Settling Subrogation Claims and the Dreaded Release
When settling subrogation claims, a keen insight into the inner workings of releases and settlement agreements is needed to negotiate harmful release language out of releases and protect the company from future liability. When in doubt, have subrogation counsel assist with the review of your settlement agreements and release language. It may save you from considerable expense and future liability. Article written by Gary L. Wickert and Lee R. Wickert, published by the Claims Journal on January 5, 2021.
Settling Subrogation Claims And The Dreaded Release
Release Language, Indemnity, Hold Harmless, and Other Concerns. The bane of any subrogation professional’s existence is the dreaded release. If you’re not careful, you will wish you had never settled the case in the first place. Article written by Gary L. Wickert and Lee R. Wickert, published in Claims Pages on December 1, 2020.
Federal Tort Claims Act Subrogation
Federal Tort Claims Act subrogation against the federal government requires preparation and timing. When a federal employee, U.S. Postal Service vehicle, or other federal apparatus is involved in an insurance claim, subrogation should be at the top of the list of claims handlers’ responsibilities. By Gary L. Wickert, published by Claims Journal on July 16, 2020.
Beware Of The COVID-19 Statute Of Limitations Trap
It’s safe to say millions of subrogation claims have statutes of limitations or statutes of repose which were set to expire during the last few months. Many states are now lifting the suspension of the statutes of limitations, and our industry will undoubtedly see many statutes expiring before practitioners knew the tolling had been lifted. Subrogation professionals must pay attention to the applicable state order or court rulings when determining the effect of the order on computing time for a statute of limitations. Written by Lee R. Wickert, published on ClaimsPages.com on June 1, 2020.
Insurers Face Delicate COVID-19 Coverage Decisions
There are many important factors to consider when analyzing an insurance policy for Coronavirus-related coverage or making delicate COVID-19 coverage decisions. This article is an introduction to the issue and outlines important items to consider when reviewing your policy for coverage. Written by Ashton T. Kirsch and Sarah “Sally” Fry Bruch, published by Claims Pages on April 29, 2020.
Viewpoint: What the Government Can and Should Do in Response to COVID-19
The world-wide spread of COVID-19 (Novel Coronavirus) presents us all with rather interesting questions about the power and role of federal and state government. What are the laws in all 50 states granting the government authority regarding quarantine and isolation. Written by Gary L. Wickert, published in Claims Journal on March 31, 2020.
Subrogation Settlements and the IRS
Most subrogation recoveries constitute a taxable settlement. Subrogation professionals, recovery vendors, and attorneys representing subrogated carriers, self-insureds, and vendors, should be prepared to address the requirement of providing Form W-9’s and even Form 1099-MISC’s following or in conjunction with settlement of a subrogation claim. Written by Gary L. Wickert, published in Claims Journal on January 10, 2020.
Beating The Statute of Limitations: Filing Suit is Only Half the Battle
An action is usually commenced within the statute of limitations by filing a summons and/or complaint. Filing the complaint, however, is only the first step. Where service of the complaint on defendant isn’t pursued with reasonable diligence or obtained within a prescribed number of days after filing, defendant may argue the statute of limitations has run and the lawsuit should be dismissed, even if it was timely filed. Written by Gary L. Wickert, published by Claims Journal on December 10, 2019.
Florida Returns To Daubert Standard For Admission Of Expert Testimony
On May 23, 2019, the Florida Supreme Court walked back its earlier decision in DeLisle, noting that pursuant to its rulemaking authority under the Florida Constitution, it was specifically adopting § 90.702 (Daubert standard) as the “new” rule in Florida. Written by Gary L. Wickert, published in Claims Pages on October 4, 2019.
Subrogation Counsel, Data Breaches, And Cybersecurity
What do you know about the strengths and weaknesses of the cybersecurity measures taken by the subrogation counsel and recovery vendors you engage to assist with subrogation recoveries? This article outlines the questions you should be asking your subrogation counsel to ensure your insured’s data is safe from data breaches. Written by Gary L. Wickert, published in Claims Journal on August 26, 2019.
Pay Attention To The Man Behind The Curtain: Preparing For Your Federal Court Appearance
This article will demystify some of the more common of many challenges of subrogating in federal court so that you can better represent your client’s subrogation interests. Written by Hector Salitrero, published in the NASP Subrogator Spring-Summer Issue, 2019.
Demystifying Specialty, Wholesale, Surplus Lines and Specialty-Admitted Insurance
Subrogation professionals are often required to deal with a variety of insurance companies, including those admitted or licensed to transact business in a particular state and those which are not. Understanding the difference can assist the subrogation professional in the daily handling of claims. This article will demystify Specialty, Wholesale, Surplus Lines and Specialty-Admitted Insurance. Written by Gary L. Wickert, published in Claim Journal on March 6, 2019.
Equitable Subrogation/Contribution Among Co-Insurers and Duct Tape
Why You Can’t Have One Without The Other. When multiple insurers provide coverage for a single loss or accident, things can get confusing. Coinsurance can arise from 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 subrogation and contribution. Understanding all concepts and applying them to the facts of a claim or loss is enough to make your head explode. Written by Stephen Smith, Claims Journal, January 28, 2019.
Subrogation Savoir-Faire: What You Don’t Know Can Hurt You
In the world of claims handling and insurance subrogation, knowledge is power. We often see the aftermath of clients waiving significant subrogation interests or paying on claims that, had the law or issues been recognized and understood, would have turned out differently. Information is the most valuable commodity our industry possesses, and its free for the taking. All that is required is a minor investment of time and a willingness to learn. By Gary L. Wickert, Claims Pages, November 30, 2018 and Claims Journal, December 6, 2018.
Tautology and the Art of Listening
Tautology is the use of different words to say the same thing or repeating the same thing twice, often in the same sentence. Most people don’t even realize they’re doing it. Tautology clutters otherwise simple communication. Insurance and subrogation claims professionals should be aware of one of the most common mistakes made in professional and interpersonal communication. Written by Gary L. Wickert, published in Claims Journal on September 6, 2018.
The Blame Game: Understanding Exculpatory Agreements And Liability Waivers
Insurance and subrogation professionals must become familiar with the legal and binding effect of exculpatory agreements and liability waivers to evaluate liability claims and subrogation potential. This article links to our newest chart on this subject that provides a brief and general summary of how exculpatory clauses are treated in all 50 states. Written by Lee R. Wickert, published by Claims Pages on June 1, 2018.
The Cost of Subrogation Procrastination
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. Learn why this is the number one mistake that carrier’s make. Billions are lost annually because subrogation doesn’t get the respect or attention it requires. Written by Gary L. Wickert, published by Claims Journal on April 5, 2018.
Navigating The Anti-Subrogation Rule
The public policy underlying the Anti-Subrogation Rule (ASR), the stated purposes for its application, and the exceptions to its application, must all be understood thoroughly in order to effectively subrogate and to avoid the elimination of subrogation in cases that it otherwise could have been avoided. A link to our 50-state chart that provides an overview of the ASR and sets forth the exceptions to and nuances of its application in each state can be found in this article. Written by Gary L. Wickert and Jacob Coz, published in Claims Journal on August 3, 2017.
10 Subrogation Mistakes Insurance Companies Keep Making
Subrogation is the necessary evil of recovering as much of our insureds’ claim dollars as possible in order to help hold down insurance premiums and soften the blow a claim event might otherwise have. No industry is perfect and insurance is no exception. Thirty-three years of subrogation litigation experience has distilled ten of the most common mistakes which we see clients make when it comes to recognizing and acting on subrogation potential. I divulge and discuss them in this article not as a criticism of the clients to whom we owe the living we make, but as a healthy reminder to those who do not wish to repeat them. By Gary L. Wickert, published in Claims Journal on July 6, 2017.
Robo Claims: When Robots Injure Humans
Around the world, robots are increasingly being used to perform menial and complex labor tasks in the home and in the workplace. Like any machine, robots aren’t perfect. When they fail, there can be catastrophic results which lead to catastrophic claims. Claims handlers will need to be prepared for claims involving robot defendants. Written by Gary L. Wickert, published in Claims Journal on May 5, 2017.
Subrogating Hawaii: Navigating the Subrogation Trade Winds In The Middle of Nowhere
Hawai’i. There is so much unique about our 50th state that it is only fitting that subrogation there be both unique and challenging as well. 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 Hawai’i. Written by Gary L. Wickert, published in Claims Journal on December 8, 2016.
