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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.

If a plaintiff or defendant in an auto accident lawsuit can be shown to have been using a cell phone or other hand-held devices at or near the time of the accident, and the state in which the accident occurred has a law prohibiting such activity, the action might constitute “negligence per se.” Knowing when and whether a technical violation of a cell phone law has occurred can be critical to the result obtained in adjusting losses, pressing a subrogation claim, or trying a lawsuit. Familiarity with the technical aspect of such laws, and whether they exist in the state in which an accident occurs, has become a necessity of claims handling.

The concept of experience ratings shouldn’t be a mystery. Experience ratings reward insureds who have a favorable loss history and penalize insureds who do not. So, how does subrogation fit into all of this? In theory, subrogation recoveries serve as a debit to actual loss totals and primary losses, thereby directly affecting the experience modifier. In short, one or two subrogation recoveries can mean the difference between a debt modifier and a credit modifier. Controlling experience modifiers becomes the key for insureds interested in holding their premiums to a minimum under the experience rating process.

E-cigarettes are advertised and sold as a safer alternative to traditional cigarettes. The jury is still out on it, but its becoming increasingly clear that these products come with some unanticipated risks. Specifically, the need for more power in smaller packaged batteries, which can lead to battery cell explosions. Injuries from e-cigarette battery explosions can be heinous and the property damage resulting from their explosions can be extensive. Holding e-cigarette battery manufacturers accountable for the resulting injuries and property damage has several obstacles.

Matthiesen, Wickert & Lehrer, S.C. is growing! We would like to announce the joinder of three new attorneys to our firm—one in California (Charlene Busch), one in New Orleans (Sara Huffman), and one in our Wisconsin office (Lee Wickert). On behalf of everyone here at MWL, we would like to welcome them all to our firm.

Delays in Referring File to Subrogation Counsel Can Be Expensive. The moment you know a lawsuit has been filed by an insured or an injured employee, the fuse is lit. Many states have short statutes that eliminate or significantly reduce your recovery rights if timely action is not taken. In Colorado, failure to intervene means automatic reduction of your lien by more than one-third. In Connecticut, the fuse is thirty days, after which you lose your entire subrogation interest. Similar land mines exist in Iowa and many other states.

Extinguishing Third-Party Liability as a Prerequisite to Contribution. The absence of a simple sentence in a release signed by the claimant after settling a liability claim is costing liability carriers millions of dollars in contribution recoveries across the country. By the time they are discovering the mistake, it is too late.

When multiple insurers provide coverage for a single loss or accident, things can get confusing. Coinsurance can arise as a result of conscious risk-sharing or accidentally when two policies have overlapping coverage. Litigation involving who pays what, when, and in what order has become a cottage industry involving both subrogation and contribution. Understanding all concepts and applying them to the facts of a claim or loss is enough to make your head explode.

On February 29, 2018, the Wisconsin Legislature amended § 102.29 in several places, clarifying that a leased or loaned employee who “has the right to make a claim for compensation” is barred from filing a third-party lawsuit. The law is effective as of March 2, 2018 and applies to workers’ compensation claims made or civil tort claims filed on or after that date.

Gary Wickert and Jim Busenlener will be providing a complimentary webinar on Longshore & Harbor Workers’ Compensation on April 11, 2018 from 10:00 to 11:30 a.m. (CDT). For more information or to register for this webinar, click HERE.

In Wisconsin, the Exclusive Remedy Rule, which prevents an employee from suing his employer in tort, isn’t all it’s cracked up to be. On January 6, 2018, in Rivera v. Alpine Insulation and West Bend Mutual Ins. Co., 2018 WL 334447 (Wis. App. 2018), the Wisconsin Court of Appeals held a temporary employee on loan to a special employer can either file a workers’ comp claim or file a third-party tort suit against the special employer.

Even seasoned subrogation professionals can overlook these key elements when investigating the recovery of a property damage claim due to a “frozen” pipe. Do not give these claims the cold shoulder, and you could receive a warm response to your subrogation inquiries.

