a judge to use to assess the admissibility of an expert’s opinion testimony has finally been settled. On October 14, 2018, the Florida Supreme Court announced that the Frye standard is the governing standard when determining the admissibility of expert testimony. This…
The Connecticut Supreme Court just made it easier for a landlord’s property insurer to subrogate against a tenant whose negligence causes damage to the landlord’s building. For years, Connecticut had followed the so-called “Sutton Rule” which holds that tenants are considered co-insureds under a landlord’s fire insurance policy and may not be sued by the…
The Illinois Supreme Court has somewhat clarified an injured employee’s rights to pursue a third-party case by intervening into a third-party subrogation suit filed by the workers’ compensation carrier, even after the personal injury Statute of Limitations (“SOL”) runs. In A & R Janitorial v. Pepper Construction Company, 2018 WL 123220 (Ill. 2018), an employee…
A recent New Jersey Superior Court Appellate Division decision has ostensibly settled a long-standing subrogation question with regard to whether a worker’s compensation carrier is entitled to subrogation and/or reimbursement from a third-party tortfeasor who is covered by New Jersey no-fault insurance, even though the employee does not otherwise meet the verbal threshold allowing him…
On Friday, November 30th, a magnitude 7.0 earthquake struck Alaska, approximately 10 miles northeast of Anchorage. Thankfully, the damage appears to be limited mainly to property loss, and a lot of that can be attributed to Alaska’s stringent building codes and standards. Alaska has more earthquakes than any other region of North America and is…
A.O. Smith Corporation, a manufacturer of water heaters located in Milwaukee, Wisconsin, recently announced a recall of more than 616,000 water heaters that are being blamed on causing numerous house fires. According to the U.S. Consumer Product Safety Commission (CPCS), the gas burner (flame arrestor) screen on several models develop a tear, resulting in excessive…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to announce that Katherine Sandoval has joined our insurance litigation team as an associate attorney in our California office. Katherine’s litigation experience adds to a wealth of experience at MWL’s Orange office, which is already teeming with talent and expertise. Katherine received her undergraduate degree from Occidental…
Subrogation professionals are duty-bound to maximize a workers’ compensation subrogation recovery for a workers’ compensation carrier and its insured employer, who is eager to maintain a favorable experience rating. They dream about claims in which they demand 100% of a policy limits third-party recovery, not because they wish the employee ill-will, but because they have…
Fire-ravaged California is no stranger to the devastating loss of life and property at the hands of wildfires. This summer, a series of large wildfires erupted across California, mostly in the northern part of the state, including the destructive Carr Fire and the Mendocino Complex Fire. On August 4, 2018, a national disaster was declared.…
Oh, that it wasn’t so, but today’s world of insurance claims adjusting, subrogation, and civil litigation rewards the ability of one party to take advantage of what the other party doesn’t know. A civil trial is known as an “adversary proceeding” because it pits two or more opponents against one another with regard to a…
Just five days into 2018, computer giant HP was forced to recall 52,000 lithium-ion batteries. HP warned that the batteries could overheat and cause serious burns after receiving eight reports of batteries overheating, melting, or charring. HP offered to replace the recalled batteries for free because it’s not possible for a consumer to remedy the…
The MCS-90 Endorsement is an endorsement that is found in insurance policies issued to trucking companies operating interstate. This endorsement allows the trucking company to comply with certain government mandated public financial responsibility regulations. Specifically, the federal government mandates that trucking companies operating interstate comply with their financial responsibility obligations by having an insurance policy…
Iowa seems like a very simple state for workers’ compensation subrogation. Subrogation rights are set forth in a single statute – I.C.A. § 85.22. It provides that either the employee or employer can file a third-party action. When the third-party case is resolved, the carrier is entitled to first-money reimbursement and a future credit, less…
Every year approximately 76,000 pedestrians suffer injuries when they are struck by a moving vehicle. Beginning in 2016, America experienced a significant increase in the number of pedestrian fatalities, and in 2017 alone, there were nearly 6,000 pedestrian deaths in the U.S. Five states alone account for 43% of all pedestrian deaths—California, Florida, Texas, New…
Hector Salitrero, managing partner of Matthiesen, Wickert & Lehrer, S.C.’s California office, will present a NASP webinar on Overcoming Obstacles to Workers’ Compensation Recovery on October 9, 2018 at 1 p.m. (EST). This webinar will help you understand, and hopefully avoid, some of the more common challenging issues in the workers’ compensation arena. Hector will share and demonstrate…
Everyone in Michigan is financially frustrated with the high price of automobile insurance. Recently, Detroit Mayor, Mike Duggan, along with eight other motorists filed a suit in U.S. District Court in an effort to expedite the elimination of Michigan’s no-fault system. The litigation comes as insurance premiums continue to rise, and after two bills were…
One day last month our firm received three separate, unrelated subrogation claim files involving serious personal injury, property damage, and a death resulting from tractor-trailers whose drivers had swerved to avoid colliding with a deer on the highway. In two of the losses, the 18-wheelers overturned and were shortly thereafter struck by other vehicles, resulting…
Where there’s smoke, there’s subrogation. At least it often works out that way. The adage is certainly true in the case of Gree dehumidifiers. If you have anything to do with property insurance, you have likely been exposed to multiple claims involving Gree dehumidifiers. It took 450 fires and nearly $20 million in property damage,…
The necessity of utilizing expert witnesses in claims adjusting, recovery investigation, and subrogation litigation has risen exponentially over the last 20 years. When an expert is necessary, where experts can be located and selected, and how they can be cost-effectively utilized so as to maximize subrogation recoveries remains a complex and expensive question for most…
Work Comp Third-Party Settlement Not Subject to Aitken Reduction In Arizona, a workers’ compensation carrier’s statutory lien under § 23–1023 is subject to being reduced if an employer is found to be negligent by a jury. In Aitken v. Indus. Comm’n of Ariz., 904 P.2d 456 (Ariz. 1995), cert. denied, 517 U.S. 1208, the Arizona…
Setting the Record Straight We are just as guilty as everyone else. Words matter, and in our industry, they are our tools. Therefore, using the right words would seem to be a priority. Making them up isn’t. Our firm reviews two to three dozen new claim files/catastrophic injury cases every day. We review these files…
Even non-standard auto insurers enjoy getting checks in the mail. The effective subrogation of Med Pay, PIP, UM/UIM, and collision claims by non-standard auto insurers means money coming into a segment of the insurance industry that historically has been much better at paying it out. The reasons this segment of the insurance industry has been…
Almost everyone involved in handling property damage subrogation has faced a claim involving a failed water supply line that was sold or distributed by Interline Brands, Inc. These supply lines are often identified as “Everlotus” supply lines based on the “EL” that is stamped on one of the ferrules. Recently, Interline Brands, Inc. settled a…
We only hear half of what we listen to. Perhaps that is why most people instinctively use tautology when they write or speak. Tautology is the use of different words to say the same thing or repeating the same thing twice, often in the same sentence, using different words. Most people don’t even know that…
Most auto 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 recovers its claim payments, the issue often becomes what portion, if any, of the insured’s deductible must or should be reimbursed to the…
Subrogating Pele and the Goddess of Fire In the Hawaiian religion, Tūtū Pele is the goddess of fire and volcanoes and the creator of the Hawaiian Islands. Hawaiians believe Kilauea to be inhabited by a “family of fire gods”, one of the sisters being Pele, who is believed to govern Kilauea and is responsible for…
Georgia has joined fifteen other states which have outlawed the use of hand-held cellphones and mobile devices while driving. A new law signed by Governor Nathan Deal makes watching movies, shooting video, and even the mere “holding” of hand-held devices while in the vehicle—even while stopped—illegal. The bill wasn’t passed in Georgia’s Capitol building in…
On April 3, 2018, the Wisconsin Legislature enacted 2017 Wis. Act 235 which substantially changes certain rules governing civil litigation in Wisconsin. Included in this Act are new rules regarding discovery practice and the Rules of Civil Procedure. It is anticipated that these changes will result in uncertainty and increased motion practice as these new…
On April 5, 2018, the Wisconsin Supreme Court held that the operative event which triggers a notice of claim requirement in an underinsured motorist (UIM) policy is the tender of the tortfeasor’s underlying policy limit and not the accident itself. See Shugarts v. Mohr, 2018 WI 27. This holding overrules a published Wisconsin Court of…
Who covers what when an employee is involved in an accident while driving a personal vehicle for business purposes? It is a question as old as insurance itself. It should come as no surprise that the Holy Grail for trial lawyers is obtaining coverage for an employee’s personal vehicle through the employer’s commercial auto policy.…
A generation ago, subrogation professionals were almost unheard of. Over the years, however, as prudent businesses and insurance companies began to insist on their statutory and contractual rights of subrogation, the profession has grown. On February 8, 2018, the Texas Supreme Court issued an opinion that grants subrogation adjusters and claims handlers the ability to…
A long-standing controversy in Pennsylvania workers’ compensation subrogation has been resolved—and resolved in a manner most unfriendly to Pennsylvania small businesses and the entire workers’ compensation industry. On June 19, 2018, the Pennsylvania Supreme Court hung their hat on a mistaken turn of a phrase found within § 319—the Pennsylvania workers’ compensation subrogation statute. Whitmoyer…
Aggressive subrogation practitioners always look for short cuts. Ours is an industry in which the “bottom line” means the difference between success and failure. If a workers’ compensation subrogation claim can be resolved quickly—even before the employee settles the third-party action filed by him—it improves the cost-effectiveness of the result. In many states, a workers’…
It is the universal trigger and a pet peeve of millions of drivers. You’re making good time traveling 75 MPH in the left lane of a freeway with a 70 MPH posted speed limit. You tap your brakes, turning off the cruise control, because a midnight blue 2012 Buick Regal is firmly ensconced in the…
Society has gone from risk-averse to risk-intolerant. It is hard to participate in any activity without being asked to read and sign some sort of release, exculpatory agreement, or liability waiver in advance. A key tool of risk management is the exculpatory agreement – a generic term which can refer to a provision in a…
Matthiesen, Wickert & Lehrer, S.C. is growing. We would like to announce the joinder of three new attorneys to our firm – one in Wisconsin, one in New Orleans, and one in our Los Angeles office. Matthiesen, Wickert & Lehrer Welcomes Charlene Busch Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to welcome Charlene Busch…
It is said that good judgment comes from experience, but experience comes from bad judgment. That pithy aphorism is generally true in life, but is particularly true when a company sees significantly increased workers’ compensation insurance premiums following a serious workers’ compensation claim. The same is true even if the claim was not the employer’s fault. Is it…
It’s going to be a banner year for trial lawyers and a tough year for auto insurers. More than 3,000 people are killed on U.S. roads every year in distracted driving crashes, and the use of cellphones while driving has become one of the main reasons why. A new study authored by Zendrive, a San…
Gary Wickert and Jim Busenlener will be providing a complimentary webinar on April 11, 2018 from 10:00 to 11:30 a.m. (CDT). This webinar will provide a thorough and instructive look at the handling of longshore subrogation from first report to settlement and trial. It focuses on the nuts and bolts of the nature of longshore claims,…
Extinguishing Third-Party Liability as a Prerequisite to Contribution The absence of a simple sentence in a release signed by the claimant after settling a liability claim is costing liability carriers millions of dollars in contribution recoveries across the country. By the time they discover the mistake, it is too late. In contribution claims, a liability…
Delays in Referring File to Subrogation Counsel Can Be Expensive. In July 2017, we published an article in the Claims Journal entitled “Ten Subrogation Mistakes Insurance Companies Keep Making.” A copy of the somewhat controversial article can be viewed HERE. Thirty-four years of subrogation litigation experience had distilled ten of the most common mistakes that…
It was the Wisconsin Legislature to the rescue. On January 6, 2018, the Wisconsin Court of Appeals held that a temporary employee on loan to a special employer appeared to have an option of either filing a workers’ compensation claim or a third-party tort suit against the special employer. In Carlos Rivera v. Alpine Insulation and…
When multiple insurers provide coverage for a single loss or accident, things can get confusing. Coinsurance can arise as a result of conscious risk-sharing or accidentally when two policies have overlapping coverage. Litigation involving who pays what, when, and in what order has become a cottage industry involving both subrogation and contribution. Understanding all the…
There is little law in California regarding the subrogation/reimbursement and/or future credit rights of an employer or workers’ compensation carrier when an employee makes a third-party recovery because of legal malpractice in the handling of the employee’s attorney. This is surprising, given that California usually leads the nation on cutting-edge issues such as this. Despite the…
