Subrogation is the necessary evil of recovering as much of our insureds’ claim dollars as possible in order to help hold down insurance premiums and soften the blow a claim event might otherwise have on them. No industry is perfect and insurance is no exception. Thirty-three years of subrogation litigation experience has distilled ten of the most common mistakes which we see clients continuing to make when it comes to recognizing and acting on subrogation potential. I divulge and discuss them in this article not as a criticism of the clients to whom we owe the living we make, but as a healthy reminder to those who do not wish to repeat them.

Nebraska has recently become a battleground in the war against workers’ compensation subrogation being waged by trial lawyers. Nebraska is a “tweener” when it comes to workers’ compensation subrogation. It doesn’t provide a carrier with a first money right to recovery of third-party proceeds, as most states do, but neither does it employ a version of the Made Whole Doctrine sufficient to allow a workers’ compensation lien to be avoided merely because the employee hasn’t been fully compensated. Instead, it falls in the middle. Nebraska has only recently provided any guidance for determining how to fairly and equitably distribute a recovery.

A recent 2nd Circuit Court of Appeals decision interpreted New York’s General Obligations Law § 5-335, which provides that personal injury settlements “shall be conclusively presumed” not to include “any compensation for the cost of health care services, loss of earnings, or other economic loss[es]” that “have been or are obligated to be paid or reimbursed by an insurer.” Arnone v. Aetna Life Ins. Co., 2017 WL 2675293 (2nd Cir. June 22, 2017). In this appeal, the 2nd Circuit considered whether § 5-335 applied to payments made in settlement of a personal injury suit brought in New York by a New York resident injured in New York, even though the governing benefit Plan provides that the law of Connecticut controlled the Plan’s construction.

Gary Wickert recently appeared on a national Ringler Radio program, hosted by Larry Cohen. The program, titled “Driverless Car Litigation”, focused on the ever-changing intersection between the exploding industry of self-driving vehicles and litigation. The latest innovations in driverless cars were discussed, along with their likely impact on the insurance industry and underwriting. Even trial lawyers will have to adapt to the changing face of automobile accidents and injuries which involve self-driving vehicles. “The future starts today, not tomorrow,” Pope John Paul II famously said. He was right. Driverless cars – more appropriately known as “autonomous vehicles” – are here. To listen to the podcast, click HERE. To read the article discussed in the radio broadcast, entitled “Driverless Car Litigation – The World of George Jetson Has Arrived!”, as posted on the CPCU website, click HERE. If you have any questions regarding this topic or subrogation in general, please contact Gary Wickert at [email protected].