Sales And Use Taxes On Subrogation Services
Navigating The Sales Tax Maze In South Dakota, New Mexico, And Hawaii. As a means of raising revenue, particularly during times of economic crisis, a handful of states employ, and many states repeatedly revisit, the dubious and counter-productive scheme of imposing a tax on professional services, whether as a sales tax (including lifting an exemption in many states’ sales tax code for professional services), use tax, excise tax, gross receipts tax, or as a new form of fee applicable only to professional service providers. This article takes a look at the three states which directly tax legal services. Written by Gary L. Wickert, published in Claims Journal on October 20, 2016.
Making Subrogation While The Hay Shines
Every year in North America insurers pay out tens of millions of claim dollars resulting from fires and feed damage caused by the spontaneous combustion and heating of hay mow – a pile of hay stored in or near a barn. Spontaneous combustion is the result of a chemical reaction that occurs when combustible materials combine with oxygen, generating heat which eventually ignites the hay. Subrogation opportunities abound once you realize that the careless storage of hay can result in a catastrophic fire and that the wetter the hay, the more likely it is to start on fire. Written by Gary L. Wickert, published in Claims Journal on January 7, 2016.
If It Seems Too Good To Be True: The Problem With Cut-Rate Subrogation Vendors
A new generation of opportunistic subrogation and claims vendors, often owned by lawyers who have experienced first-hand the cost-conscious insurance industry’s attraction to low rates, has had great success by offering contingent fee rates too good to be true. The lowest contingent fees guarantee that many files will be settled for less than their true value and that larger files that should see the inside of a courtroom in order to get top dollar never will. Like insurance catnip, however, the low contingent fees serve up the mirage of fee containment while simultaneously devaluing an entire book of business. The only winner here is the short-lived vendor, who profits by selling short the wheat and leaving the client with the devalued chaff. Written by Gary L. Wickert, published in Claims Journal on November 5, 2015.
Feds To Require Speed Limiters On Trucks
The Department of Transportation (DOT) is about to mandate the use of speed limiters – also known as Electronic Control Modules (ECM) – on certain trucks traveling U.S. highways. The department’s March 2014 “Report of Significant Rulemaking” states that this new rule may become reality as soon as October 2014. Written by Gary L. Wickert, published in Claims Journal, May 1, 2014.
Liability for Allowing Drunk Driving: The Death of Personal Responsibility?
It used to be that friends wouldn’t let friends drive drunk because they cared about their friends. Today, it’s become a legal obligation. Imposing liability on a person for failing to inject himself as a surrogate parent into the life of another person, strangers and friends, is a bad idea. It opens a Pandora’s Box of devastatingly-bad legal precedent. Our laws reflect our society and, as a society, we are witnessing the slow death of personal responsibility. Written by Gary L. Wickert, published in Claims Journal, January 2, 2014.
Understanding Comparative Fault, Contributory Negligence and Joint & Several Liability
Effective subrogation requires a thorough understanding of some of the more confusing legal terms we must all work with. MWL has compiled a list of the various laws in every state dealing with whether the state is a contributory negligence state (bars recovery with only 1 percent of fault by the plaintiff) or a comparative negligence state (recovery by plaintiff is reduced or prohibited based on the percentage of fault attributed to the plaintiff), and whether the state is a pure comparative or modified comparative state. Claims Journal, September 5, 2013.
Gathering Pebbles: Subrogation’s Burden Of Proof
Subrogation’s burden of proof article serves as a reminder to subrogation professionals that the burden of proving someone or something has caused property damage or personal injury is on the subrogated insurance carrier. Written by Gary L. Wickert, published in Claims Journal, August 1, 2013.
Understanding Experience Modifers: Can Subrogation Really Affect Premiums?
For many corporate personnel, the concepts of underwriting and experience ratings remain a clouded mystery, yet they directly affect the amount of insurance premiums a company will pay. A look at how subrogation improves loss histories and helps keep premiums low. Written by Gary L. Wickert, published in Claims Journal, January 4, 2013.
Insurers Liability For Negligent Inspections (PDF)
A look at the insurers liability for negligent inspections conducted on an insureds premises, also known as field inspections or loss control surveys. Self-Funding Magazine.Com, February 2011
Subrogation And The Seat Belt Defense
A look at the seat belt laws and seat belt defense for all 50 states. Self-Funding Magazine, September 8, 2010
The Societal Benefits Of Subrogation (PDF)
A look at the origin and purposes of subrogation and the important role it plans in society and to an insurance company’s bottom line. Self-Funding Magazine.com, September 8, 2010
Squeezing The Turnip: Fidelity And Surety Bond Subrogation (PDF)
The ABCs of subrogating fidelity and surety bonds and identifying and pursuing alternative sources of recoveries when employee honesty results in claim payments. NASP Subrogator, Spring/Summer 2007
Contracting Away Made Whole: Does The Made Whole Doctrine Apply If Your Policy/Plan Says It Doesn’t? (PDF)
A look at how different states handle insurance contracts containing language disclaiming the Made Whole Doctrine. NASP Subrogator, Fall 2006
Where’s The Deductible? A Survey Of Laws Regarding Reimbursement Of An Insured’s Deductible In All 50 States (PDF)
A look at what the carrier’s obligation is with regard to reimbursing its insured’s deductible. NASP Subrogator, Spring/Summer 2006
Subrogating South Of The Border: Increasing Recovery Opportunities In Mexico (PDF)
A look at subrogating in Mexico. NASP Subrogator, Fall 2004
The Paper Chase: Subrogating In A Paperless World (PDF)
A look at insurance companies going paperless. NASP Subrogator, Spring/Summer 2003
Understanding Waivers Of Subrogation (PDF)
A look at what constitutes an effective waiver of subrogation. NASP Subrogator, November 2000
Many Insurers Overlook Advantages of Subrogation (PDF)
A look at why subrogation is important to the insurance industry. Best’s Review, Volume 96, No. 6, October 1995
Subrogation And The Self-Insured (PDF)
Discusses issues facing self-insured companies seeking recovery of losses due to third-party tortfeasors. Texas Corporate Counsel Law Review, Fall 1995
Health and ERISA Subrogation
Medical Billing, Insurance Write-Offs and the Collateral Source Rule
A thorough understanding of how medical expenses are proven and recovered in civil litigation is a necessity for claims specialists. Article includes a link to our 50-state chart on this topic. Written by Gary L. Wickert, published in Claims Journal, January 11, 2018.
Victory For ERISA: U.S. Supreme Court Unanimously Holds Equity Doesn’t Trump Plan Language
On April 16, 2013, the U.S. Supreme Court issued its long-anticipated decision in U.S. Airways, Inc. v. McCutchen, 2013 WL 1567371 (2013), a case in which the future of ERISA health insurance subrogation hung in the balance. Subrogation won, trial lawyers lost. In a rare unanimous decision, the Court ruled that equitable principles (e.g., the Made Whole Doctrine and Common Fund Doctrine) cannot override the clear terms of an ERISA Plan requiring reimbursement. Written by Gary L. Wickert, published in Claims Journal, May 2, 2013.
DAVID vs. GOLIATH: I.R.S. Tax Lien vs. Med Pay Subro Lien
On March 14, 2013, this classic tale of the underdog prevailing against great odds was recently replayed in a subrogation context in the case of Simmons Perrine Moyer Berman, PLC v. Coleman which was decided by a federal district court in Iowa. Goliath lost, and State Farm was entitled to recover their Med Pay subrogation interest. Written by Gary L. Wickert, published in Claims Journal, April 4, 2013.
