Newsletters

Hospital liens can affect all parties to litigation and can dramatically affect the outcome of litigation. If not properly perfected and “maintained”, hospital liens can be expensive problems for hospitals, physicians, and other health care providers. This article is an overview of hospital lien laws across the country and culminates with a link to a chart detailing the lien laws of all 50 states.

When and how non-material items like labor and general contractor overhead and profit (GCOP) should be included and/or depreciated during the first-party ACV calculation process remains a challenge in every state. This article provides an overview of available state law and precedent regarding inclusion, quantification, and potential depreciation of GCOP in ACV calculations, as well as a link to a 50-state chart on the topic.

Subrogation rights can be lost before they are pursued. New Jersey common law employs an equitable doctrine known as the Entire Controversy Doctrine, that can be a trap for the unwary and used as a secret weapon to destroy subrogation claims. Similar to other states’ prohibitions against “splitting” a cause of action, this doctrine bars a party from commencing multiple lawsuits arising out of a single event or transaction.

Catherine W. Dowie has joined Matthiesen, Wickert & Lehrer (MWL) as an insurance litigation attorney in our Wisconsin office. Catherine is licensed to practice law in Massachusetts and Vermont and her practice focuses on national insurance subrogation with an emphasis on ERISA and health insurance subrogation. Catherine has a vast amount of insurance industry experience, including her 6+ years working with Phia Group. On behalf of the partners, associates, legal assistants, and support staff here at MWL, we would like to welcome Attorney Catherine Dowie to our firm.

Daniels v. State Farm Mut. Auto. Ins. Co., 2019 WL 2909308 (Wash. July 3, 2019). The Washington Supreme Court decision of Daniels extended the Made Whole Doctrine to deductible reimbursement and more broadly to property damage recoveries where it never has before. Now, whether a reimbursement action or a direct subrogation action, a carrier subrogating under Washington law is precluded from any subrogation recovery unless and until the insured’s damages, including, arguably, the insured’s unliquidated bodily injury damages, are fully compensated.

There is much confusion around the purpose of a workers’ compensation subrogation waiver endorsement. Contrary to what some believe, a waiver of subrogation does not prevent a subcontractor’s employee from suing the contractor. These waivers deprive the small subcontractor of a subrogation recovery and the positive effect such a recovery would have on its risk modifier and future workers’ compensation premiums. This article links to our new 50-state chart on Effect of Workers’ Compensation Subrogation Waiver Endorsement.

ACW Corp. v. Maxwell, 2019 WL 3024049 (Del. Super. 2019). A Delaware Superior Court has issued what constitutes in this author’s opinion one of the top five most illogical workers’ comp subrogation decisions in history. With an incorrect reading of a portion of the Delaware workers’ comp subrogation statute, the court has gutted the important right of subrogation in Delaware and increased the cost of doing business for Delaware small businesses.

MWL is pleased to welcome seasoned trial attorney Bree Madison to the firm as a senior litigating associate. Bree will be working in our Hartford, Wisconsin office and brings with her a wealth of litigation and insurance claims experience. Bree will be handling complex property and casualty subrogation along with workers’ comp and auto subrogation cases in Wisconsin and across the country. Bree’s experience includes preparation and trial of cases in both state and federal court and her experience in large, complex property subrogation losses will provide welcome assistance to a burgeoning large loss property subrogation practice here at MWL.

Carriers Are Only As Secure As Their Weakest Link. Cyber attackers have actively begun turning their sights on insurance companies and law firms. What do you know about the strengths and weaknesses of the cybersecurity measures taken by your subrogation counsel and recovery vendors? This article has ten questions you should ask and, if the answers are not complete and verified, you may be at risk.

Frederking v. Cincinnati Ins. Co., 2019 WL 2751700 (5th Cir. 2019). There is a new 5th Circuit opinion concluding that drunk driving collisions are “accidents.” Had the 5th Circuit upheld the coverage denial by Cincinnati, the ramifications for automobile accident liability coverage would have been cataclysmic.

In re Old Republic Risk Management, 2019 WL 2462486 (Tex. Civ. App.-Tyler 2019). This new decision is an important reminder to carriers and subrogation counsel that care should be taken in representing the payments that are included in a workers’ compensation lien.

In the subrogation world, it’s common knowledge that, in states that allow strict liability claims against entities in the supply chain, Amazon attempts to preclude liability by arguing that it’s not a “seller” of a product. Instead, Amazon has successfully argued that it only provides a platform for a buyer and seller to connect for purchase of a product, so it shouldn’t be subject to strict products liability. However, in two recent decisions, this argument has failed.

