October 2016 Subrogation Newsletter
The Exclusive Remedy Rule is neither exclusive nor a remedy. What began as a cornerstone of the social insurance experiment known as workers’ compensation has become so riddled with leaks that employers and their insurers often give up on subrogation in order to protect themselves from liability they were never intended to bear. One of the biggest holes in the exclusive remedy dam is known as the Dual Capacity Doctrine. Like all of the other holes in the dam, it has gotten much bigger over the years. Understanding it is crucial to recovery efforts regardless of the state you are subrogating in.
Hawai’i. There is no place like it on earth. It is the most remote population center on the face of the planet, 2,400 miles from the nearest anything. There is so much unique about our 50th state that it is only fitting that subrogation there be both unique and challenging as well. Understanding Hawai’i and its people will help you understand why subrogation must be handled just a little differently in this remote location. As much as we’d like to think that subrogating in Hawai’i is no different than subrogating in Dubuque, Iowa, there are real, tangible differences, legally and culturally. This article is an overview of some important subrogation law in the State of Hawai’i.
A recent Texas Court of Appeals decision parsing the wording of a workers’ compensation policy’s waiver of subrogation endorsement reminds us that, like an onion, a waiver endorsement has many layers and should be peeled back fully before giving up on subrogation and/or reimbursement potential. Even when there is a waiver endorsement in the policy, you must peel back the layers of the endorsement and compare each layer to the facts of your case in order to determine whether your subrogation file should be closed.