Insurers Are Leaving Money On The Table If Subrogation Audit Ends With Questionnaire (PDF)
Gary Wickert is interviewed on the importance of subrogation and how subrogation can represent a substantial source of income for health plans, even though its technically reimbursement and not income. Subrogation is a significant piece of the insurance underwriting puzzle. Health Plan Week, Volume 20, No. 36, October 11, 2010
Subrogation And Medicare Set-Asides (PDF)
A look at Secondary Payer reporting requirements that create traps for subrogation professionals. NASP Subrogator, Spring/Summer 2010
Turning Off The Spigot: Future Credits In Health Insurance Subrogation (PDF)
A look at how to document and obtain future credits in health insurance subrogation. NASP Subrogator, Winter 2009
Subrogating Fully-Insured ERISA And Non-ERISA Employee Welfare Benefit Plans (PDF)
Tips for maximizing recoveries when subrogating fully-insured and non-ERISA health Plans. NASP Subrogator, Winter 2006
Health Insurance And ERISA Subrogation – Part 5: ERISA Preemption And The Common Fund Doctrine (PDF)
A look at ERISA preemption and the Common Fund Doctrine. NASP Subrogator, Winter 2006
Health Insurance And ERISA Subrogation – Part 4: ERISA Preemption And The Made Whole Doctrine (PDF)
A look at ERISA preemption and the Made Whole Doctrine. NASP Subrogator, Spring/Summer 2003
Health Insurance And ERISA Subrogation – Part 3: ERISA Subrogation Rights (PDF)
A look at how Plan language determines your subrogation rights. NASP Subrogator, Spring/Summer 2002
Health Insurance And ERISA Subrogation – Part 2: What Is An ERISA Plan (PDF)
Defining what is an ERISA Plan. NASP Subrogator, Winter 2002
Health Insurance And ERISA Subrogation – Part 1: History And Scope Of ERISA (PDF)
A look a the history and scope of ERISA. NASP Subrogator, Fall 2001, Issue III, Volume II
The Erosion Of ERISA Subrogation Rights (PDF)
Observations regarding the erosion of ERISA preemption and the impact of the Common Fund and Made Whole Doctrines. NASP Subrogator, Summer 2001, Issue I, Volume II
Medical Record Privacy, HIPAA And Its Effect On Subrogation (PDF)
Understanding and clarifying the confusion surrounding HIPAA and its effect on subrogation professionals. NASP Subrogator, Spring 2001 Issue I, Volume II
Workers' Compensation Subrogation
OCIPS, CCIPS and Wrap-Up Insurance: The Lesser-Known Subrogation Obstacles
Workers’ compensation subrogation has another growing adversary—one that can slip in during the cover of night, gutting subrogation, and reimbursement rights, even after an insurance company or third-party administrator has spent thousands of dollars in recovery efforts. It is known as an OCIP, CCIP, or CIP, acronyms which spell trouble for workers’ compensation carriers which zealously pursue recovery opportunities on behalf of their insureds. Authored by Gary L. Wickert, published in Claims Journal, November 3, 2020.
Subrogating Employees’ Intentional Act Damage Recoveries
Effective workers’ compensation subrogation requires a complete knowledge of all aspects of workers’ compensation law, and an aggressive recovery program must necessarily involve a carrier holding out its hand for reimbursement from an employer whose intentional acts caused the work-related injury. Knowing when and under what circumstances this can be done is an obvious necessity of successful subrogation. By Gary L. Wickert, published in ClaimsPages on September 1, 2020 and Claims Journal on September 2, 2020.
When Employees Work From Home: Work Comp Subrogation and the Remote Employee
When employees work remotely from home or other locations, the normal rules of course and scope can become complicated and confusing. The same is true of subrogation potential. In the wake of the COVID-19 global pandemic, employees globe are being told to work from home or given that option. Workers comp subrogation professionals should be aware of the legal nuances that arise when employees work remotely. Written by Gary L. Wickert, published in Claims Pages on March 24, 2020 and Claims Journal on April 8, 2020.
Even Monkeys Cannot Explain Why Companies Insist On Workers’ Compensation Waivers Of Subrogation Endorsements
This article discusses the confusion around the purpose of a workers’ compensation subrogation waiver endorsement and it links to our new 50-state chart on Effect of Workers’ Compensation Subrogation Waiver Endorsement. Written by Gary L. Wickert, published on Claimspages.com on August 30, 2019; Claims Journal on October 3, 2019; Tennessee Insuror Magazine, September/October 2019 Issue, Volume 30, Number 5.
Fraud Alleged After Carrier Included Case Management Fees in Subrogation Lien: Viewpoint
Carrier And Subrogation Attorney Sued For Fraud For Including Case Management Fees In Subrogation Lien. Workers’ comp carriers expend considerable dollars for case management costs, medical bill audit fees, rehabilitation benefits, nurse case worker fees, significant attorney’s fees on permanency awards, and other expenses in conjunction with the handling and adjusting of workers’ comp claims. What benefits are recoverable in workers’ comp subrogation? Another question is whether and to what extent a workers’ comp carrier can recover fees paid to a contracted provider of catastrophic and complex case management in a workers’ comp claim. Written by Gary L. Wickert, published in Claimspages.com on July 16, 2019 and Claims Journal on July 22, 2019.
Opioid Pain Treatment Addiction Costs Workers’ Comp Carriers, Health Insurers Billions
Insurers Seek Reimbursement for the High Cost of Opioid Addictions. The crisis has led directly to increased workers’ compensation costs. Workers’ compensation carriers and governmental agencies on whose shoulders these huge additional payments have fallen want their money back – and they are taking action to make that happen. Written by Gary L. Wickert, published in Claims Journal on December 7, 2017.
THE RISK OF WAIVING: Understanding The Impact Of Subrogation Waivers On Workers’ Compensation Policies
Waivers of subrogation and their role in the economics of business and insurance remain one of life’s more costly imponderables. Waivers of subrogation are a necessary evil of underwriting, but its application and effect on subrogation and the best interests of the insured are rarely understood or appreciated. Written by Gary L. Wickert, published as lead article in CLM’s Workers’ Compensation Magazine on January 11, 2017.
¿Dónde Están Mis Beneficios? Workers’ Compensation Claims By Undocumented Employees
Employers of illegal immigrants and insurance companies who provide them with workers’ compensation insurance should understand the extent of the legal rights afforded to such workers and the subrogation rights they are left with once a claim is made. This article provides insight and links to our chart on this topic. Written by Gary L. Wickert, published by Workers’ Compensation Institute on January 10, 2017 and Claims Journal on February 2, 2017.
Waivers Of Subrogation Endorsements Are Like Onions
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. Written by Gary L. Wickert, published in Claims Journal on January 5, 2017.
The Exceptions to the Rule: Understanding The Dual Capacity Doctrine
The Exclusive Remedy Rule is neither exclusive nor a remedy. 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. Written by Gary L. Wickert, published in Claims Journal on November 3, 2016.
Understanding The Effects of Experience Modifiers
The concept of experience ratings shouldn’t be a mystery. Experience ratings reward insureds with a favorable loss history and penalize insureds that don’t. So, how does subrogation fit into this? In theory, subrogation recoveries serve as a debit to actual loss totals and actual 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. Written by Gary L. Wickert, published in CLM Workers’ Compensation Magazine, October/November 2016 Issue.
The Best And Worst States For Subrogating Workers’ Compensation Claims
Discusses the best and worst states for subrogation workers’ compensation claims. Written by Gary Wickert, published in CLM’s Workers’ Compensation Magazine, February/March 2016 Issue 1, Vol. 2.
The Fight To Reclaim Premium Increases From Tortfeasors
In situations where an employee’s on-the-job injury or death results from the negligence or fault of a third-party tortfeasor, many employers are fighting back by bringing claims against those at fault for the resulting increases in their experience modifiers and workers’ compensation premiums. Let’s look at why courts are turning back employers that try to toe the line and keep expenses in check. Written by Gary Wickert, published in CLM’s Workers’ Compensation Magazine, April/May 2016, Issue 2, Vol. 2.
Governor Bullock Sides with Trial Lawyers Over Small Businesses
On April 20, 2015, the Legislature passed Senate Bill 288, making it easier for Montana’s employers to recoup medical expenses they or their workers’ comp carrier expend on behalf of an injured employee when that employee recovered a large amount of money in a tort lawsuit. Known as “subrogation”, this right of reimbursement exists and works effectively in every state but Georgia and plays a key role in helping hold down one of the largest expenses for small businesses – workers’ comp insurance premiums. On April 29, 2015, Governor Bullock vetoed the business-friendly Bill. Written by Gary Wickert, published in NASP Subrogator, Fall 2015.
Arizona Legislature Adds Assignment Language To Workers’ Compensation Statute (Again)
Earlier this year, the Arizona Court of Appeals essentially rewrote § 23-1023, Arizona’s workers’ compensation subrogation statute. It was unclear why the Legislature retained phrases that speak to what happens in the second year if the employee did not file suit in the first year. The Court of Appeals referred to these changes as “a drafting oversight.” In a rare example of legislative lucidity, on April 15, 2014, the Arizona Legislature passed H.B. 2094, which amended § 23-1023. The amended language once again makes clear that if an employee does not file a third-party action within the first year after a work-related injury that right is assigned to the workers’ compensation carrier. Written by Gary L. Wickert, published in NASP Subrogator, Fall 2014.
Confusion Surrounds Arizona Court of Appeals’ Opinion On Workers’ Compensation Statute Amendment
The Arizona Court of Appeals has reinvented the English language by making it possible to reassign something that wasn’t assigned in the first place. In Acosta v. Kiewit-Sundt, 2014 WL 250933 (Ariz. App. 2014), the Court essentially rewrote § 23-1023, Arizona’s workers’ compensation subrogation statute. Although it defies logic that a claim clearly subject to “reassignment” wouldn’t have to be assigned in the first place, it remains to be seen whether the Arizona Supreme Court fixes the court’s error. This is the strange story of a statute that unequivocally says that a third-party action may be “reassigned in its entirety to the employee” and then further goes on to describe what happens as a result of this “reassignment” but, according to the Court of Appeals, doesn’t provide for an assignment in the first place. Until the Acosta decision is reversed or overruled, we are all left to scratch our collective heads. Written by Gary L. Wickert, published in NASP Subrogator, Spring/Summer 2014.