We are pleased to welcome trial attorney Mark A. Solomon to the firm. Mark, who is licensed to practice in Texas and Colorado, is the managing partner of MWL’s new Austin, Texas branch office. Mark’s practice focuses on complex property and casualty subrogation, workers’ comp subrogation, and auto subrogation. He brings with him a wealth of litigation and insurance claims experience. Just prior to joining MWL, he was the Supervising Attorney at Farmers Insurance Group, managing a team of seven attorneys, paralegals, and collection specialists throughout the country.

We are also pleased to welcome Jake Simon to the firm. Jake has joined our insurance litigation team as a litigating subrogation associate in our Hartford, Wisconsin office. In 2018, he worked as a law clerk in the Wisconsin office so he isn’t really “new” to the firm. Jake is handling insurance litigation focusing on nationwide insurance subrogation involving health insurance, ERISA, occupational accident claims, workers’ comp, fire and casualty, and auto.

There is an ongoing and heated national debate over the growing practice of law enforcement using red light traffic cameras. While most of the attacks on red light camera systems focus on their use as an aid to law enforcement, from a legal perspective, their use is invaluable when it comes to litigation involving intersection collisions.

Ridesharing in New York has created confusion over New York no-fault insurance and PIP Loss Transfer. In April 2019, the New York Department of Financial Services issued “Insurance Circular Letter No. 4” opining that an insurer should not invoke intercompany loss transfer provisions solely based on one of the vehicles being a rideshare vehicle.

On June 14, 2019, the Kansas Supreme Court issued a landmark decision that changes the landscape of personal injury and workers’ compensation third-party cases. This decision will have significant ramifications for Kansas tort and third-party action lawsuits, because liability carriers intentionally stingy in Kansas due to the limited downside will now have to rethink how they approach and settle liability cases.

On May 9, 2019, the Louisiana Supreme Court issued an important opinion restricting application of the Collateral Source Rule in personal injury lawsuits. This case will impact workers’ compensation subrogation recoveries in Louisiana by reducing the overall pool of recovery money subject to subrogation.

Insurance claim files are overflowing with losses involving individuals injured when they trip and fall over cracked, broken, or uneven municipal sidewalks. Most often, the injury is a direct result of a municipality failing to institute and/or follow its own policies regarding inspection, maintenance, and repair of miles of sidewalks. Whether a municipality can be held liable for sidewalk defects depends heavily on the state you are in and, in many cases, the specific city or municipality you are dealing with.

On April 19, 2019, Arizona joined 47 other states who have passed laws governing the use of handheld phones and/or texting while driving. Under the new law, drivers are prohibited from any kind of cell phone use while driving, including talking, texting, typing, or browsing internet or social-media sites, unless they are using a hands-free mode.

A New Jersey Superior Court judge recently issued a written ruling, holding that it was inappropriate for a lawyer to question his client during trial as to whether his vehicle was “totaled” as a result of an accident with the defendant’s vehicle. The judge relied entirely on a MWL’s Automobile Total Loss Thresholds In All 50 States chart and a Claims Journal article entitled “When is a Vehicle Considered a Total Loss.” It was the first ruling of this sort made in a New Jersey state court.

Stephen Smith will present a live MWL webinar on “Iowa Workers’ Compensation Subrogation: Simple Steps To Avoid Subrogation Traps” on June 12, 2019 at 10:00-11:00 a.m. (CDT). Iowa’s workers’ comp statute is perhaps one of the most complicated in the country. This webinar will give an overview of the rights, duties, and deadlines pertinent to securing recovery in Iowa, and provide a road map to avoid common pitfalls along the way. This webinar is free to attend for anyone interested in maximizing their subrogation recoveries in Iowa.

On May 1, 2019, MWL celebrated the opening of its Austin, Texas office. To commenorate the opening our Texas office, we are offering a special one-hour webinar focusing on the nuances and details of Texas automobile subrogation. Whether you are sharpening your subrogation tools or new to the industry, this is a webinar you won’t want to miss. It will be presented July 16, 2019 by Attorney Lee Wickert of our new Austin office beginning at 10:00 a.m. (CDT).

Matthiesen, Wickert & Lehrer, S.C. is proud to announce the opening of its new Austin, Texas branch office on May 1, 2019. The office will be overseen by Gary Wickert, Jim Busenlener, and Lee Wickert. All three are licensed in Texas, and Gary is Board Certified by the Texas Board of Legal Specialization in Civil Trial Law and Personal Injury Law. Lee, a native Texan, will be living and practicing full-time in Austin while Jim and Gary will initially split time in the office and oversee its operation as we bring in new subrogation personnel.

Texas is at the forefront of enacting laws which limit or bar indemnification clauses of contracts in which the Texas legislature perceive one contracting party has an unfair advantage over the other. Texas currently has anti-indemnity statutes for commercial construction, oil and gas, and common carrier transportation. While the fact that your insured may owe contractual indemnity to an at-fault defendant may not legally bar subrogation, indemnity clauses can have a dampening effect on subrogation.

