January 2016 Subrogation Newsletter
On January 8, 2016, the Texas Supreme Court in J & D Towing, LLC v. American Alternative Insurance Corporation, 2016 WL 91201 (Tex. 2016), changed nearly a century of law and ruled for the first time that the owners of automobiles and other damaged personal property which are a total loss may recover loss-of-use damages. Until this decision, a person whose vehicle was totally destroyed could only recover the market value of the lost vehicle, while a person whose vehicle was repaired could also recover the loss-of-use of the vehicle.
Trial lawyers are happy. On January 20, 2016, the U.S. Supreme Court issued their written opinion in the long-anticipated ERISA subrogation case of Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 2016 WL 228344 (Jan. 20, 2016). The U.S. Supreme Court was asked to decide whether a Plan beneficiary is obligated to reimburse his or her health insurance Plan for medical expenses it paid, when the beneficiary settles a third-party tort case, but spends all the money. And, decide it they did. If you handle health insurance subrogation, you need to read this article.
Just when you thought workers’ compensation subrogation in this country’s most difficult state couldn’t get any more difficult, it does. In Zaldivar v. Prickett, 774 S.E.2d 688 (Ga. 2015), the Georgia Supreme Court held that a non-party can have “fault” that a jury should consider, notwithstanding that the non-party has a valid defense or immunity as against its own liability to the plaintiff. This includes an employer otherwise protected from liability by the exclusive remedy protection provided by Georgia’s Workers’ Compensation Act. Everybody except the workers’ compensation carrier won something in this decision. Defense counsel and plaintiffs’ counsel received needed clarity on the non-party apportionment statute. At the same time, the decision provides litigants some clarity on negligent entrustment claims. Subrogated employers and workers’ compensation carriers may be the only pure losers.