Ridesharing has officially arrived in New York, and confusion over New York no-fault insurance and PIP Loss Transfer has arrived with it. On June 29, 2017, the New York State Assembly approved, and Governor Andrew Cuomo signed, the state’s $153 billion budget, which included changes in state law providing for ridesharing and starting a rule-making…
E-cigarettes are advertised and sold as a safer alternative to traditional cigarettes. They literally burst onto the scene back in 2007 and are now a $7 billion global industry made up of roughly 500 brands. Some of the most popular brands include V2, Halo, VaporFi, and blu. By some projections, e-cigarette sales could surpass conventional cigarettes…
Most people remember from grade-school science class that water expands as it freezes. There is also a common misconception that this expanding ice physically causes a pipe to rupture. However, this expanding ice is often only one part of the equation, in that most pipes actually burst because of excessive water pressure created by the blocked or…
It seems that in Wisconsin, the Exclusive Remedy Rule, which prevents an employee from suing his employer in tort, isn’t all that it’s cracked up to be. On January 6, 2018, the Wisconsin Court of Appeals held that a temporary employee on loan to a special employer appears to have an option. Carlos Rivera v.…
On January 26, 2018, the Texas Supreme Court refused to review the July 14, 2016 decision by the Texas Court of Appeals in Ins. Co. of the State of Pennsylvania v. Roberts, 506 S.W.3d 498 (Tex. App. 2016), review denied (Jan. 26, 2018). Matthiesen, Wickert & Lehrer, S.C., (MWL) had filed an amicus brief on…
The vagaries and complexity of nationwide subrogation have, for many lawyers and insurance professionals, made keeping current with changing subrogation law in all 50 states an arduous and laborious task — the subrogation equivalent of Sisyphus rolling the stone up the mythical hill. It is the goal of Matthiesen, Wickert & Lehrer, S.C. (MWL), through…
The Amtrak Cascades 501 departed Seattle on its inaugural voyage on the morning of December 18, 2017. Just after 7:30 a.m., the train derailed at high speed in DuPont, Washington, causing three fatalities, dozens of injuries, and widespread destruction. Government reports state that the derailment occurred because of excessive speed and emphasized that operators of the…
Recovery of Medical Expenses in Personal Injury Actions Generally To recover damages for past medical expenses in a personal injury lawsuit, a plaintiff must present evidence and prove that the medical expenses incurred were both “reasonable” and “necessary.” For more than 100 years, this simple formula was the least complicated aspect of a plaintiff’s personal injury…
Matthiesen, Wickert & Lehrer, S.C. would like to thank all our clients and local counsel for a wonderful year and we wish you all a Merry Christmas, Happy Hanukkah, and a blessed Holiday Season. Regardless of what Christmas means to you, we hope your Christmas is full of holiday cheer shared with family and friends.…
On December 11, 2017, the New Jersey Supreme Court handed injured employees and struggling small businesses in New Jersey a huge victory. In Vitale v. Schering-Plough Corp., A-20-16; 078294 (N.J. December 11, 2017), the Court of Appeals affirmed a trial court’s ruling that a contractual limitation on the right of an employee to sue a…
The law of physics known as the “Uncertainty Principle” states that the position and velocity of an object cannot be measured exactly, at the same time, even in theory. The reason for this is that any attempt to measure precisely the velocity of a subatomic particle, such as an electron, will knock it about in…
As the weather starts to turn colder (at least here in the Northern states), our thoughts turn to the holidays and all the joys of the season. Again, not to be a Grinch this season (see my previous article entitled “Subrogating Christmas” that discusses the dangers of real Christmas trees and holiday lights, with some subrogation tips),…
A Philadelphia jury handed down a roughly $28 million verdict against Johnson & Johnson and Bayer AG on Tuesday, December 5, giving hope to tens of thousands of Xarelto plaintiffs after a series of defense verdicts in the federal multidistrict litigation (MDL) currently pending in the Eastern District of Louisiana. This is also very good news for…
After considering a motion brought by the plaintiffs in 46 actions pending in nine federal districts across the country, the Judicial Panel on Multidistrict Litigation (MDL) entered an order on Tuesday, transferring those actions to the Northern District of Ohio for coordinated or consolidated pretrial proceedings. Those cases represent only a fraction of the cases filed…
Insurers Seek Reimbursement for the High Cost of Opioid Addictions Big Pharma is having a Big Tobacco moment. Since 1999, the number of prescription opioids sold in America has almost quadrupled. Over the same period, prescription opioid deaths have more than quadrupled and millions have become addicted to legally-prescribed painkillers that are 50 times more powerful…
A car slams into a number of other vehicles stopped at a red light, only to quickly flee the scene. This fact scenario almost always involves operating under the influence or a stolen vehicle. In the case of a stolen vehicle, rarely is a thief considerate enough to take out insurance covering his operation of the stolen vehicle…
Changing Times Require Changing Tactics. One of the most recognized legal symbols of American justice is Lady Justice, the blindfolded woman carrying a sword and a set of scales. She symbolizes the fair and equitable administration of justice, without corruption, greed, prejudice, or favor. Lately, however, she’s been looking for work. It seems that the hallowed halls of…
Kidde has recalled two styles of fire extinguishers, including 142 different models of fire extinguishers that were manufactured as far back as 1973. The fire extinguishers can become clogged or require excessive force to discharge and can fail to activate during a fire emergency. In addition, the nozzle can detach with enough force to pose an…
As a subrogation professional, often times one of the hardest aspects of the career to understand is that you have to put on your plaintiff’s “hat” in order to prove your case and make a recovery. This involves gathering facts and understanding how tort law applies in your claim. Inevitably, when a fellow attorney or subrogation adjuster…
As you may know, Gary Wickert recently appeared on a national radio program, hosted by Larry Cohen. The program, which was produced by Ringler Radio and entitled “Driverless Car Litigation”, focused on the ever-changing intersection between the exploding industry of self-driving vehicles, product liability litigation, and the auto insurance industry. The latest innovations in driverless cars were…
Your insured’s eighteen-wheeler is struck head-on by another vehicle travelling at a high rate of speed, resulting in significant medical expenses to your insured driver and a passenger, as well as considerable property damage to your insured’s vehicle. The tortfeasor died instantly. Subrogation efforts reveal adequate liability coverage for the responsible driver and you present your…
Beginning July 1, 2018, Maryland auto insurers issuing new policies will be required to offer enhanced underinsured motorist (“EUIM”) coverage in place of the uninsured motorist (“UM”) coverage required under § 19-509. Md. Code Ins. § 19-501.1(d). Unlike UM coverage, EUIM coverage prohibits the carrier from reducing the coverage amount by any applicable liability insurance paid…
There is seemingly no end to the attacks on a workers’ compensation carrier’s rights of subrogation and reimbursement when a third-party is liable for a work-related injury. In New Jersey, however, the Supreme Court will soon be deciding whether even the employee is prohibited from suing a customer of his employer, when forced to sign a…
On September 26, 2017, a truck spilled thousands of roofing nails on Interstate 10 in Metairie, Louisiana (a suburb of New Orleans). Hundreds of vehicles rolled over the nails and sustained punctured tires, resulting in replacement of tires that may total as much as $1,000 per vehicle. The Louisiana State Police cited the driver for failing…
According to a 1999 study commissioned by the Alliance of American Insurers (AAI), if you were to build a $25,000 vehicle using only Original Equipment Manufacturer (OEM) parts, it would cost you over $100,000. When repairing vehicles damaged in accidents, insurance companies argue that the use of look-alike, aftermarket (non-OEM) generic crash parts significantly contributes…
Mandatory Arbitration of Auto Physical Damage Claims Now a Thing Of The Past The game of musical chairs regarding the Illinois law that requires mandatory arbitration of auto physical damage subrogation claims is finally over. The music has stopped and the statute has been repealed. The needless expense and waste of time associated with the…
Almost any time money changes hands in America, there are tax issues. The Internal Revenue Code (I.R.C.) is over 75,000 pages long, and contains fives times as many words as the Bible. The federal tax rules and resources within the CCH Standard Federal Tax Reporter exceed 75,000 pages, enough to fill a small library. More daunting…
The Iowa legislature has finally acted on the call by Iowa business groups to overhaul Iowa’s workers’ compensation system. For years, they have claimed that the state’s system has tilted unfairly toward injured workers and significantly raised employers’ costs. Many have called Iowa’s workers’ compensation system an “unsustainable litigious lottery.” In March, the changes became…
In May 2016, we published an article listing the ten best and the ten worst states for subrogating workers’ compensation. Arizona was near the top because it didn’t allow reduction of the carrier’s lien for attorneys’ fees and provided for reimbursement of the carrier “off the top” of a third-party recovery. It didn’t make the…
Subrogation professionals must become familiar with an increasingly used defense in the litigation of auto insurance subrogation cases. Even if the insured is totally free from fault in the operation of the insured’s auto, not wearing a seat belt could result in a reduction of the damages the insured and/or subrogated auto carrier will be…
As if the tragedy and destruction caused by Hurricane Harvey in the Houston and Gulf Coast region wasn’t bad enough, a few opportunistic trial lawyers and public adjusters have taken to social media urging Houston homeowners to file their insurance claims by September 1 in order to avoid the “consequences” of a newly passed Texas…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to announce that Isaiah Richie has joined our insurance litigation team as an associate attorney in our Wisconsin office. Isaiah is licensed to practice in Colorado and Wisconsin. Formerly a clerk at the Colorado Court of Appeals and the Arizona Court of Appeals, Isaiah brings with him…
As you may know, Gary Wickert recently appeared on a national Ringler Radio program, hosted by Larry Cohen. The program, titled “Driverless Car Litigation”, focused on the ever-changing intersection between the exploding industry of self-driving vehicles and litigation. The latest innovations in driverless cars were discussed, along with their likely impact on the insurance industry…
Recently, Matthiesen, Wickert & Lehrer, S.C. (MWL) successfully argued an appeal regarding a firefighter’s claims of defamation. The dispute stemmed from a local television broadcast in which a reporter discussed the disabled status of local firefighter. The firefighter had injured his elbow and ulnar nerve, (commonly called the “funny-bone”) resulting in numbness and tingling of…
Every year, property insurers write checks totaling nearly $15 billion in response to fire losses, large and small. Fire claims average nearly $50,000 and are the most expensive type of claim filed, followed by hail claims at $11,000. Claims professionals are often slow to remove their claims hat and put on their Sherlock Holmes costume,…
It seems that there are no lengths parties won’t go to in order to destroy what they perceive as the evil known as “subrogation.” Workers’ compensation subrogation professionals in Pennsylvania are familiar with the saga of the Domtar case, which began in 2013 and culminated in 2015 with the Supreme Court announcing that although §…
Matthiesen, Wickert & Lehrer, S.C. (MWL) proudly announces the opening of its new branch office in California. The office is located at 500 N. State College Blvd, Suite 1100, Orange, California 92868, with convenient access to state and federal courts in Los Angeles, San Diego, and the Central Valley. While our national subrogation program still…
Recently, in Kaitlin Woods Condominium Ass’n v. Kaitlin Woods, LLC, et al., 2017 WL 3234370 (Wis. 2017), the Wisconsin Court of Appeals upheld a “synthetic stucco” (also known as Exterior Insulation and Finish System (EIFS)) exclusion in a commercial general liability policy. The facts of the case are quite common—damages caused by water allegedly stemming…
Subrogation is the legal doctrine which allows one party, usually an insurance company, that pays a loss by its insured which was caused by a third party, to take over the rights of its insured against the third party and recover its claim payments. It wouldn’t make much sense if, after paying a first-party insurance…
“Experience is simply the name we give our mistakes,” Oscar Wilde famously said. Having represented the subrogation interests of insurance companies and self-insured companies around the world for the past 33 years, I’ve seen enough bad subrogation decisions to create a concrete list of the ten most often repeated mistakes when it comes to effectively…
Plaintiff-friendly judges and legislators in various states have gained strength and influence over the last twenty years, resulting in statutes and court decisions inimical to the subrogation and reimbursement rights of workers’ compensation carriers. North Dakota is fighting back. On March 13, 2017, the North Dakota legislature amended § 65-01-09, North Dakota’s workers’ compensation subrogation…
Some states, including Missouri, are known as “anti-subrogation” states. Missouri’s public policy prohibits the assignment of a personal injury claim, whether it is called an assignment, subrogation interest, or agreement to reimburse. Hays v. Missouri Highways and Transp. Comm’n, 62 S.W.3d 538 (Mo. App. 2001). This means that in Missouri, a health insurance company who…
