July 2017 Subrogation Newsletter
Some states, including Missouri, are known as “anti-subrogation” states. Missouri’s public policy prohibits the assignment of a personal injury claim, whether it is called an assignment, subrogation interest, or agreement to reimburse. This means that in Missouri, a health insurance company who has paid accident-related medical bills is generally not entitled to be reimbursed out of the injured person’s settlement, unless an exception to that rule applies. Some argued that the preemption of Missouri’s anti-subrogation law by a federal law known as the Federal Employees Health Benefits Act of 1959 (FEHBA) was such an exception. I suppose you can’t blame Missouri for vigorously protecting its laws, but after three decisions and two trips to the U.S. Supreme Court, the Missouri Supreme Court finally raised the white flag and agreed that the FEHBA preempts Missouri’s anti-subrogation law.
North Dakota Fights Back Against Workers’ Compensation Subrogation Obstacles In Anti-Subrogation States
Plaintiff-friendly judges and legislators in various states have gained strength and influence over the last twenty years, resulting in statutes and court decisions inimical to the subrogation and reimbursement rights of workers’ compensation carriers. On March 13, 2017, the North Dakota legislature amended § 65-01-09, North Dakota’s workers’ compensation subrogation statute, by adding a simple sentence in a new subsection 7. North Dakota is fighting back.
The law now is that, where there are multiple injuries, but the tort recovery covers only some of those injuries, subrogation might be limited to those injuries caused by the third party. If the carrier can recover only for benefits paid for work injuries caused, in part, by the third-party tortfeasor, the potential burden of proof for subrogated carriers just got a lot more difficult. In addition, the potential for gerrymandering settlements to avoid repayment of workers’ compensation liens has widened considerably.
Gary Wickert will be presenting a live webinar on “The Top Ten Subrogation Mistakes Carriers Keep Making” on August 24, 2017 from 10:00 – 11:30 a.m. (Central). As insureds become more savvy and wise to the significant savings aggressive, cost-effective subrogation can provide them, we can no longer ignore the best subrogation practices and techniques available to us. We underwrite and adjust claims in ways to prevent mistakes — limiting risk and staying within our claims-handling comfort zones. Across all lines of insurance, our mistakes and failures are gifts and guideposts in our learning and growth as insurance industry members. But, we can only take advantage of them if we recognize them. Join us as we highlight and discuss ways to avoid repeating the ten mistakes most costly and commonly committed in the fast-growing and demanding world of insurance subrogation. There is no cost to attend our webinas. For more information on this webinar or to register for this webinar, click HERE.