Newsletters

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. Not only is no-fault confusing and dysfunctional, it also contradicts basic American principles such as individual responsibility and accountability. By eliminating “fault”, the law treats good drivers and bad drivers the same. This weakens the deterrent effect of tort law. It also eliminates full compensation. In an effort to avoid the abuse of claims for pain and suffering and other non-economic damages, the experiment has thrown the baby out with the bathwater.

Good first-party claims practice requires prompt repair of damaged vehicles. Cost-conscious and profit-minded auto insurers aggressively pursue subrogation upon being notified of a physical damage claim. They provide carriers for culpable tortfeasors with police reports, witness statements, and evidence of the claims damages they have paid. With increasing frequency, liability carriers are refusing to take such damage “evidence” at face value. Instead of simply paying the claim, they are arguing that promptly repairing the vehicle without giving them the opportunity to inspect and verify the damages is tantamount to spoliation and is a defense to the claim against them. But are such claims of “spoliation” legitimate?

In most states, laws and regulations governing subrogation and/or reimbursement rights of a workers’ comp carrier and its insured are virtually non-existent. Insurer claims for reimbursement from their insured and disputes over who gets reimbursed what, when there is a successful subrogation recovery, often hinge upon the parties’ rights under the policy. Because carriers file their individual deductible program with each state, no two are alike, and these agreements become very important in determining recovery rights.

The federal government employs nearly 9.1 million workers – nearly 6% of total U.S. workforce. Every year, the government pays an estimated $35 billion annually because of vehicle crashes alone, an estimated 12.6% of the total economic cost of crashes (Federal 7.1%, State/Local 5.5%). For limited government advocates, the numbers are astonishing. For subrogation professionals, the numbers should represent a tremendous opportunity.

In California, until you have received permission from the court to intervene, a party lacks any standing to the action. Filing a motion to intervene can be equated to filing a Notice of Lien because you have yet to receive court approval to intervene. Filing a Notice of Lien does not make you a party to the action nor does it give you any rights to actively participate in the underlying lawsuit. You are standing in California’s intervention line.

On May 12, 2020, the New Jersey Supreme Court answered a long-standing subrogation question regarding whether a workers’ comp carrier is entitled to 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 them to sue the tortfeasor. The Supreme Court confirmed that the subrogation rights of a workers’ comp carrier are not affected by New Jersey’s no-fault and verbal threshold requirements.

It’s safe to say that millions of subrogation claims have statutes of limitations or statutes of repose which were set to expire during the last few months. Many states are now lifting the suspension of the statutes of limitations, and our industry will undoubtedly see many statutes expiring before practitioners ever knew the tolling had been lifted. Subrogation professionals must pay close attention to the applicable state order or court rulings when determining the effect of the order on computing time for a statute of limitations.

On May 6, Governor Newson signed Executive Order N-62-60 stating it will be presumed the employee contracted COVID-19 on the job if they test positive for or are diagnosed with COVID-19 within 14 days after the employee performed labor at their place of employment. Employers have 30 days from the date of claim to reject and/or rebut the claim, leaving little time to review the claim. It opens up insurers to possibly having to pay workers’ comp benefits for an employee who may not have contracted COVID-19 at the workplace.

On May 20, 2019, Michigan took baby steps toward ridding itself of its dysfunctional no-fault system by eliminating core features of its no-fault law that were in place for nearly 50 years, including doing away with Michigan’s lifetime, unlimited no-fault medical expenses, and giving drivers the choice of opting out of the No-fault Act altogether. This historic change in Michigan law presents new potential subrogation opportunities in a state that has otherwise been all but abandoned by subrogation professionals.

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. He has built the MWL commercial auto and cargo/transportation group into a thriving sector of our firm’s subrogation practice. MWL is very proud and privileged to have Ashton become partner in what our clients recognize as one of the premier insurance litigation law firms in the nation. If you have not yet asked Ashton how he can help on your most important claims, or just wish to congratulate him, he can be reached at [email protected].

There are many important factors to consider when analyzing an insurance policy for Coronavirus-related coverage. This article provides an introduction to the issue and outlines important items to consider when reviewing your policy for coverage. We are still in the early stages of this pandemic and litigation is in its infancy, however an understanding of these coverage concerns will allow you to strategize moving forward whether you are an insured business owner, an insurance adjuster, or a coverage attorney.