A recent 2nd Circuit Court of Appeals decision interpreted New York’s General Obligations Law § 5-335, which provides that personal injury settlements “shall be conclusively presumed” not to include “any compensation for the cost of health care services, loss of earnings, or other economic loss[es]” that “have been or are obligated to be paid or…
Nebraska has recently become a battleground in the war against workers’ compensation subrogation being waged by trial lawyers. Nebraska is a “tweener” when it comes to workers’ compensation subrogation. It doesn’t provide a carrier with a first money right to recovery of third-party proceeds, as most states do, but neither does it employ a version…
Gary Wickert recently appeared on a national Ringler Radio program, hosted by Larry Cohen. The program, titled “Driverless Car Litigation”, focused on the ever-changing intersection between the exploding industry of self-driving vehicles and litigation. The latest innovations in driverless cars were discussed, along with their likely impact on the insurance industry and underwriting. Even trial…
On May 2, 2017, the Wisconsin Court of Appeals outlined why an insurance carrier that fails to defend an insured without first seeking a judicial determination of no coverage does so at its own peril. See Country World Media Group, Inc. v. Erie Ins. Co., 2016 WI App. 1343. Wisconsin insurance carriers should take note…
Words matter. On May 22, 2017, the Ohio Court of Appeals paid attention to the specific wording in the Workers’ Compensation Act and ignored the traditional definition given to the term “third party” in workers’ compensation subrogation settings. In McKinney v. Omni Die Casting, Inc., 2017 Ohio – 2949 (Ohio App. 2017), it held for…
In a highly anticipated decision, the U.S. Supreme Court has finally weighed in on the issue of FEHBA subrogation and federal preemption of state laws in Coventry Health Care of Missouri, Inc. v. Nevils, 137 S.Ct. 1190 (April 18, 2017) (Coventry II). The verdict is that state law must yield to FEHBA contracts’ subrogation provisions.…
Words matter. Our firm reviews as many as two to three dozen new claim files/catastrophic injury cases every day. We review these files for many reasons, but primarily to determine if the loss/injury was the result of negligence on the part of some “third party” other than the insured. This “third party” is also known…
In Nevada, when a workers’ compensation carrier is subrogated to the rights of the worker under § 616C.215, the carrier has a lien on the “total proceeds” of any third-party recovery. N.R.S. § 616C.215(5). This is true whether the recovery is by way of judgment, settlement or otherwise. Id. The statute is very clear on this…
Around the world, robots are increasingly being used to perform menial and complex labor tasks in the home and in the workplace. Robots are used in restaurant kitchens to make sushi and chop vegetables. They are also important earlier in food production, planting rice, and tending growing crops. Robots also work as receptionists and cleaners,…
Effective auto property subrogation may seem simple, but it often requires a thorough understanding of some of the more confusing legal terms known to American civil jurisprudence. When the owner of a vehicle entrusts his or her vehicle to a permissive user who is then involved in an accident which results in damages to the…
MWL participated in the American Lung Association’s 2017 Fight For Air Climb Law Firm Challenge on March 18, 2017. The teams had to climb 47 floors of the U.S. Bank Center in Milwaukee, Wisconsin, which entailed 94 flights of stairs, totaling 1,034 steps. This challenge raised valuable funds and awareness for the American Lung Association. The MWL team consisted…
A long-standing controversy has been resolved and a major anti-subrogation obstacle in Pennsylvania has been overcome. The proverbial light bulb has gone on in the Quaker State. The ongoing debate in Pennsylvania over whether a workers’ compensation carrier can initiate the filing of a third-party lawsuit is finally over. The answer is “yes” and we…
Serrano v. Workers’ Comp. Appeal Bd. (Ametek, Inc.), 2017 WL 563317 (Pa. Comm. 2017). On March 6, 2006, a container of metal powders, with which Serrano was working, exploded, severely burning him. Serrano sued Aramark Uniform and Career Apparel, Inc. (Aramark), which had provided the flame-resistant coveralls Serrano had been wearing at the time of…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to announce that Caleb Katz has become an associate of the firm after a couple years serving as a paralegal and law clerk. Caleb will continue to practice insurance litigation and subrogation within all lines of insurance, with an emphasis on occupational accident subrogation. Caleb obtained his…
The use of expert witnesses has become an integral and indispensable aspect of American litigation, and it is often the side with the best expert who wins the day. The same holds true for subrogation files in which the subrogated carrier must invest in an expert to assist in meeting the plaintiff’s burden of proof.…
Recently, Watts Regulator Company settled two separate class-action lawsuits involving their Floodsafe supply-line and Water Heater Connectors. Both products allegedly have design and manufacturing defects that cause them to fail prematurely. Therefore, please be aware that if you have a claim involving property damage caused by one of these Watts connectors, your claim may be…
If a contest were held for the worst appellate decision of 2017, we might already have a winner. The recent unpublished Hawai’i Court of Appeals decision in Hawaiian Dredging Constr. Co., Inc. v. Fujikawa Assocs., Inc., 2017 WL 663540 (Haw. App. 2017) turns the very concept of workers’ compensation in the Aloha State upside down,…
Trial lawyers in Nebraska had high hopes that a questionable Court of Appeals decision from early 2016 might reinject the equitable Made Whole Doctrine into Nebraska workers’ compensation subrogation and eliminate any right of the carrier to a future credit whenever the injured employee files and pursues a third-party action. On December 16, 2016, the…
The new American horror film “Split”, directed by M. Night Shyamalan, recently in theaters, is a psychological thriller which centers on a bizarre antagonist with 23 separate personalities. Without spoiling the plot, suffice it to say that it focuses on the fact that there is something to the adage “mind over matter.” They say that…
Heimerman v. Rose, 2017 WL 130123 (Kan. App. 2017) On August 31, 2013, Dan Heimerman was driving in Kansas, while employed by Northern Clearing, Inc., (“Northern”) and was killed when he was rear-ended by a dump truck driven by Zachary Rose and owned by Payless Concrete (“Payless”). His son, Lucas Heimerman, a Florida resident, brought…
It has now been four years since Claims Journal’s online magazine asked Gary Wickert to begin a new monthly column focusing on subrogation and related claims and insurance topics. Gary’s column entitled “The Road To Recovery” can be found HERE. The column was very well-received and continues to provide the claims industry with a very…
The last 40 years have been a roulette wheel of changing opinions and positions for the Idaho Supreme Court with regard to the subrogation and reimbursement rights of an employer or its workers’ compensation carrier when there is employer negligence. However, the white ball representing the latest position of the Idaho Supreme Court with regard…
Injury and workers’ compensation cases involving slips and falls on snow and ice during winter in America’s northern states continue to be a perplexing subrogation puzzle for insurance claims and subrogation professionals. During the winter months, our office sees a flood of cases involving slips and falls on ice, snow, and slush during winter conditions.…
Every year, more than 170 billion cell phone texts are sent and received. Each year, an average of 3,000 people die and 450,000 are injured in motor vehicle accidents involving distracted drivers. Ten percent of all drivers who are 15 to 19 years of age involved in fatal crashes were distracted when the accident occurred.…
Following an election cycle in which illegal immigration became a touchstone issue, it seems only appropriate that claims handlers and subrogation professionals have a clear understanding of the many nuances involving workers’ compensation claims made by undocumented employees. Indeed, with more than 11 million such immigrants living and working in the country according to the…
Matthiesen, Wickert & Lehrer, S.C. would like to thank all our clients and local counsel for a wonderful year and we wish you all a Merry Christmas, Happy Hanukkah, and a blessed Holiday Season. Regardless of what Christmas means to you, we hope your Christmas is full of holiday cheer shared with family and friends.…
What we once commonly knew to be true is, well, still true. The Commonwealth Court of Pennsylvania (state appellate court which hears appeals from the Workers’ Compensation Appeals Board (W.C.A.B.)) has just issued a decision as to whether an employer’s future credit rights under § 319 of the Pennsylvania Workers’ Compensation Act extend beyond indemnity…
Stu Price: We’re in a stolen cop car with what is sure to be a missing child in the back. What part of this is cool? Alan Garner: I think the cop car part is pretty cool. Quote from The Hangover Unfortunately, all too often life mimics art. Your insured’s vehicle is safely and legally…
One of the classic holiday movies is National Lampoon’s Christmas Vacation, a story about an ordinary family, the Griswolds, who have big Christmas plans that predictably take a turn for the very (funny) worst. One of the memorable scenes from the movie involves the home decoration skills of the family patriarch, Clark Griswold: Aunt…
We would like to introduce and welcome you to join our new LinkedIn group! It is called Subrogation Support Network. It is a community managed by Matthiesen, Wickert & Lehrer, S.C., that offers insurance professionals a place to interact, discuss subrogation insurance-related topics and issues, ask subrogation questions, and keep abreast of new developments and/or…
Just when you thought that the level of judicial and legislative apathy and/or ignorance with regard to the huge financial benefits of workers’ compensation subrogation for businesses and the economy couldn’t get any higher, the Montana Supreme Court just lowered the bar even further. In a decision which will effectively increase the cost of doing business…
Most states now have mandatory car insurance laws that require all drivers to have some type of insurance. New Hampshire is the last of the 50 states which does not require mandatory automobile liability insurance. Wisconsin was second to last, but as of June 1, 2010, Wisconsin now mandates that drivers purchase auto liability insurance.…
A recent Texas Court of Appeals decision parsing the wording of a workers’ compensation policy’s waiver of subrogation endorsement reminds us that, like an onion, a waiver endorsement has many layers and should be peeled back fully before giving up on subrogation and/or reimbursement potential. In Insurance Co. of the State of Pennsylvania v. Exxon,…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to announce that Richard Schuster has been made a partner of the firm. Rich has been with MWL since 2012, concentrating his practice on commercial and civil defense matters for manufacturers and their insurers, including overseeing the firm’s involvement with the litigation surrounding the 2013 ammonium nitrate…
The hearing is underway and the injured worker claims a significant injury after a slip and fall. She complains about her inability to work due to the immense pain in her lower back and left ankle. This is her third workplace injury within the past decade. She claims to remember climbing a step stool before…
Back in September 2013, we posted an article entitled “Do Liability Waivers Really Work?” The article served as a primer and cautionary tale regarding the enforceability of common liability waivers. These are the agreements required by gyms, martial arts facilities, climbing gyms, trampoline parks, and similar businesses geared toward physical activity that can be inherently…
The Wisconsin Supreme Court has recently had occasion to clarify the issue of whether extrinsic evidence can be considered in determining an insurer’s duty to defend in the case of Water Well Solutions Serv., Inc. v. Consolidated Ins. Co., 2016 WI 54 (2016). In this case, the Court refused to modify the longstanding “four-corners” rule…
Hawai’i. There is no place like it on earth. It is the most remote population center on the face of the planet, 2,400 miles from the nearest anything. It has the most diverse population on earth, with no racial or ethnic group constituting a majority and a continuing effort underway to create a separate region…
In 2010, researchers at the University of Michigan hypothesized that it is theoretically possible to conjure particles from a complete vacuum under the right circumstances. Performing such a feat in the world of subrogation might seem improbable, but subrogation theory has become subrogation law where MCS-90 Endorsements are concerned. Have you ever spent countless hours…
As a means of raising revenue, particularly during times of economic crisis, a handful of states employ, and many states repeatedly revisit, the dubious and counter-productive scheme of imposing a tax on professional services, whether as a sales tax (including lifting an exemption in many states’ sales tax code for professional services), use tax, excise…
When a product fails and causes damages to other property, a straightforward property damage claim takes on a whole new dimension. Recovering property damage claims related to a product liability defect are some of the most complicated, challenging, and difficult recoveries to make in the field of subrogation. Often, you are dealing with a manufacturer…
Until recently, Connecticut’s Workers’ Compensation Subrogation Statute, § 31-293, labored under the judicial interpretation by which an employer was allowed to file a third-party action, but its workers’ compensation carrier was not. Subrogated carriers had to hope that the employee or employer was willing to bring an action because if the employee didn’t file, and…
Ronald Reagan famously said, “The most terrifying words in the English language are: I’m from the government and I’m here to help.” Government has become almost synonymous with ineptitude. So it should be no surprise that every day people are injured, killed, or sustain property damage at the hands of careless government employees. Damages available to…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to announce that Richard Schuster has been made a partner of the firm. Rich has been with MWL since 2012, concentrating his practice on large loss subrogation and product liability cases, including overseeing the firm’s involvement with the subrogation litigation surrounding the 2013 ammonium nitrate explosion at…