On January 26, 2018, the Texas Supreme Court refused to review the July 14, 2016 decision by the Texas Court of Appeals in Insurance Co. of the State of Pennsylvania v. Roberts. Matthiesen, Wickert & Lehrer had filed an amicus brief on behalf of the National Association of Subrogation Professionals (NASP) in the case. This establishes the Court of Appeal’s decision as good law and will serve as a boon to Texas workers’ compensation subrogation efforts despite the presence of waiver of subrogation endorsements.

Already known for hosting the country’s premier website for subrogation resources, MWL unveiled its new YouTube Channel, featuring recorded subrogation training videos and our attorneys will soon be uploading short weekly videos answering questions and addressing hot topics related to subrogation. Please visit us on YouTube and don’t forget to subscribe! We also welcome you to follow all our social media pages as they will assist you in keeping informed on developments and changes in the law that effect the industry, which is key to obtaining the best results and could mean the difference between successful recoveries and no recoveries at all.

Proving reasonable value of medical services has become controversial and confusing. Every state has gone its own way in dealing with the issue. An understanding of how medical expenses are proven and recovered in civil litigation is a necessity for legislators, lawyers, claims professionals, and judges alike. This article provides an overview of the law regarding the pleading, proof, and recovery of past medical expenses that have been fully or partially paid by collateral sources, such as private insurance. Our newest 50-state chart entitled “Medical Billing, Insurance Write-Offs, and the Collateral Source Rule” is also introduced in this article.

The Amtrak Cascades 501 departed Seattle on its inaugural voyage on December 18, 2017 and, just after 7:30 a.m., it derailed at high speed causing three fatalities, dozens of injuries, and widespread destruction. Ideally, the parties liable for rail disasters are made to bear the cost of damages through subrogation. That may occur, depending on the facts and circumstances, but in serious cases, a lesser-known federal statute can leave insurers and insureds woefully under-compensated. Insurers, plans, and employers may be wise to start their subrogation efforts and get on board early so that they can assert and protect their rights throughout the complex litigation process.

After considering a motion brought by the plaintiffs in 46 actions pending in nine federal districts across the country, the Judicial Panel on Multidistrict Litigation (MDL) entered an order transferring those actions to the Northern District of Ohio for coordinated or consolidated pretrial proceedings. Those cases represent only a fraction of the cases recently filed against numerous manufacturers of prescription opioid medications. Centralization will likely swell what has already been a deluge of claims against the drug makers. The vast majority of cases filed to date have been brought by governmental plaintiffs—states, counties, and municipalities—but the filing of claims by third-party payors has begun to pick up speed as well.

As the weather starts to turn colder (at least here in the Northern states), our thoughts turn to the holidays and all the joys of the season. Unfortunately, it can also bring on property loss claims involving fires caused by Christmas trees, fireplaces, candles, etc. As with any investigation into the cause of a fire, care must be taken in the initial inspection to identify and recover all potential devices that may have caused the fire.

There is an “uneasy peace” between liability carriers and PIP carriers with regard to PIP subrogation. The uncertainty and potential cost-ineffectiveness of PIP subrogation, combined with the fact that doctors prefer the reimbursement rates from health plans over those of PIP or Medicare, means that Hawai’i sees relatively little PIP subrogation and reimbursement. Notwithstanding all the confusion and disagreement overshadowing PIP subrogation and reimbursement, there is a little known “loophole” that makes PIP subrogation simple and straightforward in certain cases.

On December 11, 2017, the New Jersey Supreme Court handed injured employees and struggling small businesses in New Jersey a huge victory. In Vitale v. Schering-Plough Corp., A-20-16; 078294 (N.J. December 11, 2017), the Court of Appeals affirmed a trial court’s ruling that a contractual limitation on the right of an employee to sue a third-party tortfeasor was unenforceable as against public policy. The Supreme Court affirmed that decision, preserving the employee’s right to sue and the employer’s (and its workers’ compensation carrier) right to reimbursement from that lawsuit, despite a written waiver which the employee agreed to.

Matthiesen, Wickert & Lehrer, S.C. would like to thank all our clients and local counsel for a wonderful year and we 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!

Last months’ issue of the Medical Care magazine estimated that the societal cost of the U.S. prescription opioid epidemic tops $80 billion and is growing. Health insurers and workers’ comp carriers shoulder about one-third of this cost, while only one-fourth of it is borne by the public sector. For employers and workers’ compensation carriers, this means that even employees who don’t fit the stereotype of drug users will struggle with this potentially deadly addiction. The crisis has led directly to increased workers’ compensation costs.

