Every experienced recovery professional understands the temptation. A plaintiff’s attorney acknowledges the lien, says it will be “protected,” and promises to deal with reimbursement when the injury claim resolves. The file appears to be under control. Everyone is communicating. No one is openly refusing to cooperate. But a recent Wisconsin Court of Appeals decision shows why that sense of security can be dangerous.
In Fredach v. Illume Cosmetic Surgery & MedSpa LLC, No. 2025AP1061 (Wis. Ct. App. Aug. 19, 2026), the plaintiffs’ case did not fail because defense did not know about it. It failed because plaintiffs did not complete a required legal step. The Wisconsin Court of Appeals put the larger point plainly: an opposing attorney is a zealous advocate for that attorney’s own clients, and there is no corresponding duty to an opposing party. In other words, the lawyer on the other side is not there to save you from your own missed deadline, missed requirement, or missed opportunity.
That is what makes Fredach seem so startling. The plaintiffs’ lawyer emailed a courtesy copy of the summons and complaint. Defense counsel knew the lawsuit existed. There was even discussion about whether defense counsel could accept service. To a non-lawyer, that may sound like enough. It was not. The court focused on whether service was actually completed as the law requires. Because it was not, the plaintiffs lost their claims without any regard for the merits.
The timing made the result feel even harsher. The defense filed their motion on the service problem after the deadline to fix it had passed and the statute of limitations had expired. At that point, the plaintiffs could not simply correct the mistake and move forward. They argued this was gamesmanship: the defense knew about the lawsuit, waited until the defect became fatal, and then used it to end the case. The court was not persuaded. It held that defense counsel had no obligation to walk the plaintiffs through the service problem or help them preserve their claims. Defense counsel’s duty was to zealously represent the defense clients, not to protect the opposing party from a procedural mistake.
The lesson for subrogation professionals is not about service of process. It is about assuming that another party’s lawyer will protect your interest. Plaintiff’s counsel may be professional, responsive, and well-intentioned. That does not make plaintiff’s counsel responsible for preserving the recovery claimant’s rights. If a lien, reimbursement, or subrogation issue is left unresolved until the money has already moved, the recovery claimant may discover too late that no one on the other side had any duty to fix the problem.
This matters in the real world because recovery problems usually do not announce themselves in dramatic fashion. They develop quietly. A lien letter is acknowledged but never resolved. Settlement negotiations move forward without the recovery interest at the table. Funds are distributed before agreement is reached. Allocation or priority arguments appear late in the process. By the time the recovery claimant realizes that “we will protect the lien” was not the same thing as a binding agreement, the recovery may already be compromised.
A plaintiff’s attorney may be focused on maximizing the client’s net recovery, reducing or eliminating claimed reimbursement, allocating settlement proceeds in a way that benefits the client, or closing the case quickly. None of those goals is improper. They are simply not the subrogation claimant’s goals. That conflict is exactly why relying on opposing counsel to protect the recovery interest can turn a good recovery opportunity into an avoidable loss.
Fredach is a reminder that notice is not the same thing as protection. Awareness of a lawsuit was not service of a lawsuit. By the same token, awareness of a reimbursement, lien, or subrogation claim is not protection of that claim. A letter, email, or informal acknowledgment may prove that someone knew about the recovery interest. It may not secure funds, resolve priority disputes, defeat allocation arguments, or preserve remedies against the appropriate parties.
The practical response is simple: treat recovery rights like rights that must be actively protected, not favors that opposing counsel will remember to honor. That means confirming the governing policy, plan, statute, or contract language, identifying the legal basis for recovery, documenting notice, monitoring settlement activity, and obtaining clear agreement before money changes hands.
Independent subrogation counsel can assist with that effort by:
- confirming the governing policy, plan, statute, contract, or other legal basis for recovery;
- giving timely, documented notice of the recovery interest;
- monitoring litigation and settlement developments;
- responding to reduction, allocation, and priority arguments; and
- negotiating and, when necessary, enforcing recovery rights before funds disappear.
The bottom line: Fredach may be a service-of-process case, but its warning applies far beyond service. Opposing counsel is not your safety net. If a subrogation or reimbursement claimant wants its recovery interest protected, someone with a duty to that interest needs to be watching the file before the settlement proceeds are gone.
For questions about protecting a lien, reimbursement, or subrogation interest in a pending third-party claim, please contact Katelyn Paider at kpaider@mwl-law.com.