Matthiesen, Wickert & Lehrer, S.C. has consistently advised its Louisiana clients to always intervene in third-party tort suits to recover workers’ compensation benefits, as some published opinions have suggested that a workers’ compensation carrier waives its right of recovery if it does not intervene after receiving notice of suit. A recent case from the Louisiana…
On August 8, 2016, the 11th Circuit issued its opinion in Humana v. Western Heritage, 15-11436 (11th Cir., August 8, 2016). It is a major victory for Medicare Advantage Organizations (MOAs) and a major blow to liability insurers. Matthiesen, Wickert & Lehrer (MWL) attorney, Ryan Woody, filed an amicus brief for America’s Health Insurance Plans…
Insurance subrogation professionals are routinely faced with minimum limits scenarios which complicate otherwise straightforward subrogation cases. When a third-party liability carrier’s insurance limits are insufficient to pay the claims of multiple claimants, the carrier must begin to assess the hierarchy of the claimants. In order to do this, the carrier must be familiar with the…
The amount and dollar value of insurance claims relating to property loss alone dwarf all other lines of insurance. Water losses in the U.S. result in more than $9 billion in property damage annually. Fire losses result in more than $12 billion in annual damage. Hailstorms cause over $1 billion in damage. Homeowners’ and commercial…
The Ant And The Grasshopper: Improving Plan Subrogation Language For The Winter Ahead In a field one summer’s day a grasshopper was hopping about, chirping and singing to its heart’s content. A group of ants walked by, grunting as they struggled to carry plump kernels of corn. “Where are you going with those heavy things?”…
“Move fast and break things. Unless you are breaking stuff, you are not moving fast enough,” Mark Zuckerberg famously said. Good advice, unless you’re a residential moving company. The residential home moving industry is changing rapidly and it’s essential that the subrogation professional keep up to date on the most recent developments. For decades, the…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to announce that Sara Schmeling has joined the firm as an insurance litigation associate. Sara’s practice areas include insurance litigation and subrogation of all lines of insurance, with an emphasis on workers’ compensation subrogation. Sara obtained her Bachelor of Science in Psychology and Political Science (with an…
In a recent major water and mold damage subrogation case in New York, the focus was on negligent maintenance and the failure to detect a major defect in a commercial HVAC system, which ultimately led to major water and mold damage and a large subrogation claim. The interesting aspect of this case, aside from the…
While drafting this article, I looked up at a video monitor in my office which streams Fox News. Two men playing Pokémon Go had just fallen off a cliff in Encinitas, California. It was not reported at the time what injuries they sustained, but the men were taken to a trauma center. One of them…
In the 2003 Walt Disney blockbuster Pirates of the Caribbean: The Curse of the Black Pearl, Hector Barbossa and the crew of the Black Pearl are in a cavern trying to reverse their curse when Elizabeth invokes the right of parley and notes that, according to the Pirate Code, she must be taken to their…
Lauren M. Davis has joined the insurance litigation team at Matthiesen, Wickert & Lehrer, S.C. as an associate attorney in our New Orleans branch office. Formerly a litigator with Hangartner, Rydberg, and Terrell and a defense attorney with Sutterfield & Webb, LLC, in New Orleans, Lauren joins the subrogation team at MWL with experience in…
Even Non-Employer Contractors Are Entitled To Exclusive Remedy Protection Exclusive remedy protection is being handed out to non-employers like candy on Halloween by courts and legislatures across the nation, and Ohio is the latest state to join the giveaway. On April 19, 2016, the Ohio Supreme Court ruled for the first time that on construction…
Until recently, the District of Columbia workers’ compensation subrogation statute, found at § 32-1535, was silent on how or whether attorneys’ fees/costs are to be charged or apportioned when the worker files suit. When an employer or workers’ compensation insurance carrier initiates an action or negotiates a settlement when it is received and assigned, because…
Trucking insurers issuing motor carrier policies which contain MCS-90 Endorsements may be overlooking significant subrogation and recovery opportunities. MCS-90 subrogation is a fascinating and under-utilized means of recovery that can significantly increase an insurance carrier’s bottom line. Understanding the history behind and developing a working knowledge of MCS-90 Endorsements is essential for any adjuster or subrogation…
The Exclusive Remedy Rule is neither exclusive nor a remedy. What began as a cornerstone of the social insurance experiment known as workers’ compensation has become so riddled with leaks that employers and their insurers often give up on subrogation in order to protect themselves from liability they were never intended to bear. One of…
It actually makes very little legal sense and for all intents and purposes is fundamentally antithetical to a free market, capitalist society. Its underpinnings can be traced to Germany’s Second Reich and its Prime Minister, Otto Von Bismarck. It has ties to Marxism and Socialism and its evolution has been fueled by populism and social…
Virginia Court of Appeals Defies Trial Lawyers Association The Virginia Court of Appeals just gave a big boost in the arm to Special Arbitration of workers’ compensation liens. Article First (Compulsory Provisions) of the Special Rules and Regulations (revised January 3, 2006) states: Upon settlement of a claim or suit, signatory companies must submit any…
For over a decade, state and federal courts throughout the nation have wrestled with the issue of whether FEHBA (Federal Employees Health Benefit Act of 1959) preempts state subrogation laws. 5 U.S.C. §§ 8901-8914. Both Missouri and Arizona are well-known anti-subrogation states. See Wayne v. Bankers Multiple Line Ins. Co., 796 S.W.2d 660 (Mo. Ct.…
Gary Wickert will be presenting a live webinar on New Jersey Automobile Subrogation: The Nuts and Bolts on June 14, 2016 from 10:00-11:00 a.m. (CDT). This webinar is free to attend and will cover topics such as PIP, Med Pay, UM/UIM, property claims, deductible reimbursement, no-fault subrogation, suspension of driver’s licenses, and much more. Special…
James Bond is not the only one with a License to Kill. Professional sports teams sell season ticket packages, often in the form of a seat license to a specific seat in the franchise stadium for every regular season game played in the stadium. The license/ticket typically gives the purchaser a restricted interest in a…
Ignorance of the law is no excuse – unless you’re the Nebraska Court of Appeals. On March 8, 2016, the Court, in perhaps one of the most illogical and biased decisions in many years, held that a trial court can wipe out a workers’ compensation lien for literally any reason – including the fact that…
The recent consolidated bellwether trial of the DePuy Pinnacle Hip Implant multi-district litigation concluded on Thursday, March 17, 2016, with a whopping $502 million verdict against defendants DePuy Orthopaedics, Inc. and Johnson & Johnson. Following months of trial in the Northern District of Texas, the jury found in favor of all eight plaintiffs — five…
The World of George Jetson Has Arrived! Imagine beginning your day with a cup of coffee in the car on the way to work, watching the morning news from a holographic projection on the windshield while making notes in preparation for a 9:00 a.m. meeting. All this while your car follows a preset route, automatically…
While not related to subrogation, we felt that an interesting article about a hypothetical situation in which the peculiar intersection of constitutional, federal, and state law creates an opportunity for the “perfect crime.” In 2005, Michigan State University College of Law Associate Professor Brian C. Kalt hypothesized a “criminal” act that would not be subject…
In the 1970s, the Oklahoma Sooners’ NCAA football team successfully began implementing a new offensive system known as the “option offense.” Sooner Coach Barry Switzer has been credited by many for having perfected the use of the wishbone offense, a staple of option offenses. Forty years later, the option returned to Oklahoma, but this time…
The second bellwether trial of the DePuy Pinnacle Hip Implant multi-district litigation concluded on Thursday, March 17, 2016, with a whopping $502 million verdict against defendants DePuy Orthopaedics, Inc. and Johnson & Johnson. Following months of trial in the Northern District of Texas, the jury found in favor of all eight plaintiffs — five hip…
The Future Of Auto Insurance In No-Fault States In its widest sense, “no-fault insurance” is a term used to describe any auto insurance coverage under which policyholders are paid for personal injuries and property damage they sustain in accidents through their own insurance company, regardless of fault. In many ways, it is like first-party coverage. However,…
Subrogation against a negligent tenant by a landlord’s property insurer is a major source of recovery income for many insurers. Unfortunately, as is all too often the case, the law in many states has been developed in such a way to make recovery opportunities very difficult, if not impossible, to pursue. The ability of a…
In Moya v. Aurora Healthcare, Inc. and HealthPort Technologies, LLC, Appeal No. 2014AP2236, the Wisconsin Court of Appeals decided a case involving the construction and interpretation of Wis. Stats. §§ 146.81-146.83 to determine whether personal injury attorneys are exempt from the $8 certification and $20 retrieval fees under the health records statute § 146.83(3f) when an…
Allstate’s insured was involved in an automobile accident with a plaintiff in which it was alleged that Allstate’s insured was negligent causing injury to the plaintiff. Allstate had issued a policy of liability insurance to the driver and her husband, which was in full force and effect at the time of the accident. The vehicle…
Since 1939, § 15 has provided that a workers’ compensation carrier receives first priority recovery from a third-party settlement or judgment. In particular, it provides that “the sum recovered” in the third-party action (also defined as the “gross sum received in payment for the injury…shall be for the benefit of the insurer, unless such sum…
As someone whose childhood winter chores included “shoveling the roof”, I have an intimate familiarity with the concept of the potential for roof collapse from the weight of excessive snow and ice. Winter storms this season have produced all-time record snowfall records in Maryland, Pennsylvania, and parts of New York. Winter Storm Jonas is the…
During my first decade of practicing law in Texas, I enjoyed a good professional relationship with Texas Governor Greg Abbott. In those days, Greg, who is my age and earned his law degree one year after me, was a young defense attorney with the Houston law firm of Butler Binion, and was opposite me in…
Dealing with a situation that is annoying, if nothing else, to quite a few businesses, a Wisconsin Court of Appeals decision recently upheld an exclusion within an insurance policy that precluded coverage for allegations that it’s insured violated the Telephone Consumer Protection Act (TCPA) by continually sending faxes (“blast faxes”) without the permission or consent…
Wisconsin’s so-called dog bite statute entitled “Owner’s Liability for Damage Caused by Dog” is currently set forth in Wis. Stat. § 174.02. Section 174.02(1)(a) deals with a “first bite” of a dog while § 174.02(1)(b) deals with a “second bite” of a dog with the owner or keeper of the dog being required to have…
In the case of Lyle and Carol Hird v. American Family Mutual Insurance Company, Appeal No. 2014AP2402, a 2015 Wisconsin Court of Appeals decision dealt with allegations of (1) bad faith; (2) Wis. Stat. § 628.46(1) statutory interest; and (3) Wisconsin’s Offer of Settlement Statute – Wis. Stat. § 807.01. Taking into account the very…
Gary L. Wickert will be presenting a complimentary webinar on February 25, 2016 at 10:00 a.m. (Central) on Introduction To Property and Casualty Subrogation. From recognition of subrogation in difficult fact settings to effective and thorough, yet cost-effective, investigation of natural disasters, this 90-minute webinar will focus on training the claims/subrogation professional on when, how, and…
Just when you thought workers’ compensation subrogation in this country’s most difficult state could not get any more difficult, it does. In Zaldivar v. Prickett, 774 S.E.2d 688 (Ga. 2015), Prickett sued Zaldivar for injuries resulting from a 2009 work-related auto accident. The defendant blamed Prickett’s employer, Overhead Door Company, which was not a party…
Many years ago, a lawyer argued that the long-standing Texas rule prohibiting recovery of damages for loss-of-use of personal property, unless the property was a total loss or destroyed was unfair. City of Canadian v. Guthrie, 87 S.W.2d 316 (Tex. Civ. App. 1932). His client’s one-eyed, underfed mare lived a simple life. One night, however, she…
Trial lawyers are happy. On January 20, 2016, the U.S. Supreme Court issued their written opinion in the long-anticipated ERISA subrogation case of Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 2016 WL 228344 (Jan. 20, 2016). The U.S. Supreme Court was asked to decide whether a Plan beneficiary is…
MWL would like to thank all our clients and local counsel for a wonderful year in 2016 and we wish you all a Merry Christmas, Happy Hanukkah, and a blessed Holiday Season. Regardless of what Christmas means to you, we hope your Christmas is full of holiday cheer shared with family and friends. For us…
Matthiesen, Wickert & Lehrer, S.C. continues to grow. We are proud to announce the addition of Stephen A. Smith. Steve is an experienced litigator formerly with J. Peterman Legal Group, Ltd. (f/k/a Bloomer Peterman, S.C.) in Brookfield, Wisconsin. Steve attended Oklahoma City University School of Law, where he received his J.D., and the University of…
With holiday shopping in full swing and Christmas a week away, there are growing concerns over the safety of one of the season’s hottest items – hoverboards. The year’s “must have” gift harkens back to the popular ‘80s movie Back To The Future II and has captured the imagination of young and old alike, their popularity…
Occasionally, we post articles on legal subjects other than insurance subrogation because they are of such a wide interest that it would not be right to avoid comment on them. Such a topic is the meteoric growth of daily fantasy sports (DFS) such as DraftKings and FanDuel. In 2015, nearly 60 million people played fantasy…
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…