Subrogation And The “Oklahoma Option”
On May 6, 2013, Oklahoma Governor Mary Fallin signed S.B 1062 into law. With the new law, Oklahoma joins Texas as the only states that allow employers to opt out of the workers’ compensation system, creating what is known as the “Oklahoma Option.” The law still requires employers to provide workers’ compensation coverage and benefits, but now they have two options which are outside the new “administrative” system. Written by Gary L. Wickert, published in NASP Subrogator, Winter 2014.
Tennessee Supreme Court Doubles Down On Questionable Future Credit Decisions
For four decades, a workers’ compensation carrier’s right to a future credit in Tennessee has been chipped away at and limited in its scope. On January 16, 2013, the Tennessee Supreme Court was given a chance to correct its own mistakes and right wrongs which have complicated workers’ compensation subrogation in Tennessee for decades. It chose to double down on a series of questionable decisions, continuing a long line of judicial legislating which has harmed future credits in that state. Claims Journal, March 7, 2013
The SMART Act Becomes Law: Sanity Restored To Medicare Secondary Payer Liability
The SMART Act improves the efficiency of the Medicare Secondary Payer system and process, by requiring the Centers for Medicare and Medicaid Services to streamline its process, eliminating the uncertainty and costly delays in settling claims and providing funds to the beneficiaries sooner. President Obama signed the bill into law on January 10, 2013. This article discusses the SMART Act and how it will affect subrogating workers’ compensation claims. Claims Journal, February 7, 2013
Workers’ Comp Subrogation Against Political Subdivisions Given Last Rites in Pennsylvania
A recent Pennsylvania Supreme Court case ended a see-saw legal battle over whether a workers’ compensation carrier has any rights of subrogation or reimbursement when the injured employee makes a third-party recovery. It didn’t end well for subrogation. Claims Journal, November 1, 2012
The Battle For Attorney’s Fees: Reducing Plaintiff’s Attorney’s Fees Deducted From Your Lien (PDF)
A look at the law in several states wherein the carrier has a right to argue that the plaintiff’s attorney is not entitled to a large attorney’s fee out of the lien recovery. Self-Funding Magazine.Com, October 25, 2010
Something Old, Something New, Someone Borrowed, Someone To Sue: Workers’ Compensation Subrogation And Employee Leasing Companies
Discusses workers’ compensation subrogation and the Borrowed Servant Doctrine. Written by Gary L. Wickert, published in NASP Subrogator, Winter 2008.
Sleeping With The Enemy: Federal Statute Creates Opportunity For Subrogation Stipulation In Workers’ Compensation Files (PDF)
This article takes a closer look at federal statutes that create an opportunity for subrogation stipulation in workers’ compensation files and the importance of knowing the law of damages in your jurisdiction. NASP Subrogator, Spring/Summer 2008
Workers’ Compensation Subrogation In Construction Settings: In All 50 States (PDF)
Discusses pursuing workers’ compensation subrogation claims in construction settings throughout the country. NASP Subrogator, Winter 2006
Workers’ Compensation Subrogation: Which Payments Can Be Recovered? (PDF)
A multi-state look at the big question which remains unanswered in the statutes of all 50 states – whether medical bill audit fees, case management costs, nurse caseworkers’ fees, and the like, can be recovered as part of a carrier’s workers’ compensation lien. NASP Subrogator, Fall 2006
Sweating The Small Stuff: Arbitrating Workers’ Compensation Subrogation Files (PDF)
Discusses arbitrating workers’ compensation subrogation files. NASP Subrogator, Spring/Summer 2006
Subrogating On The Waterfront: Longshore And Harbor Workers’ Compensation Subrogation (PDF)
An overview of longshore and harbor workers’ compensation subrogation. NASP Subrogator, Spring/Summer 2004
The Negligent Employer: Obstacle Or Advantage In Workers’ Compensation Subrogation? (PDF)
A look at how employer negligence affects workers’ compensation subrogation. NASP Subrogator, Fall 2003
The Many Faces Of Workers’ Compensation (PDF)
A survey of the different workers’ compensation subrogation laws in various states. NASP Subrogator, Spring/Summer 2002
Can Workers’ Comp Carriers Subrogate Against Uninsured And Underinsured Motorists Benefits? (PDF)
Discusses subrogating against benefits paid from a UM/UIM carrier. NASP Subrogator, Spring/Summer 2000, Premier Issue
Apportioning Attorney’s Fees In Workers’ Compensation Third Party Actions: The Need For Legislative Reform (PDF)
This is one of the first articles ever published on Texas workers’ compensation subrogation. The Houston Lawyer, Vol. 27, No. 5, March-April 1990 and Texas Bar Journal, Vol. 53, No. 8, September 1990
Understanding The Use Of Experts In Florida Subrogation Cases
Florida is a property subrogation mecca and understanding how to effectively document, inspect, and preserve subrogation potential in the Sunshine State is indispensable knowledge for any recovery professional. Authored by Lee R. Wickert, published on Claimspages on October 29, 2020.
OCIPs, CCIPs, and Wrap-Up Insurance: The Lesser-Known Subrogation Obstacles
Very few states have established case decisions or statutory law dealing with the effect of OCIPs and the like on subrogation and/or the right of an injured worker to proceed against a third-party in a construction setting. Subrogation professionals should be on the lookout for OCIPs and similar programs in any large construction setting losses. Finding out early that an OCIP may affect the ability of both the injured worker and the subrogated carrier from proceeding with subrogation can save a carrier both time and money – both of which are key components to any successful subrogation program. Authored by Gary Wickert, published in the Sentinel Reporter, July/August Special 2020 Edition.
General Contractor Overhead And Profit And AOB Insurance Scams
Following a storm, canvassers hired by the “hail cartel”—lawyers or opportunistic general contractors—can be found blanketing a neighborhood and knocking on doors. They locate and fabricate damages which either did not exist or were pre-existing and ask the homeowner to sign an Assignment of Benefits (AOB) and promise them a new roof at no cost and with no hassle on their part. Claim solicitation efforts such as these have ensnared innocent homeowners in unnecessary lawsuits by promising big payouts at no cost. Insurers, insureds, lawyers, and legitimate, licensed vendors should be joining forces to thwart this subversive attack on the most basic types of claims in our industry. Authored by Gary L. Wickert, published by Claims Journal on October 6, 2020 and Claims Pages on October 5, 2020.
Don’t Overlook Loss of Use: Understanding State-By-State Nuances In This Little-Researched Area Will Give You The Advantage
Far too often, subrogated auto insurance carriers fail to submit loss-of-use claims or simply waive loss-of-use damages for marginal value while negotiating a third-party auto-property settlement. No matter how much the claim is for, these damages should not be ignored. By Ashton T. Kirsch, published in Claims Litigation Management‘s magazine, August 2020 issue and Claimspages.com on August 14, 2020.
The Failed No-Fault Automobile Insurance Experiment
Repairing Vehicles Before Damages Can Be Inspected: Good Claims Practice or Spoliation?
Good first-party claims practice requires prompt repair of damaged vehicles. Recently, however, some have argued that fast-tracking the repair of vehicles puts third-party liability carriers against whom subrogation is sought at a distinct disadvantage, because they are deprived of the ability to observe and verify the nature and extent of physical property damage they are being asked to pay for. By Gary L. Wickert, published by ClaimsPages.com, August 4, 2020.
Subrogating Rental Car Company Physical Damage and Loss-of-Use Claims
This article addresses the right of a car rental company or other lessor of vehicles to recover physical damages and loss of use damages directly from the renter—which would be considered a contractual claim governed heavily by the terms of the rental agreement and applicable state law—and recovery from third-party tortfeasors, negligent drivers, or other actors who cause damage to a rental car. Written by Gary L. Wickert, published in Claims Journal on May 13, 2020.
Massachusetts Weighs In On Third-Party Liability For Diminished Value Damages
Massachusetts federal district court has ruled that tort law does not provide for recovery of “inherent diminution in value” damages by a third-party claimant. The decision is being appealed but appears to clearly place Massachusetts in the group of states that don’t allow for recovery of such damages from a third-party tortfeasor. Written by Gary L. Wickert, published in Claims Journal on March 16, 2020.
Pennsylvania Finally Picks A Side On Landlord/Tenant Implied Co-Insured Issue
The ability of a landlord’s property insurer to subrogate against a tenant for property damage caused by the negligence of the tenant depends on which state the loss occurs in and the nature and language of the lease involved. Until recently, Pennsylvania had only one case speaking to this issue. Written by Gary L. Wickert, published on ClaimsPages.com on December 3, 2019.
