September 2013 Subrogation Newsletter
The National Association of Subrogation Professionals’ (NASP) 2013 Conference will take place in San Diego, California, November 3-6, 2013. MWL always makes every effort to keep in touch with its clients and we would like to take this opportunity to meet with any of our clients who will be there. If you are an existing MWL client and will be at this conference, we welcome you to join us for a client appreciation dinner on Monday night, November 4, so that we can personally thank you for entrusting MWL with the task of recovering your subrogation dollars. We know you have choices and we sincerely appreciate your business. Seating is limited so, at your earliest convenience, please contact contact Marcia Bender at [email protected] to let her know if you can join us.
It’s unthinkable that urban legends and tall tales might affect the outcome of Supreme Court decisions or find their way into legal precedent – but one has. The U.S. Constitution Article I § 10 prohibits states from impairing contract obligations and the freedom to contract is an enforceable constitutional right under the 14th Amendment. But, that didn’t stop the New Mexico Supreme Court from believing in its own specious urban legend – that all subrogation is equitable. In Sunnyland Farms, the Supreme Court held that an assignment of subrogation interest is ineffective because subrogation is equitable. In this questionable ruling, the Supreme Court failed to recognize that there are three varieties of subrogation – equitable, contractual, and statutory.
Until July 30, 2013, Connecticut was still one of the few states which hadn’t officially adopted the equitable Made Whole Doctrine in a subrogation setting. However, the new Supreme Court decision in Fireman’s Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc., 2013 WL 3818112 (Conn. 2013) has changed that. In their recently-released decision, the Court not only adopted the Doctrine, but it also clarified that the Doctrine was not relevant when it comes to an obligation to reimburse a deductible.
For years, North Dakota has passively applied the Common Fund Doctrine, but never in connection with a subrogation claim. In Hayden v. Medcenter One, Inc., the North Dakota Supreme Court was again asked to apply the Doctrine, this time to a case in which a patient was seeking expenses and attorney’s fees from the medical providers for expenses and attorney’s fees incurred in securing payments from a patient’s medical insurance company. The Supreme Court got as close as it had ever been to applying the Doctrine, and even discussed the Doctrine in a subrogation setting, but stopped short of adopting the Doctrine in North Dakota.