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…
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…
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…