The General Contractor Problem: Paying Overhead And Profit In First-Party Claims
This article provides an overview of available state law and precedent regarding inclusion, quantification, and potential depreciation of General Contractor Overhead and Profit in ACV calculations in first-party claims, as well as a link to a 50-state chart on the topic. Written by Gary L. Wickert, published in Claims Pages on October 7, 2019 and Claims Journal on October 31, 2019.
Washington Supreme Court Throws Automobile Subrogation Into Chaos
In Daniels, the Washington Supreme Court addressed whether the Made Whole Doctrine applies to property subrogation. Specifically, it addressed whether a first-party auto insurer, upon obtaining a partial recovery in a subrogation action, must reimburse its fault-free insureds for their full deductibles before any portion of the subrogation proceeds can be allocated to the insurer. Written by Gary L. Wickert, published in Claims Pages on September 3, 2019.
Amazon.com And The Liability Shield
Amazon.com is the world’s largest online retail marketplace. In the subrogation world, it’s known, in states that allow strict liability claims against entities in the supply chain, Amazon attempts to preclude any liability by arguing that it is not a “seller” of a product in question. Instead, Amazon has successfully argued that it only provides a platform for a buyer and seller to connect for the purchase of a product; therefore, it should not be subject to strict products liability. However, in two recent decisions, this argument has failed. Written by Aaron D. Plamann, published in Claims Pages on August 1, 2019.
New Jersey’s Dangerous Entire Controversy Doctrine
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. Written by Gary L. Wickert, published in Claims Pages October 1, 2019.
Auto Insurer Argues Drunk Driving Accidents Not Covered Under Liability Policy: 5th Circuit Disagrees
There is a new 5th Circuit opinion concluding that drunk driving collisions are “accidents,” as a matter of common parlance and proper policy interpretation. Written by Gary L. Wickert, published in ClaimsPages.com on July 11, 2019.
The Red Light Traffic Camera Controversy
There is an ongoing national debate over the growing practice of law enforcement using red light traffic cameras. While most of the red light traffic camera controversy focuses on their use as an aid to law enforcement, their use is invaluable when it comes to litigation involving intersection collisions. Written by Gary L. Wickert and Lee R. Wickert, published by ClaimsPages on June 21, 2019.
Sidewalk Defects And Municipal Liability: In Most States, Size Matters
Insurance claim files are overflowing with losses involving individuals injured when they trip and fall over cracked, broken, or uneven municipal sidewalks. Understanding the potential liability of the municipality and how and when a subrogated insurance company can subrogate against it when such injuries occur is essential to any successful subrogation program. Written by Gary L. Wickert, published on claimspages.com on May 31, 2019 and in Claims Journal on June 19, 2019.
New Jersey Court Prohibits Lawyer From Asking Client At Trial If Vehicle Totaled
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 an MWL chart and a Claims Journal column entitled “When is a Vehicle Considered a Total Loss.” Written by Gary L. Wickert, published in Claims Journal, May 17, 2019.
How to Get Paid for Being Use-Less: Understanding Loss of Use Claims
When a negligent driver causes damage to another vehicle in an accident, most states allow the owner of the damaged vehicle to recover damages in tort for the reasonable cost of repairing or replacing the vehicle along with the monetary value of being without the vehicle for a reasonable period while the vehicle is being repaired or replaced. States differ on the ability to recover for this “loss of use” damage and the amount that can be recovered. This article will help you understand the ramifications and parameters of loss of use claims in all 50 states. Written by Gary L. Wickert and Ashton T. Kirsch, Claims Pages, January 31, 2019 and Claims Journal, February 7, 2019.
‘Matching Regulations’ Affecting Homeowners’ Insurance Claims: Viewpoint
Matching regulations affecting homeowners’ insurance claims remains one of the most difficult issues to deal with in the world of property insurance. When damage caused by fire, smoke, water, hail, or other causes results in a small portion of a home or building being damaged (e.g.,shingles, siding, carpet, cabinets, etc.), whether and when a carrier must replace non-damaged portions of a building in order for there to be a perfect match remains a point of contention. Written by Gary L. Wickert, Claims Journal, April 4, 2019 and Claims Pages on February 28, 2019.
Who Let The Dogs Out? Subrogating Dog Bite Cases
When subrogating dog bite cases, the subrogation professional must be familiar with the various dog bite laws found in each state and be able to apply that law to the facts in first-party dog bite claims with potential subrogation. Written by Gary L. Wickert, Claims Journal, January 3, 2019.
Understanding Pedestrian and Crosswalk Laws in All 50 States
This article, along with its accompanying 50-state chart entitled Pedestrian and Crosswalk Laws In All 50 States, covers the laws that regulate the relationship between and the duties of motor vehicles and pedestrians crossing the street for all 50 states. By Gary L. Wickert, Claims Journal, November 1, 2018 and Claims Pages, November 2, 2018.
Subrogating the Deer in the Headlights
There are over 1.5 million deer-related vehicle accidents every year, resulting in an average 10,000 serious injuries, 200 fatalities, and over $1 billion in property damage. Subrogating the vehicle which swerved to avoid the deer is often an after-thought, if a thought at all. However, aggressive subrogation professionals should remember that prudent drivers who react appropriately when confronted with a deer in the headlights can usually avoid the devastation and carnage that results from acting inappropriately. Written by Gary L. Wickert, published in Claims Journal October 4, 2018.
Why Molten Lava and Insurance Don’t Mix: Subrogating Pele and the Goddess of Fire
Subrogating volcanos and the damage they cause is difficult at best, mainly because there is no such thing as volcano or lava flow insurance. However, it is possible for an all-risk homeowner’s policy to provide some coverage. Some homeowners argue they should be able to recover under the “fire peril” coverage of their policies because the fire which ultimately destroys the home is a wildfire which, at some point in its development, was started by burning lava. Written by Gary L. Wickert, published in Claims Journal on August 2, 2018.
NFPA 921 for Dummies: How to Play the Fire Cause and Origin Game and Win
NFPA 921 for Dummies: The decision you make regarding experts is the most significant decision you will make in the case, and one you and your subrogation counsel will have to live with. The wrong expert can destroy a good subrogation file, while the right expert can breathe life into a bad one. Written by Gary L. Wickert, published in Claims Journal on July 5, 2018.
Slower Traffic Keep Right: A Summary of State ‘Keep Right’ Traffic Laws
State ‘Keep Right’ Traffic Laws. If a driver is hanging in the left lane on a four-lane highway and isn’t passing someone or making a left turn, is he or she breaking the law? A growing number of U.S. states are passing traffic laws that regulate driving in the left lane. This article discusses this topic and links to a 50-state chart on the subject found on our website. Written by Gary L. Wickert, published in Claims Journal on June 7, 2018.
Texting While Driving On The Rise Despite More Laws Banning It
Use of cell phones and texting while driving increased dramatically across the entire country in the past year, despite fourteen new states passing strong laws banning such behavior. The ramifications for insurance claims and litigation are astronomical. Written by Gary L. Wickert, published in Claims Journal on May 3, 2018.
Uber, Lyft and New York Loss Transfer
Uber, Lyft and New York Loss Transfer – Ridesharing has arrived in New York and confusion over New York no-fault insurance and PIP Loss Transfer has arrived too. Learn about the laws and coverage requirements in New York for Transportation Network Companies, such as Uber and Lyft. Written by Gary L. Wickert, published by Claims Journal on March 6, 2018 and Insurance Journal on March 13, 2018.
Owner Liability For Damage Caused By Stolen Vehicles
Claims and subrogation professionals must know the law involving owner liability resulting from damage caused by stolen vehicles if they are to competently handle claims and seek recovery from the third party responsible for the loss. This article also contains a link to our 50-state chart on this topic. Written by Gary L. Wickert, published in the Claims Journal on February 8, 2018.
Subrogating Against Suicide
Suicide by automobile is on the rise. States have begun approaching the issue of liability coverage in the case of vehicular suicide in a variety of ways, and it is worth understanding how the jurisdiction you are subrogating in handles such issues before you give up on significant subrogation dollars. Know the law before you raise the white flag and accept a denial of coverage without a fight. Written by Gary Wickert, published in the Claims Journal on November 2, 2017.
Use of Aftermarket (Non-OEM) Crash Parts in Repair of Damaged Vehicles
According to an AAI 1999 study, if you built a $25,000 vehicle using only Original Equipment Manufacturer (OEM) parts, it would cost 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. 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. Authored by Gary L. Wickert and Jacob Coz, published in Claims Journal on October 5, 2017.