A new Georgia Supreme Court decision has made it easier to defend third-party tort actions involving injured employees by reducing the recoveries when employer negligence contributes the work-related injury. Walker v. Tensor Mach., Ltd., 2015 WL 7135149 (Ga. 2015). Jock L. Walker was injured at work in August 2010 while he operated a machine that…
During the brutal winter of 1620-21, Miles Standish, the English military officer hired by the Pilgrims as military advisor for Plymouth Colony and one of the Mayflower passengers, played a leading role in the administration and defense of the colony. His wife, Rose, suffered from sickness and fever throughout most of the winter, and when…
The owner of the vintage 1968 57-foot Chris Craft Constellation Yacht could barely recognize the custom mahogany plank craftsmanship of his boat through the blackened ash and the tears. Yet it was the owner’s insurance company who should have been crying. After being put in dry storage for the winter at a local marina, a…
In the normal course of American jurisprudence, legislation is passed and courts decide cases according to the laws that have been passed. It seems that in Massachusetts, they have it backwards. Section 15 of the Massachusetts’ Workers’ Compensation Act provides unequivocally that in third-party tort cases, “the sum recovered shall be for the benefit of…
The Delaware Department of Insurance (“DOI”) is threatening to take action against those who do not abide by state mandatory arbitration law. On September 1, 2015, the Delaware DOI released a bulletin to remind all insurers writing the coverages required under 21 Del. C. § 2118 that they are required to submit to mandatory arbitration…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to announce that Ashton Kirsch has joined the firm as an insurance litigation associate. Ashton’s practice areas include insurance litigation, subrogation, workers’ compensation, health insurance and ERISA. Ashton obtained his Bachelor of Arts in Political Science and History in 2011 from the University of Wisconsin–Madison in Madison,…
We receive many questions from clients regarding Minnesota subrogation claims, including relevant statutes of limitations. One of the most frequent questions I receive has to do with the Minnesota statute of limitations for personal injury actions. For subrogation professionals outside Minnesota, its statutory statutes of limitations may not be clear. A quick, surface reading of…
Statute of Limitations Could Run Before Accident Occurs. It doesn’t seem possible that a statute of limitations could expire even before a loss is suffered and damages are incurred. However, that is the case in Georgia due to some questionable case law being used by defendants to escape liability. Subrogation professionals everywhere should make a…
James T. Busenlener, the managing partner of our Louisiana branch office, will be presenting a live webinar on Louisiana Automobile Subrogation: The Nuts and Bolts on November 17, 2015 from 10:00-11:00 a.m. (CST). This webinar is free to attend and will cover topics such as PIP, Med Pay, UM/UIM, property claims, deductible reimbursement, no-fault subrogation,…
When The Tortfeasor Dies, Your Subrogation Claim Doesn’t Need To Die Too! The author, Franz Kafka, known for his dark situations which many people relate to, once wrote a very short story about omnipotent power floating just beyond our reach. You go to the city to see the law. Upon arrival outside the law building,…
It is said that compromise is the best and cheapest lawyer. Workers’ compensation claim’s handlers depend on compromise in their handling of disputed compensation claims. Recently, however, we have seen a growing number of our clients settling workers’ compensation claims without taking proper precautions to protect valuable subrogation rights. They often assume that money paid…
On Wednesday, September 16, 2015, a Western District of North Carolina Federal Court jury returned a defense verdict on behalf of a Taiwanese table saw manufacturer and its U.S. subsidiary, holding that Attorney Richard Schuster’s clients were not negligent in their design of a table saw — a result that is making news across the…
When Driving Through Somebody’s Living Room Is Not Negligence Every day in America vehicles leave the roadway, travel across well-manicured lawns, smash through garden sheds, patio furniture, swing sets, and plow through the walls of a home, coming to rest inside of somebody’s living room or bedroom. These incidents leave millions of dollars in property…
Believing there is a need for mediation services outside the Milwaukee area, we have established Matthiesen, Wickert & Lehrer, S.C. Mediation Services in Hartford, Wisconsin. With Hartford’s central and convenient location, it allows us to provide reasonably priced ($275 per hour) mediation services throughout Southeastern and Central Wisconsin. Brad Matthiesen, having served as a trial…
Matthiesen, Wickert & Lehrer, S.C. is growing. We are proud to announce the addition of several new attorneys. We appreciate the continued trust and confidence our clients have shown in our abilities to maximize their subrogation recoveries anywhere within North America, and the increased recovery business entrusted to us has necessitated the addition of several…
Complex litigation and subrogation cases involving product liability and/or technical issues frequently require opinion testimony in the form of expert witnesses. The role of the expert is to educate lay judges and juries who lack knowledge about a particular issue or technology involved in a case. This includes everything from the design of a complex…
Mediation has become an integral and very effective tool in the arsenal of the subrogation professional. We find that many of our clients have a great deal of mediation experience, and many have attended mediation without the benefit of having subrogation counsel present – with mixed results. Some years ago, while applying for board certification…
On March 23, 2015, Oregon Governor Kate Brown signed into law Senate Bill 411, making substantial changes to Oregon’s Personal Injury Protection (“PIP”) and uninsured/underinsured (“UM/UIM”) statutes. The Bill amends several Oregon statutes and doubles the PIP medical benefit period from one year to two years. It also changes Oregon UM policies from a “difference…
The campaign to establish liability under the Fair Debt Collection Practices Act (FDCPA) in connection with subrogation took an interesting turn recently, but ultimately reached another dead end. The federal judiciary has made it clear, time and again, that the FDCPA does not apply to third-party subrogation claims because they are not “debts” as defined…
It is entitled “An Act to clarify reimbursement of workers’ compensation insurers to prevent double recovery by injured workers in third-party cases”, but, as with most deceptive titles to pieces of legislation, it is more of a license for trial lawyers to destroy a time-honored right of reimbursement promised to small businesses across Massachusetts. In…
Juris Publishing, Inc. has released the latest and most comprehensive edition of Workers’ Compensation Subrogation In All 50 States, the firm’s unique treatise on the subject. The book is carried on the shelves of every law school in the country and is considered the authoritative resource on the subject. There are very few areas in…
Approximately 12% to 14% of all accidents result in a total loss, a number which has been trending upward since 2002. Insurance companies faced with first-party claims on policies 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. In…
Republican Ohio Governor John Kasich sure doesn’t act like a Republican. When a 2012 ruling by the U.S. Supreme Court made it relatively simple for states to reject Obamacare’s costly expansion of Medicare on the backs of state taxpayers, many governors took advantage of the opportunity. Not Governor Kasich. Despite emphasizing opposition to Obamacare in…
Oklahoma has seen its share of changes in its workers’ compensation laws of recent. 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 operate in parallel with existing Title 85, and once again reform that state’s workers’ compensation laws…
The Court in the case of Dilger v. Metropolitan Property and Casualty Insurance Company (“Metropolitan”), Appeal No. 2014AP1851, determined that a claimant, upon proper compliance with the statutory requirements, is entitled to interest pursuant to Wis. Stat. § 628.46(1). In this particular case, the plaintiff, Dilger, was a police officer for the City of Brookfield…
In a lawsuit setting forth a common factual scenario found in many civil cases, the court had an opportunity and did decide with specificity the applicable provisions in Chapter 814 of the Wisconsin Statutes. In the case of Weber v. Auto-Owners Insurance Company (“Auto-Owners”), Appeal No. 2014AP1953, the Appellate Court dealt with a situation wherein…
In a recent Wisconsin case, Smith v. Acuity Insurance, Appeal No. 2014AP1587, the Court was confronted with an interpretation over the “drive other car” exclusion within a policy issued by Acuity Insurance. In this case, the plaintiff, while riding a motorcycle, was involved in a motor vehicle accident with another vehicle who was covered by…
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. Since the advent of digital photography, photographs have played a big role on the internet. Click. Upload. Post. Never has it been so easy and inexpensive…
Future Credit Reduced By Health Insurance Payments On April 1, 2015, the South Dakota Supreme Court declared for the first time that medical expenses paid by health insurance plans, and not by an injured employee personally, can be applied to the reduce the workers’ compensation carrier’s statutory future offset as established in S.D.C.L. § 62-4-38.…
When and whether a vehicle involved in a collision is considered to be “totaled” for first-party insurance purposes is an issue of great angst and confusion for most consumers. It is one of the most frequent questions we receive. Many of our clients’ insureds experience nightmares when older, functioning automobiles are being “totaled” simply because…
It is only the tip of the iceberg. 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 and more common, both…
On April 20, 2015, the Montana Legislature passed Senate Bill 288, making it easier for Montana’s employers to subrogate workers’ compensation claims. Trial lawyers cried foul, and on April 29, 2015, Democrat Governor Steve Bullock vetoed the business-friendly Bill. In an effort to explain to Montana residents that their governor does not understand the vital…
Gary Wickert will be presenting a complimentary webinar on Colorado Automobile Subrogation: The Nuts And Bolts on July 14, 2015 from 10:00-11:00 a.m. (CDT). This webinar will cover the nuts and bolts of auto subrogation in Colorado, touching on every topic imaginable, including PIP, Med Pay, UM/UIM, property claims, deductible reimbursement, no-fault subrogation, suspension of driver’s…
Matthiesen, Wickert & Lehrer, S.C.’s (“MWL”) team of seasoned litigators continue to assist employers to defy arduous hurdles presented by third-party contribution suits. When faced with a personal injury claim from an injured employee, defendant-tortfeasors can sometimes go on the offensive. Depending on the circumstances, defendants often use third-party complaints to drag employers and their…
On April 20, 2015, the Montana Legislature passed Senate Bill 288, making it easier for Montana’s employers to subrogate workers’ compensation claims. Trial lawyers cried foul, and on April 29, 2015, Democrat Governor Steve Bullock vetoed the business-friendly Bill. In an effort to explain to Montana residents that their governor does not understand the vital…
Imagine opening the door to your condominium (“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…
Montana businesses are learning the hard way the cost of electing a Democrat governor. The Montana legislature represents a solid, common sense, Republican majority which understands the vital role that a business-friendly environment plays in stimulating the real job creators – small businesses. On April 20, 2015, the Legislature passed Senate Bill 288, which made…
The ongoing saga in Pennsylvania – colloquially referred to as the “reluctant plaintiff problem” – has perhaps come to an end. Section 671 of Pennsylvania’s Workers’ Compensation Subrogation Statute couldn’t be clearer. It unambiguously states, “…the employer shall be subrogated to the right of the employee.” Section 319 of the Act has appropriately been described…
The well-orchestrated attack on subrogation continues. Trial lawyer listservs, legal conferences, and organizational efforts to combat subrogation on all fronts have resulted in a rash of class action suits aimed at subrogated carriers based on alleged violations of the Made Whole Doctrine, alleged failures to reimburse deductibles, and alleged violations of fair debt collection practices…
Tort and subrogation cases continue to be heavily mined and booby-trapped with potential spoliation danger. However, the law in this area is far from clear. In the case of Brookshire Brothers v. Aldridge, 438 S.W.3d 9 (Tex. 2014), Jerry Aldridge slipped and fell at a Brookshire Brothers’ grocery store on September 2, 2004. On the…
This month, Claimwire.com featured an in-depth and personal interview with Gary L. Wickert, partner at Matthiesen, Wickert & Lehrer, S.C. (“MWL”). Claimwire serves the insurance industry by providing forms, news, resources, and vendor information to assist insurance professionals involved in the field of workers’ compensation. Similar to MWL’s own website, Claimwire is a relatively new site that…
The claims history of most domestic insurance carriers is littered with billion dollar claims as a result of catastrophic losses caused by natural disasters. When God sends a hurricane, tornado, flood, or naturally-occurring fire, the resulting losses can be enough to put many insurance companies into receivership. With no third parties or obvious subrogation potential,…
Matthiesen, Wickert & Lehrer, S.C. would like to wish all of our clients and friends a very blessed Easter. While Easter means different things to different people, we celebrate the Good News which Easter represents. It is the fulfillment of the greatest Promise ever made – the celebration of the resurrection of Jesus Christ, the…
What if the deck was stacked in such a way that insureds and tortfeasors could gerrymander and structure a tort settlement so as to ensure that the insured would never be “made whole”? Surely such ability would be a legal absurdity in a state where subrogation is supposedly favored for all of the societal benefits…
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) partners Ryan Woody and Jim Busenlener won a major victory for Medicare Advantage Organizations (“MAOs”). In Collins v. Wellcare Healthcare Plans, Inc., 2014 WL 7239426 (E.D. La. Dec. 16, 2014), the federal court recognized, for the first time, that MAOs are entitled to bring a Private Cause of Action…
