November 2015 Subrogation Newsletter
A new generation of opportunistic subrogation and claims vendors, often owned by lawyers who have experienced firsthand the cost-conscious insurance industry’s attraction to low rates, has had great success by offering contingent fee rates too good to be true. The lowest contingent fees guarantee that many files will be settled for less than their true value and that larger files that should see the inside of a courtroom in order to get top dollar never will. Like insurance catnip, however, the low contingent fees serve up the mirage of fee containment while simultaneously devaluing an entire book of business. The only winner here is the short-lived vendor, who profits by selling short the wheat and leaving the client with the devalued chaff.
There are three primary claims a subrogated insurance carrier can bring against a marina, including breach of contract, breach of bailment, and negligence. Under the laws of many states, all three causes of action can often be defeated with an appropriately-drafted and enforceable exculpatory clause contained within a marina storage agreement. However, by utilizing maritime law instead of state law, the catastrophic subrogation-destroying effect of the agreement can often be sidestepped. Knowing when this is the case is the key to successful subrogation.
PUTTING THE CART BEFORE THE HORSE: Amendment Proposed To Massachusetts' Workers’ Compensation Subrogation Statute in Response to Judicial Activism
In the normal course of American jurisprudence, legislation is passed and courts decide cases according to the laws that have been passed. It seems that in Massachusetts, they have it backwards. Section 15 of the Workers’ Compensation Act provides unequivocally that in third-party tort cases, “the sum recovered shall be for the benefit of the insurer.” An amendment to the statute was recently proposed in order to bring the statute into compliance with a Massachusetts Court of Appeals’ decision which ignored this clear language of the statute and announced that something less than the “sum recovered” is for the benefit of the insurer.
For everyone at Matthiesen, Wickert & Lehrer, S.C., Thanksgiving is far more than a special day on the calendar. We are each reminded to live a life of thanksgiving each day we are given, thankful to God for all of His blessings. Even in the midst of misfortune we can find time and reason to give thanks. Join us this Thanksgiving in giving thanks in the words of Ralph Waldo Emerson: “For each new morning with its light, for rest and shelter of the night; For health and food, for love and friends; for everything Thy goodness sends.”