Given the financial impact of COVID-19 on the country and the world, federal and local governments have scrambled to impose new protections for consumers. While companies must be careful to evaluate and properly classify their business activities and review each state’s order language, most pursuing subrogation or reimbursement as a subrogee of their insured will not have daily operations substantially impacted by prohibitions on collection activity in the era of COVID-19.

In the face of unscrupulous Assignment of Benefits (AOB) practices, states are beginning to fight back. Insurers, insureds, lawyers, and legitimate and licensed vendors should be joining forces to thwart this subversive attack on the most basic types of claims in our industry. Effective on July 1, 2019, Florida’s Governor Ron DeSantis signed SB 122, creating § 501.172 addressing concerns regarding abusive litigation practices by contractors and their lawyers.

sen, Wickert & Lehrer, S.C. (“MWL”) is pleased to welcome seasoned trial lawyer Sarah “Sally” Fry Bruch to the firm. Sally brings with her nearly three decades of insurance and general litigation experience to MWL’s Hartford, Wisconsin office. Sally’s practice focuses on complex defense litigation as well as property and casualty, workers’ compensation, and auto subrogation cases throughout Wisconsin and across the country. Sally believes strongly in preparation to produce a quality written product and argument, that persuasively communicates the law and the facts, and creates a record in favor of the client’s position. On behalf of the partners, associates, legal assistants, and support staff here at MWL, we would like to welcome Sally and invite our clients and friends to introduce themselves to Sally, who can be reached at [email protected].

In this webinar, we will explore when local municipalities and counties, states, and the federal government are immune from suit, and when cause of action exist. We will discuss statutes which grant specific causes of action against government entities and review procedural hurdles and time limitations that must be navigated when bringing a tort claim against the government, and various limitations on damages. Finally, we will explore whether a government tort claim is worth it and how you can collect on a judgment. Register Today!

As we closely monitor developments around the spread of COVID-19, the health and safety of MWL employees around the country and our ability to provide seamless continuity of subrogation services to our clients are of utmost importance. During this crisis, most of our employees are working from home remotely and we will continue to provide the same prompt and responsive services that our clients are accustomed to. Rest assured that the referral of files to MWL is safe and secure because cybersecurity is and always has been a high priority. Over the last several years, MWL has taken dramatic steps to increase and maintain cybersecurity in-house and for staff working remotely. If your current subrogation law firm or vendor is not doing the same; you and your insured’s data, sensitive medical information, and PHI is not secure.

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 be grounds for a valid a workers’ compensation claim for an industrial injury. The repercussions are mind-boggling.

Many subrogation professionals are or 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. This article highlights some areas that subrogation professionals need to consider and some possible solutions.

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. In the wake of the global pandemic involving the COVID-19 coronavirus, employees across the globe are being told to work from home or given that option. Claims handlers and subrogation professionals should be aware of the many legal nuances that arise when employees work from their couch or the local Starbucks.

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. Many are wondering whether the government has the authority to shut down a company and effectively put them out of business in conditions such as these.

When and whether a vehicle involved in a collision is considered “totaled” is an issue of great angst and confusion for most consumers. Even insurance professionals can get turned around navigating the maze of rules and regulations surrounding the act of “totaling” a vehicle under a policy. It needn’t be all that complicated. This article will help take the guesswork out of when a vehicle is to be deemed a “totaled” or a “total loss” and the resulting responsibilities and ramifications applicable to a salvage title vehicle.

There are 22 million vehicles registered in Texas and 13 million head of cattle. Cattle and cars intersect more often than insurers would like to think about. In fact, in the fall season of September, October, and November, animal collisions in Texas account for 24% of all car crashes. Damages from these collisions amounts to over $1.3 billion annually which means that subrogating these losses has become an important area of claim reimbursement for aggressive and prudent insurers. Subrogating Texas vehicle/livestock collisions, however, is more of a challenge than one might expect. In fact, in many cases, the ability to pursue the livestock owner depends on whether a county has adopted local stock laws.

A mutual insurance company is one which is owned entirely by its policyholders. Subrogating on behalf of a mutual insurance company often requires special handling and techniques considering the nature of the individuals and businesses they insure and the types of losses they frequently encounter. Effectively representing them begins with an understanding of what they are and who they insure.