Seat Belt Defense In All 50 States
Subrogation professionals must become familiar with an increasingly used defense in the litigation of auto insurance subrogation cases. The very fact that you are familiar with the seat belt defense, its applicability in a particular jurisdiction, and some rather cutting-edge arguments with which to diffuse it, will go a long way in bolstering your negotiating strength and your overall subrogation recovery. Written by Gary Wickert and Jacob Coz, published in Claims Journal on September 7, 2017.
Must Hurricane Harvey Victims File Insurance Claims Before September 1?
As if the tragedy and destruction caused by Hurricane Harvey in the Houston and Gulf Coast region wasn’t bad enough, a few opportunistic trial lawyers and public adjusters have taken to social media urging Houston homeowners to file their insurance claims by September 1 in order to avoid the “consequences” of a newly passed Texas law referred to as the “Hailstorm Bill.” The answer is no. Written by Gary L. Wickert, published in Claims Journal on August 29, 2017.
Imputed Contributory Negligence: Maximizing Auto Property Subrogation When Permissive User Driving
When your insured (vehicle owner) entrusts their vehicle to a permissive user who is then involved in an accident which results in damages to the owner’s vehicle, the question arises as to whether the fault of the permissive user should be “imputed” to the insured and, therefore, reduce the amount of which the insured’s carrier can recover in subrogation. After all, the owner didn’t cause the damage to his vehicle. The answer might surprise you, and certainly will confuse you. But, it absolutely can be put into practice to increase your auto property subrogation recoveries. By Gary L. Wickert, published in Claims Journal on June 1, 2017.
How To Sue Yourself And Win
They say that life imitates art. Or, if you prefer Woody Allen’s slant on it, “Life doesn’t imitate art, it imitates bad television.” Both statements appear to be true in light of the recent Utah Supreme Court decision in Barbara Bagley v. Barbara Bagley, 2016 WL 6299507 (Utah 2016). Barbara Bagley, the wife of an accident victim, was allowed to sue herself for negligently causing the death of her husband and simultaneously win and lose. Written by Gary L. Wickert, published by Claims Journal on April 6, 2017.
Liberty v. Tyranny: More States Pass Laws Outlawing Cell Phone Use While Driving
Without regard to where it may rank on the list of most distracting and dangerous activities drivers engage in, nobody can argue that operating a cell phone, sending or receiving texts, or manipulating hand-held devices while driving are high on the list. This article discusses this topic and provides a link to a new chart on the current law across all 50 states governing the use of cell phones, texting, and/or the manipulation of hand-held electronic devices while driving. Written by Gary L. Wickert, published by Claims Journal on March 2, 2017.
Subrogation Magic: Creating Something Out Of Nothing
The familiarity with MCS-90 Endorsements could mean the difference between an uncollectable default judgment and complete reimbursement. Dealing with uninsured and underinsured negligent parties can be a daily occurrence for the transportation subrogation professional. This article will introduce you to a tool that can be utilized to maximize recovery potential of your subrogation claims. Article written by Ashton Kirsch, published in Claims Journal on October 11, 2016.
Damage To Property Without Market Value
The amount and dollar value of insurance claims relating to property loss alone dwarf all other lines of insurance. First-party claim payments are governed by applicable policy language. Third-party property damage recovery is governed by applicable state tort damage laws. A link to a chart depicting the law in all 50 states with regard to the award of damages to personal property without a typical market value can be found in the article. Written by Gary L. Wickert, published in Claims Journal on September 28, 2016.
Governmental Immunity And The Code Of Pirates
The development of the immunity standard for local government and political subdivisions has evolved from attempts to create a precise, predictable semantic definition into a flexible, if unpredictable, guideline. This article discusses when and how a tort action against a governmental entity can be pursued, including the pursuit of subrogation claims, which is indispensable for today’s claims professionals. Written by Gary L. Wickert, published in Claims Journal on August 4, 2016.
Following the Money: Subrogating MSC-90 Payments Against An Uninsured Operator
Trucking insurers issuing motor carrier policies containing MCS-90 Endorsements may be overlooking significant subrogation and recovery opportunities. MCS-90 subrogation is a fascinating and under-utilized means of recovery that can significantly increase an insurance carrier’s bottom line. This article outlines the importance of embracing MCS-90 reimbursement in your practice and the essential nature of giving these files attention immediately upon making any payment under an MCS-90 Endorsement. Written by Ashton Kirsch, published in Claims Journal on July 19, 2016.
Subrogating Against God: Recovering Claim Dollars When Natural Disasters Strike
When God sends a hurricane, tornado, flood, or naturally-occurring fire, the resulting losses can be enough to put many insurance companies into receivership. With no third parties or obvious subrogation potential, these mammoth claim payments often disappear permanently. However, rather than throwing in the towel, if a carrier is willing to invest the time and effort necessary to investigate third-party potential in the face of disaster, it is possible to turn tragedy into triumph. Written by Gary L. Wickert, published in Claims Journal on July 7, 2016.
If A Tree Falls In The Forest, Does The Subrogation Department Hear It?
Damage resulting from falling limbs or trees remains one of the most overlooked areas of third-party liability and subrogation. They are also the most poorly investigated. Whether the owner of a tree that has fallen is a private citizen or a municipality, subrogation professionals must be aware of available tort remedies and be prepared to properly and promptly investigate and dispatch the appropriate expert to document the condition of a fallen tree before the critical evidence reaches the chipper. By Gary L. Wickert, published in Claims Journal on June 2, 2015.
The Failure of No-Fault Insurance
No-fault insurance – like free health care and free education – sounds good, but doesn’t work in the real world. Contrary to public perception, no-fault does not reduce litigation costs. Litigation, over property damage (the most common dispute following an accident), and, over whether a claimant has reached a verbal or monetary threshold, continues to plague no-fault states. However, it appears that a movement away from the no-fault system is in full swing. Written by Gary L. Wickert, published in Claims Journal on May 12, 2016.
Driverless Car Litigation: The World of George Jetson Has Arrived
Driverless cars – more appropriately known as “autonomous vehicles” – are here. Mercedes-Benz recently introduced the 2017 E-Class Sedan at the 2016 North American International Auto Show. It boasts features that would be the envy of George Jetson, with autonomous-driving capabilities that let a car go farther on its own before the driver takes over and stays on track on curvier roads. Trial lawyers are licking their chops and subrogation professionals should be right there alongside them. Written by Gary L. Wickert, published in Claims Journal on April 7, 2016.
Subrogating Snowmageddon And Winter Roof Collapses
Winter storms this season have produced all-time record snowfall records in Maryland, Pennsylvania, and parts of New York. We are all familiar with the rise in insurance claims which go hand-in-hand with such weather events, including slip and fall injuries, ice dams, frozen pipes, water losses, etc. The melting of such accumulation also causes water seepage which rots roofs, damages insulation, leaks into attics, ruins gutters, and unleashes havoc to the interior of homes. Unfortunately, such huge snowfalls also bring with them huge property loss claims resulting from the collapse of roofs not able to withstand the weight of snow and ice. Successfully subrogating these roof collapse losses – which are often overlooked as resulting from an “Act of God” – requires both prompt and aggressive subrogation action and functioning slide rule. Written by Gary L. Wickert, published in the Claims Journal on March 3, 2016.
The Parable of the Crippled Mare: Loss-Of-Use Now Recoverable in Texas Total Loss Auto Cases
On January 8, 2016, the Texas Supreme Court in J & D Towing, LLC v. American Alternative Ins. Corp., 2016 WL 91201 (Tex. 2016), changed nearly a century of law and ruled for the first time that the owners of automobiles and other damaged personal property which are a total loss may recover loss-of-use damages. Until this decision, a person whose vehicle was totally destroyed could only recover the market value of the lost vehicle, while a person whose vehicle was repaired could also recover the loss-of-use of the vehicle. Written by Gary L. Wickert, published in Claims Journal on February 4, 2016.
Making Subrogation While The Hay Shines
Every year in North America insurers pay out tens of millions of claim dollars resulting from fires and feed damage caused by the spontaneous combustion and heating of hay mow – a pile of hay stored in or near a barn. Spontaneous combustion is the result of a chemical reaction that occurs when combustible materials combine with oxygen, generating heat which eventually ignites the hay. Subrogation opportunities abound once you realize that the careless storage of hay can result in a catastrophic fire and that the wetter the hay, the more likely it is to start on fire. Written by Gary L. Wickert, published in Claims Journal on January 7, 2016.
Where’s My Deductible?
Most automobile insurance policies require their insured to pay a deductible when a claim is made. If the auto carrier is successful in subrogating a particular loss against a third party and makes a recovery of its claim payments, the issue often comes up as to what portion, if any, of the insured’s deductible must or should be reimbursed to the insured. The law of each state differs with regard to the obligation of the insurer to reimburse its insured the deductible in a particular claim, as well as the amount to be reimbursed. This article provides a survey of laws regarding reimbursement of an insured’s deductible in all 50 states. Written by Gary Wickert, published in Claims Journal, December 3, 2015.