In claims involving personal injury or property damage caused by the negligent operation of a stolen vehicle, operated by the thief who stole the vehicle, we are confronted by the issue of whether the owner of the stolen vehicle is responsible for the subsequent negligence and damage caused by the theft. Claims and subrogation professionals must know the law involving liability resulting from stolen vehicles if they are to competently handle claims and seek recovery of those claims dollars from a third party responsible for the loss. This article also contains a link to our newest 50-state chart on this topic.

Changing Times Require Changing Tactics. Lady Justice, the blindfolded woman carrying a sword and a set of scales, symbolizes the fair and equitable administration of justice, without corruption, greed, prejudice, or favor. Lately, however, she’s been looking for work. It seems that the hallowed halls of justice we call courtrooms are being used less frequently. This is especially true when subrogation claims, which tend to be smaller, liquidated claims, are involved. Subrogation professionals should recognize that there is a skill to effectively resolving cases for maximum value just as there is to trying a case.

Driverless cars – more appropriately known as “autonomous vehicles” – are here to stay, and we have only just begun to see the shockwaves to and ramifications for the $225 billion auto insurance industry. Last month, Business Insider reported that the revolutionary automaker Tesla, based in Palo Alto, California, struck a deal with Liberty Mutual to create a customized auto insurance package – one that is destined to disrupt the auto insurance industry.

Beginning July 1, 2018, Maryland auto insurers issuing new policies will be required to offer enhanced underinsured motorist (“EUIM”) coverage in place of the uninsured motorist (“UM”) coverage required under § 19-509. Md. Code Ins. § 19-501.1(d). Unlike UM coverage, EUIM coverage prohibits the carrier from reducing the coverage amount by any applicable liability insurance paid on behalf of a liable third party. Md. Code Ins. § 19-501.1(h)(2). Essentially, claimants who elect EUIM coverage will be able to stack their EUIM payment on top of anything they receive from a responsible third-party’s liability policy without any offset.

Every subrogation claim has a story that tells your audience (a supervisor, a liability adjuster, an expert, adverse defense counsel, a jury) what happened. The story is the roadmap for how you will handle the subrogation claim, and explains to an adverse party what their liability is and why they should pay you for the damages incurred. However, often times, the subrogation claim’s story gets lost. In order to properly tell a claim’s story, you will first need to perform some investigation and ask some questions.

According to a 1999 study commissioned by the Alliance of American Insurers (AAI), if you were to build a $25,000 vehicle using only Original Equipment Manufacturer (OEM) parts, it would cost you over $100,000. There is an ongoing debate over the use of non-OEM parts and the laws and regulations overseeing the use of them in repairing damaged vehicles are confusing and inconsistent. Insurance professionals must be aware of the current legislation and regulations within each state regarding use of aftermarket (non-OEM) crash parts in order to properly adjust each claim. This article contains a link to our newest 50-state chart on this topic that takes a closer look at the specific laws and regulations in each state.

There is seemingly no end to the attacks on a workers’ compensation carrier’s rights of subrogation and reimbursement when a third-party is liable for a work-related injury. In New Jersey, however, the Supreme Court will soon be deciding whether an employee is prohibited from suing a customer of his employer, when forced to sign a waiver of this right as a condition of employment. On Tuesday, September 26, 2017, lawyers for Philip Vitale and Schering-Plough Corporation — through successor Merck & Co. — argued their case to the New Jersey Supreme Court.

The game of musical chairs regarding the Illinois law that requires mandatory arbitration of auto physical damage subrogation claims is finally over. The music has stopped and the statute has been repealed. The needless expense and waste of time associated with the statutory requirement of mandatory arbitration between auto carriers for property damage subrogation claims involving amounts less than $2,500 is now a thing of the past.