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 explosion team of experts to begin investigation into the root cause of the explosion. MWL will be at the forefront of the investigation actively pursuing subrogation recoveries on behalf of our clients who pay out losses to their insureds as a result of this explosion. If you have claims related to this loss that require subrogation recovery or if you have any questions, please feel free to contact Mark Solomon at [email protected] or Gary Wickert at [email protected]. They can also be reached at 800-637-9176.

Massachusetts federal district court has ruled that tort law does not provide for recovery of “inherent diminution in value” damages by a third-party claimant. The decision is being appealed but appears to clearly place Massachusetts in the group of states that don’t allow for recovery of such damages from a third-party tortfeasor.

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 subrogation, regardless of contract language to the contrary.

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. Zahra’s practice focuses on insurance litigation, especially nationwide insurance subrogation involving workers’ compensation, automobile, health insurance and ERISA, property and casualty, premises liability, insurance coverage, and civil litigation. Zahra is also fluent in Farsi and conversational in Spanish. We look forward to utilizing Zahra’s extensive experience handling subrogation litigation across California

Let’s just say it. Florida PIP subrogation is a pain in the butt. The PIP carrier isn’t subrogated to or has a lien on any tort recovery against the “vehicle” owner, subject to two exceptions: (1) where the third-party tortfeasor is uninsured, and (2) where a commercial vehicle which is not required to have PIP coverage is one of the vehicles involved in the accident. The former is straightforward; but the latter exception is where all the confusion arises.

For many years, Idaho courts had discussed this tort but never formally recognized it. On October 18, 2019, however, the Idaho Supreme Court finally adopted third-party spoliation as an independent tort, which now allows an action for spoliation damages against third parties who are not part of the underlying civil lawsuit.

Maryland Court Confuses Wisconsin Exclusive Remedy Rule. For years, lawyers, judges, and state courts have been confused over the Exclusive Remedy Rule that exists in Wisconsin. The confusion is because prior to 1978, the Exclusive Remedy Rule didn’t apply to actions brought against co-employees, but in 1978 the Act was amended to make the Exclusive Remedy Rule applicable to an action against “any other employee of the same employer.”

An action is usually commenced within the applicable statute of limitations by filing a summons and/or complaint. Filing the complaint, however, is only the first step. Where service of the complaint on defendant isn’t pursued with reasonable diligence or obtained within a prescribed number of days after filing, defendant may argue the statute of limitations has run and the lawsuit should be dismissed, even if it was timely filed.

The new Senate Bill 421, signed on June 20, 2019, amends several aspects of PIP subrogation under either O.R.S. § 742.536 (PIP lien) or O.R.S. § 742.538 (direct PIP subrogation). However, the only real changes the subrogation practitioner will notice in the wake of Senate Bill 421 is that PIP carriers will never again be named together with the insured on settlement checks for PI claims inclusive of PIP. Plaintiffs’ attorneys will feel more emboldened about signing off on indemnity/hold harmless releases where settlements were inclusive of PIP, and then can be expected to stubbornly resist reimbursement arguing their client has not been made whole. Beyond that, you may choose your Shakespearean reference to describe it: either (1) “Full of sound and fury, signifying nothing”, or (2) Much Ado About Nothing.

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. Until recently, Pennsylvania had only one case speaking to this issue, but Pennsylvania has finally picked a side on this issue in the 2019 Superior Court decision of Joella v. Cole, 2019 WL 5287987 (Pa. Super. 2019).

The War Hazards Compensation Act (WHCA) applies to U.S. employees and government contractors that perform work overseas who are injured as a result of hostile actions. The statute provides procedures and requirements which, if done properly, allow the employer or carrier to seek 100% reimbursement, including allocated and unallocated expenses – not from a responsible tortfeasor, but the government itself.

For years, the publication of Directive Number 175, issued by the 2003 Louisiana Insurance Commissioner, prevented many insurers from successfully pursuing subrogation claims in Louisiana. However, a recent Court of Appeals’ ruling held that policy terms that disclaim the Made Whole Doctrine are enforceable despite the public opinion of the Louisiana Insurance Commissioner.

The first U.S. liability car insurance policy was written in 1898. You would think that with such a long and storied history, the typical auto insurance policy would have evolved to the point of addressing every potential scenario and eliminating any conceivable ambiguity. However, on May 29, 2019, the South Dakota Supreme Court would discover more appropriately, concoct, a policy ambiguity with the clear intent to thwart legitimate rights of subrogation.

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.