Complex litigation and subrogation cases involving product liability and/or technical issues frequently require opinion testimony in the form of expert witnesses. The role of the expert is to educate lay judges and juries who lack knowledge about a particular issue or technology involved in a case. This includes everything from the design of a complex…
April Toy will be presenting a complimentary webinar on Introduction To Cargo Subrogation on May 7, 2015 from 10:00-11:00 a.m. (CST). This webinar will introduce the subrogation professional to the basic concepts of subrogating cargo claims under the Carmack Amendment and Carriage of Goods Sea Act (COGSA). The webinar will identify the major pitfalls that can befall…
One of the recurring questions Matthiesen, Wickert & Lehrer, S.C. (MWL) 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…
Plan For The Best, Expect The Worst, And Prepare To Be Surprised Thomas Reid once said, “There is no greater impediment to the advancement of knowledge than the ambiguity of words.” Nowhere is this truism as important than in the settlement of third-party lawsuits involving workers’ compensation carriers’ subrogation liens and future credits. For lack…
There is a great deal of confusion in Louisiana regarding whether a workers’ compensation carrier can subrogate against or receive reimbursement from the proceeds of an uninsured or underinsured (UM/UIM) automobile policy. The Louisiana Supreme Court has unequivocally stated that a UM carrier is considered a third person under Louisiana workers’ compensation law. Travelers Ins.…
More than 1,000 vehicles a day are damaged by paint overspray in the United States, resulting in more than one-half of a billion dollars in damage and insurance claims annually. Airborne paint overspray results from all sorts of industrial, commercial, and private paint jobs, such as bridges, water towers, and other large and inconveniently located…
The independent contractor rule in Wisconsin generally provides that “one who contracts for the services of an independent contractor is not liable to others for the acts of the independent contractor.” Lofy v. Joint School District 2, 42 Wis.2d 253, 166 N.W.2d 809 (Wis. 1969). However, an exception to this rule has been found if…
In Wilson Mutual v. Falk, et al., 2014 WI 136, 2014, the insureds were owners and operators of a dairy farm in Washington County, Wisconsin, and the defendants were all neighbors of the insureds. In early 2011, the insureds spread liquid cow manure onto their farm fields for the purpose of fertilization. In an attempt…
“Force-placed insurance” is an insurance policy placed by a lender or bank on a home or vehicle when the property owners’ own insurance is cancelled, has lapsed or is deemed insufficient. This insurance insures the lender and allows the lender to protect its financial interest in the property. It is rarely called the same thing…
Complex litigation and subrogation cases involving product liability and/or technical issues frequently require opinion testimony in the form of expert witnesses. The role of the expert is to educate lay judges and juries who lack knowledge about a particular issue or technology involved in a case. This includes everything from the design of a complex…
For years, Pennsylvania products liability law has been split between state and federal courts with regard to the applicable standard for proving a strict liability design defect case. Pennsylvania State Courts followed common law precedent flowing from a 1978 case, implementing the principles of the Restatement of Torts (Second). In 2009, the U.S Court of…
Subrogating against uninsured drivers is one of the less glamorous aspects of automobile insurance subrogation. It is the pariah of our industry and could easily be featured on the Discovery Channel series, Dirty Jobs. Initiating subrogation against uninsured and judgment-proof drivers is often nothing more than an exercise in futility, and frequently involves nothing more…
Ryan Woody will be presenting a complimentary webinar entitled Medicare Advantage Update: Enforcing Your Rights Under The Medicare Secondary Payer Act on February 24, 2015 from 10:00-11:00 a.m. (CST). This webinar will discuss several recent decisions involving the rights of Medicare Advantage Organizations (MAOs) and their enforcement rights under the Medicare Secondary Payer Act. It will…
In Schaefer v. Taylor and Amica Mutual Ins. Co., 2013 AP 2419 (2014), originating in Dane County, Wisconsin, the plaintiff was injured when the defendant struck her while snowboarding. The defendant was 21 and a full-time student. The defendant’s parents held a homeowner’s policy issued by Amica. The subject policy defined “insured” as “A student…
Arizona law imposes strict liability on dog owners for injuries and bites caused by their dog pursuant to A.R.S. §§ 11-1020 and 11-1025. Section 11-1020 states “injury to any person or damage to any property by a dog while at large shall be the full responsibility of the dog owner or person or persons responsible…
In John Doe v. Archdiocese of Milwaukee, No. 13-3783 (2014), “John Doe” settled his sexual abuse claims against the Archdiocese of Milwaukee after participating in voluntary mediation. Doe signed a settlement agreement containing a confidentiality clause, another clause providing that the parties could not introduce as evidence in later proceedings matters including views expressed or…
For those who are not aware, in 2013, Claims Journal’s online magazine asked Gary Wickert to begin a new monthly column focusing on subrogation and related claims and insurance topics. Gary’s column entitled “The Road To Recovery” can be found HERE. The column was very well-received and provides subrogation with a very widely-read medium in…
Matthiesen, Wickert & Lehrer, S.C. would like to thank all our clients and local counsel for a wonderful year and we wish you all a Merry Christmas, Happy Hanukkah, and a blessed Holiday Season. Regardless of what Christmas means to you, we hope your Christmas is full of holiday cheer shared with family and friends. For…
The recent riots in Ferguson, Missouri have resulted in property damage in excess of $5 million, and the total is climbing. However, these riots don’t even come close to the $1.2 billion in damages during the costliest civil disorder in history, the 1992 Los Angeles riots which resulted from the acquittal of four Los Angeles…
Many of our readers know how frustrating it can be to secure a judgment against a tortfeasor company only to see that company close down. However, an increasingly common scenario sees that same “company” resurrect itself as a new company shortly afterwards. Normally, the law protects successor corporations from the liabilities of its predecessors, and…
While Matthiesen, Wickert & Lehrer, S.C. (MWL) attorneys are actively pursuing subrogation and reimbursement claims around the country for health insurers and plans alike, we are increasingly being asked to defend clients from out-of-network lawsuits by providers. These out-of-network or “usual, customary and reasonable charges” cases are not novel. In recent memory, these claims have…
During the brutal winter of 1620-21, Miles Standish, the English military officer hired by the Pilgrims as military advisor for Plymouth Colony and one of the Mayflower passengers, played a leading role in the administration and defense of the colony. His wife, Rose, suffered from sickness and fever throughout most of the winter, and when…
Complex litigation and subrogation cases involving product liability and/or technical issues frequently require opinion testimony in the form of expert witnesses. The role of the expert is to educate lay judges and juries who lack knowledge about a particular issue or technology involved in a case. This includes everything from the design of a complex…
Referring a subrogation file to Matthiesen, Wickert & Lehrer, S.C. (MWL) is now easier than ever! You can refer a file through our website using our REFER A FILE feature. This feature was recently upgraded to speed up the process and the steps to submit a file have been reduced to two steps versus the three steps it had before. Utilizing…
An Indiana Court of Appeals decision issued on October 28, 2014 changes the landscape of landlord/tenant subrogation in the Hoosier State. For years, Indiana allowed an insurer to bring a subrogation claim against a tenant. LBM Realty, LLC v. Mannia, 981 N.E.2d 569 (Ind. App. 2012). A 1996 Court of Appeals decision appeared to announce…
On June 16, 2014, a Virginia man was pulled over by the police for running a red light while driving in a funeral procession. As a result, R.G. Spinner missed his great-grandmother’s burial. The Alexandria police officer pulled behind Spinner with his red and blue emergency lights flashing after witnessing him drive through a red…
Many of our clients are members of Arbitration Forums, Inc. (AF), a nonprofit, private arbitration organization that facilitates arbitration hearings between its members. Companies can be a part of a number of different programs, including arbitrating property damage disputes. By joining AF, a member company signs a Property Subrogation Arbitration Agreement (Property Program). The signatory…
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…
A new Texas Supreme Court decision in Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 2014 WL 4116839 (Tex. 2014) narrows the stranglehold of the Economic Loss Doctrine (ELD) and states that the ELD precludes recovery in tort for economic losses resulting from a party’s failure to perform under a contract when the harm consists…
In Humana v. Farmers Texas County Mutual, et al., 13-cv-006111 (W.D. Tex. Sept. 24, 2014), the plaintiff, a Medicare Advantage Organization (MAO), sought reimbursement from a no-fault automobile insurer. The magistrate judge previously granted the defendant’s motion to dismiss holding that MAOs did not possess a private right of action under the Medicare Secondary Payer…
Governor signs amendment to § 143.24d making arbitration of small auto property claims mandatory but not binding. In 2013, Illinois enacted a new statute requiring the mandatory arbitration of collision subrogation claims involving less than $2,500. 215 I.L.C.S. § 5/143.24d. The new § 143.24d required mandatory, binding arbitration of smaller property subrogation cases between…
Insured motorists are called upon every day to pay their deductibles in order for their carriers to cover the necessary repairs to their motor vehicles after accidents. Many carriers refuse to include those deductibles in the subrogated claims they make against the other motorists involved in accidents with their insureds. Because they are left on…
On June 27, 2013, the Council of the District of Columbia enacted emergency and temporary legislation resulting in an amendment to § 32-1535 which narrows the window during which a workers’ compensation carrier has to file a third-party action. An injured employee had six months after accepting a workers’ compensation award in which to file…
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. To read…
For the time being, trial lawyers are celebrating the recent 2nd Circuit decision in Wurtz v. Rawlings Co., LLC, 2014 WL 3746801 (2nd Cir. 2014), which on July 31st, held that a class action suit seeking to enjoin three defendants from seeking reimbursement of benefits paid under fully-insured health plans based on New York’s anti-subrogation…
Property insurers along all lines could simplify their business practices and lower their overhead considerably by simply paying any and all property damages, claims, expenses, and consequential damages alleged to have been incurred by and in the amounts claimed by their insureds. Obviously, such a practice would be a shortcut to insolvency and would lead…
A recent unpublished and quite puzzling decision from the New Jersey Superior Court, Appellate Division, threw decades of established New Jersey subrogation law into question when it announced that a workers’ compensation carrier has no subrogation/reimbursement rights on the medical portion of a third-party claim against an uninsured/underinsured motorist (UM/UIM) carrier. The Court in Dever…
The Wisconsin Court of Appeals recently had occasion to address the issue of whether “subjective” and/or “objective” intent to cause injury must be found in the context of an intentional act exclusion. In Fetherstone v. Parks, 2014 WI App. 2, the Court interpreted an American Family insurance policy to determine whether a showing of both…
The Wisconsin Supreme Court recently expanded the scope of coverage under auto policies when it held an auto insurer must defend and indemnify a permissive user of the auto who is sued by the named insured. Blasing v. Zurich Amer. Ins. Co., 2014 WI 73, aff’g 2013 WI App 27, 346 Wis.2d 30, 827 N.W.2d…
On July 23, 2014, the Wisconsin Supreme Court decided Data Key Partners v. Permira Advisers LLC, 2014 WI 86. Remarkably, the decision appears to adopt the U.S. Supreme Court’s controversial decision in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). According to the minority opinion, the Court adopted Twombly without it having been briefed…
For nearly twenty years, the plaintiffs’ bar and negligent third parties have been trying to use the Federal Debt Collection Practices Act (FDCPA) as a weapon against legitimate subrogation claims. While the fight continues, two recent federal district court decisions came down in favor of subrogation yet again. Both cases center on a third party’s…
Matthiesen, Wickert & Lehrer, S.C. is proud to announce the addition of two attorneys and two paralegals. We appreciate the continued trust and confidence our clients have shown in our abilities to maximize their subrogation recoveries anywhere within North America. The increased recovery business entrusted to us has necessitated the addition of several experienced legal…
Texas has historically been a very favorable venue for workers’ compensation subrogation. It has not been without its gray areas. In death cases, when an employee dies and either he and/or his surviving family members have received workers’ compensation benefits, a careful analysis is required in order to determine the subrogation and future credit rights…
Trial lawyers are already calling it a “travesty of justice” and I gave two media interviews about its significance within two hours of the decision being published. The truth is, however, the new Wisconsin Supreme Court case which is being decried as allowing a workers’ compensation carrier to “force” an employee to accept a settlement…
Gary Wickert’s was interviewed by the Chicago Tribune for an article published on May 14, 2014 entitled “Insurers Sue Chicago-Area Towns In A Bid To Get Flood Money Saying Municipalities Should’ve Done More Against Flooding”. Read the full article HERE.