The El Paso Court of Appeals in New Hampshire Ins. Company v. Rodriguez, 2019 WL 168482 (Tex. App. 2019) has announced for the first time that a workers’ comp lien can be reduced and even eliminated by the percentage an employer’s fault bears to the total recovery or judgment in a case, even when the third-party suit or claim is brought by the employee and the carrier is simply seeking reimbursement under § 417.001(b).

Texas has historically been a very favorable venue for workers’ compensation subrogation, but it hasn’t been without its gray areas. In death cases, when an employee dies and surviving family members have received workers’ comp benefits, a careful analysis is required in order to determine and protect the subrogation and future credit rights of a workers’ comp carrier. A new Texas Court of Appeals decision sheds some light on the issue, but questions remain.

Subrogation potential often crashes and burns in the face of exculpatory agreements and liability waivers. On April 12, 2019, Attorney Lee Wickert with Matthiesen, Wickert & Lehrer’s new Austin, Texas branch office was featured in a New York Times article, found HERE, which looked at the confusing and often surprising effect that these risk-limiting agreements can have on possible third-party tort liability.

On May 1, 2019, MWL celebrates the opening of its Austin, Texas office and thanks its many auto subrogation clients, by offering a special one-hour webinar focusing on the nuances and details of Texas automobile subrogation. Whether you are sharpening your subrogation tools or new to the industry, this is a webinar you won’t want to miss. It will be presented on July 16, 2019 by Attorney Lee Wickert of our new Austin, Texas office beginning at 10:00 a.m. (CDT).

A recent Pennsylvania federal court decision reminds us that when settling third-party cases involving workers’ comp subrogation interests, it’s important to understand all the steps necessary to fully document and enforce any settlement agreement that involves a waiver or termination of any future workers’ comp benefits.

English is the official language of nearly 100 countries, not including the U.S., which doesn’t have an “official language.” America is one of the most linguistically-diverse countries in the world, which explains why we have a lot of confusion about how some words are pronounced or spelled. The word “judgment” joins a long list of words shared between the U.S. and our parent country, Great Britain.

In Youell v. Cincinnati Ins. Co., 2018 WL 6816772 (Ind. App. 2018), the Indiana Court of Appeals issued a decision that continues to leave property subrogation involving landlords and tenant up in the air and very subjective, with the “intent” of the parties being determined on a case-by-case basis looking to the terms of the lease and any other admissible and relevant evidence.

The Arizona Court of Appeals announced a year ago that A.R.S. § 23-1023 was not a statute of limitations under Arizona law in regards to the requirement that an employee must file a third-party action within the first year after an accident or obtain a “reassignment” from the employer to do so in the second year. Jackson v. Eagle KMC, LLC, 418 P.3d 997 (Ariz. App. 2018)(opinion vacated, Jackson v. Eagle KMC, LLC, 2019 WL 73631 (Ariz. 2019)). On January 2, 2019, the Arizona Supreme Court vacated that decision, confirming that the law of the foreign state under which benefits were paid determines the subrogation and assignment rights of the employer and employee.

We are pleased to announce that this month our New Orleans office celebrated its five year anniversary with the firm. The Louisiana office is overseen by MWL partner, Jim Busenlener. For many years, Jim was one of MWL’s local subrogation counsel in Louisiana. Jim has nearly three decades of experience representing insurers in subrogation, coverage, professional liability, and defense litigation, as well as maritime and commercial litigation. Jim is joined by associates Sara Huffman and Lauren Davis, paralegal Katy Ohlsson, and legal assistant Nancy Gray.

Homeowners’ insurance policies usually contain a provision obligating the carrier to repair or replace the insured’s damaged property with “material of like kind and quality” or with “similar material.” When damage caused by fire, hail, water or other causes results in a small portion of a home or building being damaged (e.g., shingles, siding, etc.), whether and when a carrier must replace non-damaged portions of a building to get a perfect “match” remains a point of contention.

A long-standing tug-of-war over whether a workers’ comp carrier can initiate a third-party subrogation action against a third-party tortfeasor on behalf of an injured employee to recoup the amount paid in workers’ comp benefits where the employee did not independently sue the tortfeasor, did not join in the insurer’s action, and did not assign her cause of action to the insurer, has ended with a disappointing Supreme Court decision.

The Minnesota Court of Appeals has confirmed how a third-party tort recovery is to be apportioned procedurally when the employer is found to be comparatively at fault. The confusing state of affairs in Minnesota has undergone changes in recent years, but the new decision in Fish v. Ramler Trucking, Inc., 2019 WL 272865 (Minn. App. Jan. 22, 2019), clarifies once and for all that the “Johnson procedure”, which turned 40 on February 16th, is still applicable and should be followed.

