APRIL 2019 SPECIAL TEXAS EDITION SUBROGATION NEWSLETTER

Matthiesen, Wickert & Lehrer, S.C. is proud to announce the opening of its new Austin, Texas branch office on May 1, 2019. 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 Specialization in Civil Trial Law and Personal Injury Law. Lee, a native Texan, will be living and practicing full-time in Austin while Jim and Gary will initially split time in the office and oversee its operation as we bring in new subrogation personnel.

Texas is at the forefront of enacting laws which limit or bar indemnification clauses of contracts 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 fact that your insured may owe contractual indemnity to an at-fault defendant may not legally bar subrogation, indemnity clauses can have a dampening effect on subrogation.

The El Paso Court of Appeals in New Hampshire Ins. Company v. Rodriguez, 2019 WL 168482 (Tex. App. 2019) has announced for the first time that a workers’ comp lien can be reduced and even eliminated by the percentage an employer’s fault bears to the total recovery or judgment in a case, even when the third-party suit or claim is brought by the employee and the carrier is simply seeking reimbursement under § 417.001(b).

Texas has historically been a very favorable venue for workers’ compensation subrogation, but it hasn’t been without its gray areas. In death cases, when an employee dies and surviving family members have received workers’ comp benefits, a careful analysis is required in order to determine and protect the subrogation and future credit rights of a workers’ comp carrier. A new Texas Court of Appeals decision sheds some light on the issue, but questions remain.

Subrogation potential often crashes and burns in the face of exculpatory agreements and liability waivers. On April 12, 2019, Attorney Lee Wickert with Matthiesen, Wickert & Lehrer’s new Austin, Texas branch office was featured in a New York Times article, found HERE, which looked at the confusing and often surprising effect that these risk-limiting agreements can have on possible third-party tort liability.

On May 1, 2019, MWL celebrates the opening of its Austin, Texas office and thanks its many auto subrogation clients, by offering a special one-hour webinar focusing on the nuances and details of Texas automobile subrogation. Whether you are sharpening your subrogation tools or new to the industry, this is a webinar you won’t want to miss. It will be presented on July 16, 2019 by Attorney Lee Wickert of our new Austin, Texas office beginning at 10:00 a.m. (CDT).