Gary Wickert’s article entitled “Gathering Pebbles: Subrogation’s Burden of Proof” was published in the American Educational Institute’s (AEI) Spring 2014 Claims Law Update, which can be viewed HERE. Gary will be speaking at this year’s SCLA Claims Education Conference in San Antonio, presenting on Recognizing Subrogation and Third-Party Liability. This conference is presented by AEI…
Earlier this year, the Arizona Court of Appeals essentially rewrote § 23-1023, Arizona’s workers’ compensation subrogation statute. Prior to its amendment in 2007, this statute provided that the injured employee had only one year after a cause of action accrued to pursue a third-party action. A.R.S. § 23-1023(B). If the employee did not pursue the…
A recent decision by the 5th Circuit Court of Appeals has dramatically expanded a longshore harbor workers’ compensation carrier’s rights of subrogation in Jones Act cases. The Chenevert v. Travelers Indemnity Co., 2014 WL 902873 (5th Cir. 2014) decision declares for the first time that a longshore harbor workers’ compensation carrier has a right of…
My oldest son was recently in Afghanistan as a civilian contractor with Army and Air Force Exchange Service (AAFES). He is one of tens of thousands of employees of civilian contractors working overseas and subject to workers’ compensation under the Defense Base Act (DBA) and War Hazards Compensation Act (WHCA). The U.S. has military personnel…
On June 20, 2014, MWL participated in the AK Memorial Golf Outing at Merrill Golf Course just north of Wausau, Wisconsin. This event was hosted by Liberty Mutual Insurance Company. All proceeds went to college scholarships for local high schoolers. MWL sponsored one of the holes at this outing. Pictured here is Gary Wickert golfing at the hole…
On June 13, 2014, MWL participated in the Washington County Annual Big Brothers and Big Sisters Golf Event and Fundraiser which took place at the Washington County Golf Course in Hartford, Wisconsin. Pictured here are Tim Pagel, Brad Matthiesen, and Doug Lehrer. All proceeds benefit Washington County children. MWL looks forward to participating in this fundraiser every year.
Gary Wickert was recently contacted by Beth Greenfield, a Yahoo News reporter for Yahoo Shine, regarding a new Chicago Transit Authority initiative to hold parents responsible for subway graffiti at the hands of their minor children. Yahoo ran across a chart depicting the parental responsibility laws for all 50 states contained on the Matthiesen, Wickert,…
Health insurers and health insurance professionals can close their eyes and hope that the so-called Patient Protection and Affordable Care Act (ACA) becomes a distant memory in their rear-view mirror, but the truth is that for now, it is the law, and it may be here to stay. While we are told that the number…
Ohio Bureau of Workers’ Comp. v. Shaffer, 2013 WL 5636299 (Ohio App. 2013) Trial lawyers have a stranglehold on Ohio subrogation. Workers’ compensation subrogation in Ohio has gone through major transformations since it was ruled unconstitutional in 2001. Although subrogation is currently a statutory right of carriers and self-insured employers, it has been a bumpy…
In one of last year’s most questionable court decisions, a sharply-divided Illinois Court of Appeals has held that the Common Fund Doctrine applies to Med Pay set-offs. In Scheppler v. Pyle, 2013 IL App. (3d) 110380-U (Ill. App. 2013), Peggy Scheppler (Country Mutual) was involved in an accident with Tom Pyle (American Family). Country Mutual…
Personal Injury Protection (PIP) coverage is mandatory in Pennsylvania. Due to Pennsylvania being an optional or “choice” no-fault state, insureds must choose between “full tort” and “limited tort” options, and PIP coverage must be provided. Pennsylvania, New Jersey, and Kentucky are the only states that have “choice” no-fault laws, also known as an optional modified…
The song we learn in our youth is the song we sing for life. Children often blame others for their mistakes and misdeeds – a desperate effort to shift responsibility and avoid unpleasant consequences. As adults engaging in commerce, we are not much different. It is virtually impossible to find a construction contract which does…
Abraham Lincoln once said, “The best way to get a bad law repealed is to enforce it strictly.” When and whether an injured employee can sue an owner or subcontractor for a work-related injury in Pennsylvania has been a matter of some confusion over the years. It is the latest in a landslide of confusing…
The U.S. government sponsors more than 350 different health Plans covering more than nine million federal employees, retirees, and beneficiaries through the Federal Employees Health Benefit Act of 1959 (FEHBA). 5 U.S.C. §§ 8901-8914. Like it’s counterpart in the private market, ERISA, the FEHBA does not mention or provide for rights of reimbursement or subrogation.…
Matthiesen, Wickert & Lehrer, S.C. would like to wish all of our clients and friends a very blessed Easter. While Easter means different things to different people, we celebrate the Good News which Easter represents. It is the fulfillment of the greatest Promise ever made – the celebration of the resurrection of Jesus Christ, the…
The long-standing and dysfunctional approach to subrogating against foreign manufacturers has become the primary reason why pursuing Chinese manufacturers is difficult and expensive. Many insurers, corporations, and law firms continue to implement tired and ineffective tools in pursuit of these claims. When a catastrophic fire loss is caused by a defective laptop battery manufactured in…
On August 26, 2010, DePuy Orthopaedics, Inc. (DePuy), a division of Johnson & Johnson, issued a voluntary recall of the DePuy ASR™ XL Acetabular System and ASR Hip Resurfacing Device – a total hip replacement system. It involves not only the replacement of the joint (ball and socket), but also the “neck” of the femur.…
Minnesota and Hawaii don’t have a lot in common. However, the Minnesota Court of Appeals – of all places – recently laid down some rather novel and earth-shattering law with regard to PIP subrogation in Hawaii. In American Family Mutual Ins. Co. v. American Automobile Ass’n d/b/a Auto Club Ins. Ass’n, 2013 WL 656493 (Minn.…
Matthiesen, Wickert & Lehrer, S.C. (MWL) proudly announces the opening of its new branch office in New Orleans. The office is located at 101 W. Robert E. Lee Blvd., Ste. 402, in New Orleans on Lake Pontchartrain with convenient access to New Orleans and other Louisiana state and federal courts. While our national subrogation program…
Robert Van Orden v. USAA, 2014 MT 45 (Mont. 2014) Montana has long been one of the toughest states to subrogate in because it has a very strict made whole policy. It is the public policy in Montana that an insured must be totally reimbursed for all losses as well as costs, including attorney fees…
Matthiesen, Wickert & Lehrer, S.C. (MWL) proudly announces the opening of its new branch office in New Orleans. The office is located at 101 W. Robert E. Lee Blvd., Ste. 402, in New Orleans on Lake Pontchartrain with convenient access to New Orleans and other Louisiana state and federal courts. The Louisiana office will be…
In an unanimous decision of the Wisconsin Supreme Court, an asbestos exclusion included in a business owner’s policy was found to preclude coverage. See Phillips v. Parmelee, 2013 WI 105. A review of the Phillips decision reveals that the Wisconsin Supreme Court is willing to uphold insurance policy exclusions if they are written in a…
A recent Wisconsin Supreme Court decision runs counter to it’s usual pro-carrier rulings and held that an insured may stack uninsured/underinsured (UM/UIM) coverage from different polices issued from 2009 through 2011. The decision involved an issue of law that has been in constant flux for the last few years. This article will discuss the history…
Most automobile insurance policies include a provision providing that coverage will only apply if “bodily injury” or “property damage” arises out of the ownership, maintenance or use of an automobile. This requirement has long been the source of the application of unusual facts and arguments. Use of a vehicle seems fairly simplistic, but the various…
Two Texas vehicle owners driving identical vehicles are involved in accidents caused by a negligent tortfeasor. Both contact their insurance company regarding their damaged vehicles. Both must wait for an appraiser to inspect the vehicle and write a report. One vehicle is repairable, the other is considered “totaled.” The owner of the vehicle being repaired…
Third-Party Cause Of Action No Longer Automatically Assigned To Employee After One Year In a mysterious legal sleight of hand that would make David Copperfield envious, 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…
Whether you are investigating a subrogation claim or conducting interviews of injured claimants, being able to record a conversation and refer back to it can be indispensable to the handling of a matter either before or during litigation. Today’s technology makes obtaining clear recordings of conversation with witnesses easy to obtain, and in an industry…
A Christmas-day article in one of our local newspapers drives home the important lesson that a subrogation claim is often won or lost in the short period immediately following a loss. On July 6, 2013, pieces of electrical equipment in the basement of the Milwaukee County Courthouse started on fire, closing the courthouse for days.…
As most subrogation professionals handling auto subrogation in Illinois know, Illinois Senate Bill signed into law effective January 1, 2012 changed subrogation in that state significantly. For the first time, Illinois mandated that in collision subrogation cases involving amounts less than $2,500, recently-enacted § 143.24d now required mandatory arbitration between all auto carriers. That development…
In reviewing a three-year-old property subrogation file for a client recently, we noticed repeated references in the claim notes to the lack of subrogation due to the fact that the insured had agreed to indemnify the tortfeasor for any damages resulting from the relationship between the insured and tortfeasor. Many assume that simply because the…
For those who are not aware, in 2013, Claims Journal’s online magazine asked Gary Wickert to begin a new monthly column focusing on subrogation and related claims and insurance topics. Gary’s column can be found HERE. The column was very well-received and provides subrogation with a very widely-read medium in which to talk shop and lobby…
Following closely on the heels of an unfavorable decision, state legislators in Albany wasted no time embarking on a rescue mission to save New York’s anti-subrogation statute from ERISA preemption. McKinney’s G.O.L. §§ 5-101 and 5-335. The statute, originally enacted in 2009, was purportedly an attempt to protect parties to settlements of tort claims from…
One of the more common misconceptions one hears in the realm of health and accident subrogation is that, when it comes to motor vehicle accidents, “there is no subrogation in Michigan.” No one can deny that the Michigan No-Fault Act presents an abundance of obstacles for a carrier looking to recover medical and wage loss…
Just in time for the holidays! Matthiesen, Wickert & Lehrer, S.C. (MWL) announces the formation of its Diversity and Community Outreach Committee. Its first major project successfully collected nearly 50 toys on behalf of Toys for Tots. These toys will be donated to children from underprivileged families in the community, making the holidays a little…
Matthiesen, Wickert & Lehrer, S.C. would like to thank all of our clients and local counsel for a wonderful year and we wish you all a Merry Christmas, Happy Hanukkah, and a blessed Holiday Season. Regardless of what Christmas means to you, we hope your Christmas is full of holiday cheer shared with family and…
