May 2018 Subrogation Newsletter
It is hard to participate in any activity without being asked to read and sign some sort of release, exculpatory agreement, or liability waiver in advance. A key tool of risk management is the exculpatory agreement – a generic term which can refer to a provision in a contract, the back of a receipt or invoice, or the simple act of clicking “accept” during an online purchase. These risk management tools may include liability waivers, releases of liability, assumption of risk agreements, pre-injury releases, disclaimers of liability, sign postings, etc. Knowing how, when, and why such clauses are enforceable has become indispensable for today’s claims professionals and a necessity for knowing whether liability or subrogation claims can be pursued.
There is little law in California regarding subrogation/reimbursement and/or future credit rights of an employer or workers’ compensation carrier when an employee makes a third-party recovery because of legal malpractice in the handling of the employee’s attorney. This is surprising, given that California usually leads the nation on cutting-edge issues like this. However, despite the paucity of law on the subject, a recent Workers’ Compensation Appeals Board order seems to congeal the limited precedent out there into a ruling that prohibits the carrier from subrogation/reimbursement rights or the right to a future credit out of a legal malpractice tort recovery.
Ridesharing has officially arrived in New York, and confusion over New York no-fault insurance and PIP Loss Transfer has arrived with it. Third-party tort claims are limited by New York’s no-fault laws, and a PIP carrier who has paid benefits to a driver or passenger has no traditional subrogation rights. Loss transfer is an opportunity for a PIP carrier to recover from the negligent motorist’s insurer the first-party benefits it paid because of an accident. Unfortunately, when PIP benefits are paid to an Uber driver or rider, there is significant confusion regarding whether loss transfer will be allowed.