I Sue Dead People: When A Tortfeasor Dies, Your Subrogation Claim Doesn’t Need To Die Too
When a tortfeasor’s negligence causes injury or damage and the tortfeasor dies as a result of the incident, many victims are left wondering if civil justice has somehow eluded them. Whether you’re an injured victim or a subrogated insurance carrier thrust into the unfamiliar territory of probate court, understanding what must be done to recover when the person responsible for causing a loss dies may be the difference between a full recovery and no recovery at all. Written by Gary L. Wickert, published in Claims Journal on October 1, 2015.
Sudden Medical Emergencies While Driving
Trial lawyers and subrogated insurance carriers must become familiar with both the medical guidelines surrounding driving after suffering syncopal episodes and strokes, as well as the basic law of negligence and available defenses available from state-to-state when a driver claims to have sustained a medical episode resulting in loss of control and collision with a building, or worse. Knowing which defenses are available and who has the burden of proof is imperative in order to make informed legal decisions. Written by Gary L. Wickert and Caleb Katz. Published in Claims Journal, September 3, 2015.
Recovery of Sales Tax After Vehicle Total Loss
Insurance companies faced with first-party claims are responsible for paying the actual cash value or market value of an insured’s vehicle so the insured can replace it with a similar vehicle. The insurer may also be responsible for reimbursing an insured for other costs associated with purchasing a new vehicle, such as sales tax, title, and vehicle registration fees. The details of when and whether a state requires first-party and/or third-party claims to compensate a claimant for sales tax paid on a vehicle determined to be totaled or on its replacement vehicle have not been uniformly developed into a body of rules. However, a good starting point for legal research or any discussion on the subject should begin with our new chart “Recovery of Sales Tax After Vehicle Total Loss in All 50 States”, found HERE, which depicts the relevant laws on the subject across all 50 states. Written by Gary Wickert and Lee Wickert, published in Claims Journal, August 6, 2015.
Drone Wars: Airspace and Legal Rights in the Age of Drones
As technology advances, common citizens are increasingly finding themselves with the ability to obtain and fly reasonably-priced unmanned aerial vehicles (UAVs) known as drones. News broadcasts are only now beginning to reflect the growing problems we can anticipate as their use becomes more common, both privately and commercially. The proliferation of these amazing devices brings with it a whole host of legal issues which most assuredly will give rise to civil disputes and litigation. Understanding the laws affecting their use now becomes a prerequisite as opposed to an opportunity for an interesting lunch conversation. Written by Gary L. Wickert, published in Claims Journal, July 2, 2015.
Subrogating Condominium Damage
Imagine opening the door to your condo only to be confronted by several inches of standing water. The first call is to your insurance company, which must then consider not only mitigating, adjusting, and paying the claim, but subrogating against those responsible for the loss. Determining who is liable for such damage can be tricky. Condo associations carry insurance for common areas while condo owners carry coverage for their unit’s interiors, including walls, flooring, and contents. An even bigger obstacle may be overcoming state law and certain declarations intended to bar a unit owner (or their insurer) from suing/subrogating against another unit owner. Knowing the law in this area from state to state becomes critical in evaluating subrogation potential. Written by Gary L. Wickert, published in Claims Journal on June 4, 2014.
A Picture is Worth a Thousand Words: But It Could Cost You Much More
When dealing with photographs taken of other people, prudence requires that we consider the legal rights of the subject and the ethics of publishing the photo without their permission. Written by Gary L. Wickert, Claims Journal, May 7, 2015.
A Primer on Diminution in Value Claims
One of the recurring questions Matthiesen, Wickert & Lehrer, S.C. is called on to answer involves when and under what circumstances the insured suffering automobile property damage, or his or her subrogated automobile insurer, may recover for diminution in value of a damaged automobile. This article is intended to provide a global answer to many of the questions we have been asked on this subject. Written by Gary L. Wickert, Claims Journal, April 2, 2015.
Where’s The Paint? Subrogating Paint Overspray Claims
Over 1,000 vehicles a day are damaged by paint overspray in the U.S., resulting in over one-half of a billion dollars in damage and insurance claims annually. Whether or not an owner who hires an independent contractor to conduct painting operations will be responsible for paint overspray damage caused by the contractor’s negligence will be largely dependent on the state in which you are subrogating. Written by Gary L. Wickert, Claims Journal, March 5, 2015.
Squeezing Blood From The Uninsured Turnip: Suspension of Drivers’ Licenses
One of the subrogation industry’s strongest and most effective collection tools is the potential to have a debtor’s driver’s license suspended when they are involved in an accident while not being properly insured. If you are able to suspend a defendant’s driver’s license and wield the power to reinstate the license, your chances of getting the defendant to enter into an installment agreement to repay your subrogation interest is exponentially increased. MWL has created a new subrogation chart entitled Suspension of Drivers’ Licenses In All 50 States that details the drivers’ license suspension laws, regulations, and procedures for all 50 states. Written by Gary L. Wickert, Claims Journal, February 5, 2015.
Subrogating Court-Ordered Criminal Restitution
An often-ignored area of recovery for insurance companies with a right of subrogation is the possibility of obtaining court-ordered restitution from a criminal defendant as part of their sentencing. Every state handles the subject differently. This article discusses criminal restitution laws in a variety of states and links to a chart that details the restitution laws in all 50 states. Written by Gary L. Wickert, Claims Journal, January 8, 2015.
Indiana Announces Subrogation-Friendly Rule
On October 28, 2014, Indiana for the first time officially announced that whether a subrogation suit could be brought by a landlord’s insurer against a negligent tenant was to be determined on a case-by-case approach based on the reasonable expectations of the parties as reflected in the lease agreement. LBM Realty, LLC v. Mannia, 2014 WL 5461791 (Ind. App. 2014). In determining the expectations of the parties as articulated in the lease, courts should look for evidence indicating which party agreed to bear the risk of loss for a particular type of damage in question. Written by Gary L. Wickert, Claims Journal, December 4, 2014.
The Growing Challenge of Subrogating Globally
Attorney Richard Schuster was a speaker at the 2014 NASP Conference on Pursuing Foreign Manufacturers in Products Cases After The Supreme Court’s Nicastro Case. Just prior to this presentation, Richard was interviewed by NASP for an article entitled The Growing Challenge of Subrogating Globally, which written by Bevrlee J. Lips. NASP Daily News, November 10, 2014.
7,540 Reasons To Include Your Insured’s Deductible In Your Subrogation Claim
Insured motorists are called upon every day to pay their deductibles in order for their carriers to cover the necessary repairs to their vehicles after accidents. Many carriers include their insured’s deductibles in their subrogation demands and lawsuits, obviating the need for their insureds to take any independent action to secure their deductible payments. It makes for good customer relations and marketing to include an insured’s deductible in any subrogation demands or litigation following an accident resulting in property damage to the insured’s vehicle or other property. However, there is a reason to include and recover the deductible on behalf of your insured – you might lose your subrogation rights altogether. Written by Gary L. Wickert, published in Claims Journal, November 6, 2014.
Illinois Legislature Outsmarts Illinois Court Of Appeals
Governor Signs Amendment to § 143.24d Making Arbitration of Small Auto Property Claims Mandatory But Not Binding. In 2013, Illinois enacted 215 I.L.C.S. § 5/143.24d requiring mandatory, binding arbitration of smaller property subrogation cases – claims involving less than $2,500 – between all auto carriers, whether they were members of arbitration or not. On December 18, 2013, the Illinois Court of Appeals held § 143.24d unconstitutional. Last month, the Illinois Legislature got the last laugh with regard to § 143.24d. Carriers must now arbitrate these claims. Written by Gary L. Wickert, published by Claims Journal, October 2, 2014.
Recovery of Allocated Loss Adjustment Expenses In Property Subrogation Cases
Subrogating For More Than Your Insured’s Property Damage. Insurers, focused on profitability and the bottom line, are aggressively pursuing subrogation of property losses whenever possible, recouping both their claim payments and their insureds’ deductibles. But what is only now coming into focus is an effort by our industry to subrogate not only for its claim payments, but also any and all Allocated Loss Adjustment Expenses incurred in and necessitated by the claims handling process. Written by Gary L. Wickert, published in Claims Journal, September 4, 2014.
Big Brother’s Eye in the Sky: Use of Red-Light Cameras in Accident Litigation
Intersection accidents represent a disproportionate share of vehicle crashes and, therefore, a disproportionate share of litigated cases. Credible witnesses are the key to winning cases, but credible witnesses are rare, can be cross-examined, and are often reluctant to cooperate. The growing ubiquitous presence of red-light cameras and traffic surveillance are beginning to serve as rock-solid witnesses in these often tragic incidents. Written by Gary L. Wickert, published in Claims Journal, August 7, 2014.