Drastic Re-Write of Comp Law Provides New Subrogation Options In the 1970s, the Oklahoma Sooners’ football team successfully began implementing a new offensive system known as the “option offense.” Sooner Coach Barry Switzer has been credited by many for having perfected the use of the wishbone offense, a staple of option offenses. Forty years later,…
When and whether a vehicle involved in a collision is considered to be “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…
It is said that releases and settlement agreements “use a hundred words when ten would do” and there is a good reason for that. Those drafting the release want to include as much as possible within the future protections, claims released, and indemnity provided by the document. Conversely, those signing the release want to limit…
If you think the recent Congressional civil war over cutting entitlements and spending, raising the debt ceiling (again), and funding Obamacare was a melee, welcome to the ongoing dispute in Pennsylvania over whether a workers’ compensation carrier can initiate the filing of a third-party lawsuit. It’s the usual suspects: trial lawyers vs. subrogation professionals. However,…
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…
Subrogation of Occupational Disease Claims Eliminated “Just when I thought I was out, they pull me back in.” – Al Pacino, Godfather III. In 2005, Missouri amended its statutes and divorced the compensability of occupational disease claims from its statutory workers’ compensation definitions of “accident” and “injury.” A few years later, in the case of…
Kubert v. Best and Colonna, Superior Court of New Jersey Appellate Division, Docket No. A-1128-12T4 FACTS Plaintiffs were seriously injured by an 18-year-old driver who was texting while driving and crossed the centerline of the road. The plaintiffs’ clams for compensation from the young driver had been settled and were no longer part of the…
Liability insurance policies provide insurance coverage only for accidental events and not for personal injury or property damage caused by an intentional act of their insured. To that end, insurance carriers generally include language in their policies providing coverage only if damages are caused by an “occurrence”. The term “occurrence” is generally defined as an…
Gym owners, dance studios, night clubs, martial arts clubs, and other businesses often require their customers to sign liability waivers before they are allowed to engage in potentially dangerous physical activities. However, do these liability waivers really protect business owners from potential liability? In light of a recent Wisconsin Court of Appeals’ Decision, the answer…
The National Association of Subrogation Professionals’ (NASP) 2013 Conference will take place in San Diego, California, November 3-6, 2013. MWL always makes every effort to keep in touch with its clients and we would like to take this opportunity to meet with any of our clients who will be there. If you are an existing MWL client and will be at this…
Urban legends and old wives’ tales are everywhere. If you eat within an hour of swimming, you will get cramps. Chocolate causes acne. Carrots improve your vision. You can catch a cold by standing outside in the cold. You can ruin your eyesight by sitting too close to the television. Toads cause warts. Cracking your…
Until July 30, 2013, Connecticut was still one of the few states which hadn’t officially adopted the equitable Made Whole Doctrine in a subrogation setting. However, the new Supreme Court decision in Fireman’s Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc., 2013 WL 3818112 (Conn. 2013) has changed that. In their recently-released decision, the…
The Common Fund Doctrine is an exception to the “American Rule,” which obligates each party in a lawsuit to pay its own attorneys’ fees. This Doctrine is applicable in situations where one party’s success in litigation creates a “common fund” which benefits a third party. The third party is obligated to pay a pro rata…
Gary L. Wickert will be presenting a complimentary live webinar on “New York Automobile Subrogation” from 10:00-11:00 a.m. (CDT) on October 23, 2013. Noah Gradofsky, a New York attorney with the Law Offices of Jan Meyer & Associates, PC, will serve as a special guest co-presenter at this webinar. This webinar is approved for 1.0 Texas…
In one of my favorite Seinfeld episodes[1], a frightened Kramer is lost and calls Jerry from a phone booth somewhere in Manhattan. Jerry asks him to look around for a street sign and Kramer responds with a touch of panic that he is at the intersection of 1st Street and 1st Avenue, concluding that he…
Effective subrogation requires a thorough understanding of some of the more confusing legal terms we must all work with. Matthiesen, Wickert & Lehrer, S.C. 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% of fault by the plaintiff)…
When an employee is involved in a motor vehicle accident while in the course and scope of his employment and the at-fault tortfeasor is uninsured or underinsured, the question arises as to whether the employee can recover under his employer’s uninsured or underinsured motorist (UM/UIM) policy as well as recover workers’ compensation benefits. We recently…
Referring a subrogation file to MWL is as easy as 1–2–3 with our website’s new SUBROGATION REFER A FILE feature. Referring your file to us online using this feature means getting your file in the hands of an experienced subrogation attorney in seconds. Utilizing MWL’s file referral forms are more than merely “convenient”. They ask the relevant questions and allow…
In many respects it is as daunting and elusive as the search for the Holy Grail. All 50 states allow for recovery of workers’ compensation benefits paid to or on behalf of a claimant injured in the course of his or her employment. Not a single one, however, enunciates precisely which payments or costs paid…
Waiver of subrogation. (wā-vər əv sə-brō-ˈgā-shən) 1. A two sentence clauses in a contract and/or endorsement to a workers’ compensation policy added for little or no additional premium dollars but costing the carrier potentially millions in subrogation recoveries. 2. Something requested by an insured even though it has no idea why. Waivers of subrogation continue…
Recently, the National Highway Traffic Safety Administration (NHTSA) demanded that Chrysler recall 2.7 million 1993-2004 Jeep Grand Cherokees and 2002-2007 Jeep Libertys after a probe into rear-end crashes and fires that caused at least 44 deaths and many more injuries involving the vehicles. Chrysler manufactures the Jeep Grand Cherokee and Jeep Liberty SUVs. According to…
The Mississippi Supreme Court recently dropped a bombshell and announced that in order to be reimbursed for its statutory workers’ compensation lien, a workers’ compensation carrier or employer must intervene into the third-party action. Liberty Mutual Ins. Co. v. Shoemake, 2013 WL 1831793 (Miss., May 2, 2013). If it does not do so, its subrogation…
A 2012 Texas Federal Court decision has brought into focus the ability of an ERISA Plan to file a state subrogation tort action. While dealing specifically with a Contribution of Benefits issue, the Federal Court decision in Central States v. Health Special Risk, Inc., 2013 WL 2656159 (N.D. Tex. 2013) has given ammunition to anti-subrogation…
The Delaware Supreme Court proved me right recently. On March 19, 2013, the Court examined sloppy amendments the Delaware Legislature made to § 2363 back in 1993 and formally announced for the first time that a workers’ compensation carrier is not subrogated to uninsured/underinsured motorists (UM/UIM) benefits, regardless of whether or not the UM/UIM policy…
On June 7, 2013, MWL participated in the Washington County Big Brothers and Big Sisters Golf Event and Fundraiser which took place at the Washington County Golf Course in Hartford, Wisconsin. Gary Wickert is pictured here golfing a hole where you had to dress up Hawaiian style and if you got a hole in one you won a prize. All…
We have long known that Democrats, financially-fueled by the trial lawyers’ lobby, are no fans of subrogation. Surprisingly, even Republicans continue to battle the subrogation bogeyman, an indication that subrogation education and lobbying of our legislators should be a priority in our industry. The most recent example is in Texas, where Republican legislators sponsored, and…
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. The blast killed 15 people, injured at least 200,…
As a means of raising revenue, particularly during times of economic crisis, a handful of states employ, and many states repeatedly revisit, the dubious and counter-productive scheme of imposing a tax on professional services, whether as a sales tax (including lifting an exemption in many states’ sales tax code for professional services), use tax, excise…
A rapidly changing area of insurance defense involves products causing injury or damage to people and property. Many states are moving towards adopting the standards set by the Restatement (Third) of Torts, and Wisconsin is no different. On February 1, 2011, the Wisconsin Omnibus Tort Reform Act went into effect, severely affecting and changing products…
In Bethke v. Auto-Owners Ins. Co., 2013 WI 16 (2013), the plaintiffs sought underinsured motorist (UIM) coverage under a policy issued by Auto-Owners (“Owners”) as a result of an automobile accident caused by an allegedly negligent driver of a rental vehicle owned by Avis Rent-A-Car (“Avis”). Avis, as a car rental company, was statutorily required…
On May 18, 2013, MWL hosted an event for their staff and guests at the Splash Studio, a painting bar, located in heart of the Historic Third Ward arts and cultural district in Milwaukee. The Splash Studio’s interior felt like a studio loft mixed with a trendy downtown bar. Everyone created their own “Autumn Tree” painting while…
The Ruffed Grouse Society honored Attorney Ryan L. Woody on April 22, 2013 for his work on behalf of the organization in national conservation issues, including an amicus brief in a recent U.S. Supreme Court decision.
Court Recognizes Importance of Subrogation In Reducing Premiums: Calingo v. Meridian Resource Co., LLC, 2013 WL 1250448 (S.D.N.Y. 2013). The U.S. government sponsors more than 350 different health Plans covering more than nine million federal employees, retirees, and beneficiaries through the Federal Employees Health Benefit Act of 1959 (FEHBA). 5 U.S.C. §§ 8901-8914. These health Plans…
U.S. Supreme Court Unanimously Holds Equity Does Not 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…
A new Minnesota Court of Appeals decision makes clear that timing is everything when it comes to UIM subrogation. The court’s decision in Russell v. Haji-Ali, 826 N.W.2d 216 (Minn. App. 2013) means that a claims professional settling a uninsured/underinsured motorist (UM/UIM) claim must now understand that UM/UIM benefits received by an insured before a…
Until recently, there had been a big question over whether a PIP or Med Pay carrier had a right of subrogation in Arkansas. A.C.A. § 23-79-146 authorizes subrogation rights for any casualty insurer, accident and health insurer. It provides as follows: § 23-79-146. Subrogation Recovery. (a)(1) Any casualty insurer, accident and health insurer, health maintenance…
In 1 Samuel 17, the Bible tells one of the most poignant and motivating stories of all time. The Philistine army had gathered for war against Israel. The two armies faced each other, camped for battle on opposite sides of a steep valley. Goliath, a Philistine giant measuring over seven feet tall and wearing full…