February 2017 Subrogation Newsletter
The significant safety problem of distracted driving has grown exponentially over the past decade and has reached epidemic proportions. Precisely which distractions are the deadliest hasn’t been conclusively determined. Without regard to where it may rank on the list of the most distracting and dangerous activities drivers engage in, nobody can argue that operating a cell phone, sending or receiving texts, or manipulating hand-held devices while driving are high on the list. This article provides a link to a new chart on the current law across all 50 states governing the use of cell phones, texting, and/or the manipulation of hand-held electronic devices while driving.
Questionable Hawai’i Court of Appeals Decision Creates Interesting Workers’ Compensation Subrogation Opportunities
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 The recent unpublished Hawai’i Court of Appeals decision in Hawaiian Dredging Constr.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, and could result in higher construction costs as general liability carriers realize that indemnity clauses could cost their insured much more than previously thought. At the same time, the decision provides some interesting reimbursement opportunities in Hawai’i construction projects which are unavailable in other states.
Kansas law is chocked full of traps and pitfalls for the unrepresented carrier. Kansas workers’ compensation law provides that a carrier is not entitled to any third-party recovery which flow from non-economic damages. Naturally, unrepresented carriers will inevitably be faced with gerrymandered settlement agreements purportedly assigning most or all of the recovery to pain, suffering, mental anguish, etc., so as to avoid repaying any part of your lien. Only active intervention by subrogation counsel can avoid this clear loophole in Kansas law. In the case of Heimerman v. Rose, 2017 WL130123 (Kan. App. 2017), the plaintiff’s attorney dropped the ball, but most carriers in this situation will not be so fortunate.