Funeral Processions and the Right-of-Way
Confusion abounds regarding when and whether a motorist in a funeral procession can run a red light. The likelihood of a serious accident involving personal injury or property damage increases greatly if you have a long string of cars going through a red light in heavy traffic. This article covers the law of all 50 states and it will provide an understanding of how funeral processions affect the legal rights and remedies of motorists and their insurers is clearly a prerequisite to the effective handling and/or subrogation of the thousands of insurance claims that flow from accidents involving funeral processions. Written by Gary Wickert – Published in Claims Journal on July 3, 2014.
Does Automobile Insurance Follow The Car Or The Driver?
This article answers the question of whether automobile insurance follows the car or the driver. The answer is that it depends on many variables, most notably the kind of insurance coverage being referred to. There are coverages that follow the car and coverages that follow the driver. In general, auto insurance follows the car instead of the driver, but the specifics of a claim can differ since insurance laws and coverage vary depending on the policy, coverage, and state being dealt with. Written by Gary Wickert, published in Claims Journal, June 5, 2014.
You Break It, You Buy It: Understanding Anti-Indemnity Statutes
The existence of anti-indemnity statutes can have a dramatic effect on not only a subcontractor’s liability, but also its insurers’ liability and/or subrogation potential. Indemnity clauses, hold harmless language, additional insured requirements, and waiver of subrogation agreements must be understood and addressed by subrogation professionals in order to make informed decisions on the appropriate claims strategy and recovery options available to them. This article will help you understand anti-indemnity statutes. Written by Gary L. Wickert, published in Claims Journal, April 3, 2014.
Punishing Common Courtesy
Who’s At Fault When One Driver Waves To Another Driver That It Is All Clear – And It Isn’t? The answer might make you a little less courteous the next time you are feeling generous. Written by Gary L. Wickert, published by Claims Journal, March 6, 2014.
Slumlord Subrogation: Subrogating Landlord/Tenant Property Losses
The ability to subrogate and negotiate successfully in landlord/tenant situations depends on a subrogation professional’s familiarity with the laws of the particular jurisdiction involved. Understanding when, where, and why subrogation actions by a landlord’s insurer against a tenant are permitted or prohibited is critical to maximizing property subrogation recoveries. This is the focus of this article. Written by Gary L. Wickert, published in Claims Journal, February 6, 2014.
Keeping Subrogation Out Of The Dumpster
A Christmas-day article in one of our local newspapers drives home the important lesson that the first few days after a loss are critical – the first and often only chance anyone may have to identify, retain, document, investigate, and record valuable information on which a future subrogation lawsuit will depend. Things which may seem to have little or no meaning or importance may turn out to be the lynchpin of an entire subrogation action. Written by Aaron D. Plamann, published in Claims Journal, January 28, 2014.
When Is A Vehicle Considered A Total Loss?
When and whether a vehicle involved in a collision is considered “totaled” for first-party insurance purposes is an issue of great angst and confusion for most consumers. We hear horror stories about older, functioning automobiles being “totaled” simply because the frame is bent or other seemingly minor and hidden damage occurs. Even insurance professionals can get turned around navigating the maze of rules and regulations regarding the act of “totaling” a vehicle under a policy. This article will hopefully help take the guess-work out of when a car can be considered “totaled.” Claims Journal, December 5, 2013.
Florida Supreme Court Limits Economic Loss Doctrine to Protect Liability Cases
In what will go down in legal history as one of the clearest and most forthright decisions in recent memory, the Florida Supreme Court has issued an opinion which limits the application of the Economic Loss Doctrine (ELD) to cases involving product liability. Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Companies, Inc., No. SC10-1022 (Fla. 2013). On March 7, 2013, the Florida Supreme Court did something rare. It admitted its mistake and righted its wrong. The application of the ELD is now limited to cases involving products liability. Claims Journal, November 7, 2013.
New Mexico Supreme Court Holds Assignment of Subrogation Interest Ineffective
It’s unthinkable that urban legends 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. In Sunnyland Farms, the Supreme Court held that an assignment of subrogation interest is ineffective because subrogation is equitable. Claims Journal, October 3, 2013.
Understanding Comparative Fault, Contributory Negligence and Joint and Several Liability
MWL has compiled a list of the laws in every state dealing with whether the state is a contributory negligence state (bars recovery with only 1% of fault by the plaintiff) or a comparative negligence state (recovery by plaintiff is reduced or prohibited based on the percentage of fault attributed to the plaintiff), and whether the state is a pure comparative or modified comparative state. Each state has different comparative fault rules and different joint and several liability laws. Understanding each is critical to evaluating and pursuing subrogation cases on a national basis. Claims Journal, September 5, 2013.
Vandalism, Fire Losses And The Doctrine Of “Inferred Intent”
Property subrogation professionals routinely see cases involving fires caused by uninsured minors playing in buildings. Often carriers won’t pursue subrogation cases against uninsured minors for fear of throwing good money after bad. A new decision by the Ohio Court of Appeals is a stark reminder to carriers to look carefully at such cases. Not only is there “easy” – albeit limited – money to be recovered by applying the straightforward parental responsibility laws, but liability coverage through the parent’s homeowner’s policies might be more accessible than previously thought. Read MWL’s article on Vandalism, Fires Losses And The Doctrine of “Inferred Intent” published in the Claims Journal, July 11, 2013.
West Fertilizer Company Explosion In Texas And The Role Of Experts
On April 17, 2013, a fire of as-of-yet-undetermined origin at the West Fertilizer Company in West, Texas ignited as much as 270 tons of ammonium nitrate being stored at the facility. The resulting blast left a 90-foot-wide crater and caused an estimated $125 million in damage. MWL was quickly engaged to hire experts, conduct an investigation, and aggressively subrogate for damages to over 275 nearby homes and businesses. As we gather and prepare experts for the long investigation and litigation to follow, we are reminded of the importance of preserving evidence, avoiding and preventing spoliation, and selecting the appropriate experts whose investigation and opinions must comply with NFPA 921, Guide for Fire and Explosion Investigations. Claim Journal, June 6, 2013
American Family Insurance v. Golke Brothers: NASP To Appear As Amicus Curiae Before Wisconsin Supreme Court In Spoliation Case (PDF)
NASP hopes this case will help delineate what steps subrogation professionals need to do to prevent a “spoliation” argument and to further clarify what the obligation of a defendant is with regard to failing to engage in the inspection. NASP Subrogator, Spring/Summer 2008
The Perfect Storm: The Science Behind Subrogating Catastrophic Flood Losses
Discusses important considerations in subrogating flood losses. NASP Subrogator, Winter 2007
Duplex: Subrogating Landlord/Tenant Property Losses (PDF)
Understanding when, where, and why a landlord’s insurer can subrogate against a tenant. NASP Subrogator, Winter 2007
Subrogation And The Economic Loss Doctrine: A 50 State Survey (PDF)
A discussion on the Economic Loss Doctrine and its impact on subrogation throughout the country. NASP Subrogator, Spring/Summer 2007
Where’s The Luggage? Subrogating For Lost Or Damaged Luggage (PDF)
Subrogating professionals need to be familiar with what can and cannot be recovered when an airline destroys or loses valuable luggage for which an insurance company pays a claim and attempts to subrogate. NASP Subrogator, Winter 2005
Where’s The Paint? Subrogating Paint Overspray Claims (PDF)
A look at why subrogation professionals need to be diligent and aggressive in both building and pursuing subrogation rights in all claims involving paint overspray. NASP Subrogator, Spring/Summer 2005
The Great Mexican Subrogation Shootout (PDF)
A look at a memorable case MWL subrogated in Mexico. NASP Subrogator, Fall 2004
Subrogating Against God II (PDF)
A further look at property subrogation of natural catastrophes such as floods, hurricanes, etc. NASP Subrogator, Winter 2003-2004
Subrogating Against God (PDF)
A look at property subrogation of natural catastrophes such as floods, hurricanes, etc. NASP Subrogator, Fall 2002
Where’s The Beef? (PDF)
A look at subrogation involving car and truck collisions with cattle in the roadway. NASP Subrogator, Spring 2001, Issue I, Volume II
Subrogating Defective Firestone Tires (PDF)
A timely look at the Firestone defective tire litigation. NASP Subrogator, November 2000
Statutes of Repose: A New Defense To Product Liability? (PDF)
A look at defense tactics involving statutes of repose defenses to product liability cases. Trial Lawyers Forum, Volume 28, No. 2, 1994