As of August 31, 2017, with the Arizona Supreme Court decision in Twin City Fire Insurance Co. v. Leija, No. CV2012-004506 (Ariz. 2017), workers’ compensation carriers everywhere will have to be more proactive and engage subrogation counsel much sooner, in order to protect their subrogation and/or reimbursement dollars. The workers’ compensation carrier will be put to the burden of proving that the employer wasn’t at fault. If the carrier wasn’t involved in the discovery during the litigation as a result of intervening through subrogation counsel, its chances of prevailing will dwindle to almost nothing. Arizona now becomes like California, where subrogation counsel must be involved early in order to avoid and/or be prepared for the employee settling around the carrier.

On September 26, 2017, a truck spilled thousands of roofing nails on Interstate 10 in Metairie, Louisiana (a suburb of New Orleans). Hundreds of vehicles rolled over the nails and sustained punctured tires, resulting in replacement of tires that may total as much as $1,000 per vehicle. As a result, Louisiana auto property insurers may receive many new claims for replacement tires, towing charges, and rental vehicles.

Matthiesen, Wickert & Lehrer, S.C. (MWL) proudly announces the opening of its new branch office in California located at 500 N. State College Blvd., Suite 1100, Orange, California 92868, with convenient access to state and federal courts in Los Angeles, San Diego, and the Central Valley. While our national subrogation program still produces tremendous results for our clients by utilizing a Local Counsel Network of contracted law firms strategically located throughout all 50 states, Mexico, and Canada, the volume of recovery work we have pending in California calls for this new branch office on the west coast. The California office will be overseen by MWL’s newest partner, Hector Salitrero, who has for years been handling MWL subrogation work in the Golden State. Hector is licensed to practice law in all state and federal courts in California and is also licensed in Wisconsin.

On May 2, 2017, the Wisconsin Court of Appeals outlined why an insurance carrier that fails to defend an insured without first seeking a judicial determination of no coverage does so at its own peril. See Country World Media Group, Inc. v. Erie Ins. Co., 2016 WI App. 1343. Wisconsin insurance carriers should take note of this decision before deciding to unilaterally deny any insured’s tender of defense.

The Iowa legislature has finally acted on the call by Iowa business groups to overhaul Iowa’s workers’ compensation system. For years, they have claimed that the state’s system has tilted unfairly toward injured workers and significantly raised employers’ costs. Many have called Iowa’s workers’ compensation system an “unsustainable litigious lottery.” In March, the changes became official. The primary purpose for these changes was to add efficiency to the system and reduce what was supposedly an overly burdensome workers’ compensation system.

Recently, in Kaitlin Woods Condominium Ass’n v. Kaitlin Woods, LLC, et al., 2017 WL 3234370 (Wis. 2017), the Wisconsin Court of Appeals upheld a “synthetic stucco” (also known as Exterior Insulation and Finish System (EIFS)) exclusion in a commercial general liability policy. The facts of the case are quite common — damages caused by water allegedly stemming from construction defects. As is increasingly the case, the insurer for the general contractor had a “synthetic stucco” exclusion in place that excluded insurance coverage if a building contained “synthetic stucco.”

Recently, Matthiesen, Wickert & Lehrer, S.C. (MWL) successfully argued an appeal regarding a firefighter’s claims of defamation. The dispute stemmed from a local television broadcast in which a reporter discussed the disabled status of the local firefighter. The firefighter had injured his elbow and ulnar nerve, (commonly called the “funny-bone”) resulting in numbness and tingling of his fingers. Despite that injury, and resulting disability rating as determined by the State’s doctors, the firefighter was able to do things like compete in triathlons, water ski, and partake in other physically taxing activities. MWL’s client, the fire chief, made comments to the local TV reporter about the situation. This story was ultimately picked up by a national television broadcast, and debated on a relatively highly-rated television show by guest commentators.

Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to announce that Isaiah Richie has joined our insurance litigation team as an associate attorney in our Wisconsin office. Richie is licensed to practice in Colorado and Wisconsin and his practice will focus on insurance litigation, especially nationwide insurance subrogation involving health insurance, Medicare Advantage Plans, workers’ compensation, auto insurance, and property and casualty. Formerly a clerk at the Colorado Court of Appeals and the Arizona Court of Appeals, Isaiah brings with him the precise blend of multi-state experience which is the hallmark of MWL’s 50-state insurance litigation program. His appellate court experience has led to a keen understanding of the fact that the power of the lawyer is the uncertainty in the law. He’s anxious to help that uncertainty work in favor of MWL’s clients.