The Arkansas subrogation landscape is notoriously hostile toward insurance carriers, particularly in the workers’ compensation context. Anchored in a sweeping application of the “Made Whole Doctrine,” Arkansas courts have historically treated subrogated carriers as afterthoughts in the allocation of third-party recovery. However, a recent federal court decision—French v. Amazon.com, Inc.—delivers a long-awaited dose of clarity and common sense for carriers seeking to assert their statutory right of subrogation.[1] This case confirms what many subrogation professionals have argued for years: Section 11-9-410 of the Arkansas Code does not require a judicial determination that an employee has been made whole before a carrier may file a third-party subrogation action.
The Case in Focus
In French v. Amazon.com, Inc., Christopher French, an employee injured by defective equipment sold by Amazon, received workers’ compensation benefits from his employer’s carrier, Technology Insurance Company. The carrier subsequently filed a third-party subrogation suit against Amazon and other defendants under Arkansas’ workers’ compensation subrogation statute—§ 11-9-410(b). The defendants immediately moved to dismiss the claim, arguing that the carrier could not maintain the suit until there was a judicial determination that French had been made whole. The federal court rejected that argument outright. The court held that Arkansas law permits a workers’ compensation carrier to initiate a third-party subrogation action before a made whole determination is rendered, stating:
“The Court agrees with Technology Insurance that, under Arkansas law, an insurer need not establish that the insured was made whole before bringing suit..”
The court emphasized that filing the action and recovering proceeds under the lien are distinct steps. The former is permissible without a prior made whole finding; the latter requires it.
In Arkansas, the Made Whole Doctrine has morphed into a nearly insurmountable obstacle for carriers attempting to pursue both contractual and statutory rights of subrogation. This equitable doctrine shouldn’t apply to contractual or statutory subrogation, but in Arkansas, it has long prevented an insurer from exercising its subrogation rights unless and until the insured has been “made whole” for all damages.
Although the doctrine was first applied to health insurance subrogation in the Arkansas Supreme Court case of Franklin v. Healthsource of Ark., 968 S.W.2d 109 (Ark. 1998), it has metastasized into nearly every subrogation context—except, as we have just learned from the federal judge in French v. Amazon—the right to file a workers’ compensation subrogation suit. In General Accident Ins. Co. of Am. v. Jaynes, the Arkansas Supreme Court imposed the Made Whole Doctrine for the first time on workers’ compensation subrogation under § 11-9-410, despite the fact that the statute makes no mention of such a requirement.[2] Since then, plaintiffs’ attorneys have wielded the Jaynes precedent as an anti-subrogation weapon, arguing that carriers must sit on the sidelines until a court determines their insureds have been made whole. Worse, plaintiffs have used these arguments to recover attorneys’ fees when carriers dare to assert their rights “prematurely”—as in Liberty Mutual v. Youngblood.[3] However, French v. Amazon cuts against this tide. It confirms that initiating a subrogation action is not barred by the employee’s uncertain “made whole” status—only the distribution of recovered proceeds is. This subtle but critical distinction should embolden carriers to act early, preserve evidence, and participate in litigation before it’s too late.
Outside the workers’ compensation arena, however, Arkansas’s application of the Made Whole Doctrine has turned Arkansas into a subrogation wasteland. Courts routinely deny recovery to subrogated carriers who are unable to prove—often through costly litigation—that their insureds have been made whole. For instance, in EMC Insurance v. Entergy Arkansas, Inc., a subrogated property carrier was barred from pursuing its claim because it failed to first establish that the insured homeowners had been made whole.[4] Even though EMC had paid for the fire damage and sought recovery against Entergy for allegedly causing the blaze, the court ruled EMC lacked standing without a judicial or agreed determination that its insureds had been fully compensated.
Similarly, in Riley v. State Farm Mut. Auto. Ins. Co., the Arkansas Supreme Court held that no subrogation rights attach—at all—until a made whole finding is judicially determined or agreed to in writing.[5] These decisions highlight a troubling inconsistency. While workers’ compensation carriers may file suit under § 11-9-410 without a made whole finding, other insurers must effectively litigate standing before even asserting subrogation. The result is a patchwork of precedents that often reward delay, incentivize plaintiff manipulation, and frustrate the legislative purpose of subrogation in preventing double recoveries and holding down the cost of insurance for the public.
Ongoing Challenges for Subrogated Carriers in Arkansas
Despite the favorable subrogation ruling in French, Arkansas remains a challenging environment for workers’ compensation subrogation. Subrogated carriers still face significant barriers:
- Litigation Risk: Even though the carrier can file suit, it may not recover unless the court determines the worker has been made whole—a hurdle that is difficult to clear and inconsistently applied.
- Attorneys’ Fee Exposure: Decisions such as Youngblood have ruled that simply asserting a subrogation interest could subject carriers to attorneys’ fee awards under § 11-9-715 if the employee is later found not to have been made whole.
- Judicial Hostility: Courts continue to use “equity” to erode statutory subrogation rights, often allowing sympathy for the injured worker to trump clear statutory language.
Nevertheless, French provides a valuable opening and is certainly something to build on. Carriers now have federal court authority confirming they need not await a made whole finding before preserving their subrogation rights through litigation. The French v. Amazon decision is not a panacea, but it clears the path for proactive workers’ compensation subrogation. It confirms that Arkansas law allows carriers to file third-party suits without first securing a made whole determination. In a state where subrogation rights are most often honored in the breach, this is a crucial clarification. As carriers continue to navigate Arkansas’s treacherous subrogation terrain, French serves as both a legal foothold and a strategic signal: assert your rights early, litigate if necessary, and protect your lien before it disappears.
[1] French v. Amazon.com, Inc., 767 F. Supp. 3d 854 (E.D. Ark. 2025).
[2] General Accident Ins. Co. of Am. v. Jaynes, 33 S.W.3d 161 (Ark. 2000).
[3] Liberty Mut. Ins. Co. v. Youngblood, 609 S.W.3d 468 (Ark. App. 2020).
[4] EMC Insurance v. Entergy Arkansas, Inc., 924 F.3d 483 (8th Cir. 2019).
[5] Riley v. State Farm Mut. Auto. Ins. Co., 381 S.W.3d 840 (Ark. 2011).