Ashton Kirsch, an attorney at MWL, will be presenting a live webinar on “Subrogation Magic: Creating Something Out of Nothing – MCS-90 Claims Against Uninsured Operators” on March 5, 2019 at 10:00 to 11:00 a.m. (CST). As with all MWL live webinars, they are free to attend and provide Texas CE credits. To learn more about this webinar and/or register for it, click HERE.

Recovery of loss of use is a key element of auto property subrogation. Loss of use coverage usually provides a replacement (rental) vehicle or transportation reimbursement while the insured’s vehicle is being repaired or replaced following a covered loss. States differ as to whether and when a vehicle owner is allowed to recover the value of loss of use of a vehicle during the time a damaged vehicle is being repaired or replaced. Whether you’re a vehicle owner, fleet manager, or insurance claims professional looking to enforce subrogation rights, thoroughly understanding the ramifications and parameters of loss of use claims in all 50 states can make the difference between a large recovery and no recovery at all. This article links to our new 50-state reference chart on Loss of Use In All 50 States.

It seems strange to suggest that one of history’s greatest military battles would have anything in common with modern insurance subrogation, but modern claims and subrogation handling require a symbiosis similar to that utilized by the Greek hoplites. Especially in companies with separate claims and recovery departments, subrogation victory depends on cooperation and the ability to depend on others in the claims chain. Successful subrogation recoveries heavily depend on the protection provided by the claims soldier standing to their left. There must be open and frequent communication between insurance professionals with the single objective of a successful subrogation victory in mind.

On January 11, 2019, the Texas Court of Appeals issued an opinion that will have a profound effect on Texas workers’ comp subrogation. Until now, alleged employer negligence hasn’t been a factor in negotiating workers’ comp liens in Texas. Not only does this ruling run contrary to the clear language of the statutes, it opens the door for Texas plaintiff’s attorneys to concoct theories of employer negligence and argue that your “lien” can now be eliminated based on employer negligence. If the decision stands, Texas will join the ranks of other states whose laws allow the carrier’s lien to be reduced when the employer is at fault.

Matthiesen, Wickert & Lehrer, S.C. is pleased to announce that Mingmei Zhu has joined our insurance litigation team as an associate attorney in our Wisconsin office. Mingmei is licensed to practice in California. Her practice will focus on insurance litigation, especially nationwide insurance litigation involving product liability relating to foreign manufacturers, and health insurance subrogation. She is from Changsha, China, a “small” town of 7.5 million people in central China’s Hunan province. She is fluent in Mandarin and brings her skills and experience to bear on MWL’s insurance litigation and product liability cases against foreign manufacturers.

Ashton Kirsch, an attorney at MWL, will be presenting a live webinar on “Subrogation Magic: Creating Something Out of Nothing – MCS-90 Claims Against Uninsured Operators” on March 5, 2019 at 10:00 to 11:00 a.m. (CST). As with all MWL live webinars, they are free to attend and provide Texas CE credits. To learn more about this webinar and/or register for it, click HERE.

On November 30th, a magnitude 7.0 earthquake struck Alaska, about 10 miles northeast of Anchorage. The damage appears to be limited mainly to property loss – thanks to Alaska’s stringent building codes and standards. While an “Act of God” would typically not allow for subrogation recovery, claims involving structural damage or require structural engineering should be investigated for subrogation potential. Alaska has a statute of repose for real property improvements that bars any claim ten years after date of completion of the work, so any subrogation claim must be made prior to that time expiring.

The Illinois Supreme Court has somewhat clarified an injured employee’s rights to pursue a third-party case by intervening into a third-party subrogation suit filed by the workers’ comp carrier, even after the personal injury Statute of Limitations runs.

A recent New Jersey Superior Court Appellate Division decision has ostensibly settled a long-standing subrogation question regarding whether a worker’s compensation carrier is entitled to subrogation and/or reimbursement from a third-party tortfeasor who is covered by New Jersey no-fault insurance, even if the employee doesn’t meet the verbal threshold allowing them to sue the tortfeasor.

We would like to thank our clients and local counsel for a wonderful year and wish you all a Merry Christmas, Happy Hanukkah, and a blessed Holiday Season. Regardless of what Christmas means to you, we hope your Christmas is full of holiday cheer shared with family and friends. For us at Matthiesen, Wickert & Lehrer, S.C., Christmas is just the beginning – a simple, yet wonderful reminder of Christ’s humble beginning as a human child in this world. It’s only a beginning because His birth merely set the stage for the power, glory, and salvation that would be revealed in His life, death, and resurrection come Easter morning. An important part of the holiday season is remembering those who make the holidays meaningful to us. We would like to wish you and your family all the happiness and prosperity this Season can bring and may it follow you throughout the coming year!