Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding Using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Percentage of Value: 75%
Damage to vehicle exceeds 75% of retail value prior to the damage. No salvage law in D.C. D.C. Code § 50-1331.01(12)(A).
Automobile and Property: No applicable statute, Administrative Code provision or case law exists.
Diminution of Value
First Party: D.C. courts have allowed for a tort remedy, but they have not addressed the issue when it involves the coverage available under an insurance policy. Other jurisdictions were referenced when they determined that “recovery may be had for both the reasonable cost of repair and the residual diminution in value after repair, provided that the award does not exceed the gross diminution in value.” American Service Center Associates v. Helton, 867 A.2d 235 (D.C. 2005).
Third Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
Funeral Procession Traffic Laws
Section 2218 of the District of Columbia Municipal Regulations requires funeral processions to have a permit and all participating vehicles must be properly identified by operating their headlights. When the lead car of the procession enters an intersection, the remaining vehicles in the procession may follow, but the lead car must stop if a traffic signal requires it to do so. If the procession is lead by an escort officer, it shall have the right-of-way and may proceed through any intersection, even if a stop is otherwise required. D.C. Mun. Regs. tit. 18, § 2218.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Negligence of permissive user cannot be imputed to owner, unless so done by statute. Nash v. Holzbeierlein & Sons, 68 A.2d 403 (D.C. 1949).
Vicarious Liability/Family Purpose Doctrine: No Family Purpose Doctrine.
Driver is statutorily deemed to be an agent of the owner and, therefore, the owner is responsible for the operator’s negligence. The law, however, allows the owner to produce evidence to disprove this. D.C. Code § 50-1301.08.
Sponsor Liability for Minor’s Driving: No Sponsorship Liability Statute.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: Cell phones may only be used if they are used in a hands-free manner. This includes text messaging. Hand-held use is prohibited, unless in emergency situations. D.C. Code Ann. § 50-1731.04
Drivers with a learner’s permit or school bus drivers who are carrying passengers are prohibited from using hand-held or hands-free cell phones, unless in emergency situations. D.C. Code Ann. § 50-1731.05.
Other Prohibitions: No Applicable Laws.
Loss Of Use
Loss of Use: Yes. Loss of use is calculated by the time needed for repairs and is accepted in the absence of any evidence to show the time claimed is unreasonable or unusual. Brooks Transp. Co. v. McCutcheon, 154 F.2d 841, 843 (D.C. Cir. 1946). Vehicle owner’s recovery for loss of use must be limited to a period of time reasonably necessary to repair or replace the car. Gamble v. Smith, 386 A.2d 692 (D.C. App. 1978). Rental value is not the measure of loss of use value, but it may be used as evidence of loss of use and actual rental is not required. Brandon v. Capital Transit Co., 71 A.2d 621 (D.C. 1950). For commercial vehicles, loss of use is allowed during the time reasonable required to obtain a suitable replacement vehicle. Gamble v. Smith, supra.
Lost Profits: No applicable authority exists for recovery of lost revenue/profits as a measure of loss of use. Loss of use during the time reasonably required for repairs is as much a proximate result of defendant’s negligence as is the cost of repairs, but…it cannot in reason be said that loss of use due to the owner’s financial inability to pay for the repairs is a proximate result of such negligence. Brandon v. Capital Transit Co., supra.
Med Pay/PIP Subrogation
Med Pay: No. Med Pay coverage is rare and usually unnecessary because PIP coverage must be offered.
PIP: Yes. D.C. Code Ann. § 31-2411(d). One vehicle must be other than a “passenger motor vehicle”. Reimbursement may be had by agreement or by inter-company arbitration agreement between the two insurers. PIP carrier can also enforce contractual reimbursement clauses in the policy. Hubb v. State Farm Mut. Auto. Ins. Co., 85 A.3d 836 (D.C. 2014). The three (3) year statute of limitations begins after most recent PIP payment. D.C. Code Ann. § 31-2411(a)(2).
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: 18 DCMR § 2418.
Common Law Rule: Under District of Columbia tort law, one who leaves the keys in an unattended and unlocked vehicle parked in a publicly accessible place may be held liable to a third party for injuries caused by a thief who steals the vehicle. Bailey v. J & B Trucking Services, Inc., 590 F. Supp.2d 4 (D.D.C. 2008) (applying District of Columbia law).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax. However, an insured is allowed to recover damages suffered as a result of being without a vehicle for a reasonable amount of time necessary to replace or repair the damaged vehicle. Gamble v. Smith, 386 A.2d 692, 694 (1978). Look at policy language.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Pedestrian and Crosswalk Laws
Pedestrian In Crosswalk: Driver of vehicle must stop to allow pedestrian to cross the roadway within any marked crosswalk; or unmarked crosswalk at an intersection. Pedestrian who has begun crossing on the “WALK” signal shall be given the right-of-way by the driver of any vehicle to continue to the opposite sidewalk or safety island, whichever is nearest. D.C. Code § 50-2201.28.
Pedestrian “Jaywalking”: Between adjacent intersections controlled by traffic control signal devices or by police officers, pedestrians shall not cross the roadway at any place except in a crosswalk. D.C. Municipal Reg. § 18-2304.
Pertinent Case Law: A pedestrian has a duty to act reasonably, even when he or she has the right-of-way while crossing at an unsignalized intersection or while using a crosswalk. Asal v. Mina, 247 A.3d 260, 275 (D.C. App. 2021).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Recovery of physical damage and loss of use are not prohibited or otherwise regulated. Terms of rental agreement control. Collision Damage Waivers not regulated.
Recovery From Third-Party: Loss of use generally allowed but no specific authority to car rental companies. For commercial vehicles, loss of use is allowed during the time reasonable required to obtain a suitable replacement vehicle. Gamble v. Smith, 386 A.2d 692 (D.C. App. 1978).
Rental Car Company’s Liability Insurance Primary or Excess
Summary: The District’s Compulsory/No-Fault Motor Vehicle Insurance Act, requires that the actual owner of a vehicle provide primary liability coverage for any vehicle operated in the District of Columbia. Sharp v. Ward, 2004 WL 1835102 (D.C. Super. 2004); D.C. Stat. § 50-1301.08.
Sudden Medical Emergencies While Driving
Act of God Defense. A force of nature, uncontrolled or uninfluenced by the power of man and is of such character that it could not have been prevented or avoided by foresight or prudence. Examples are tempests, lightning, earthquakes, and a sudden illness or death of a person. Watts v. Smith, 226 A.2d 160 (D.C. 1967); Christensen v. Gammons, 197 A.2d 450 (D.C. 1964).
An unavoidable accident occurs while all persons concerned are exercising ordinary care and could not have been avoided by the exercise of legally requisite care. Watts v. Smith, 226 A.2d 160 (D.C. 1967).
Suspension of Drivers’ Licenses
Administrative Suspension: An owner/operator who knowingly operates an uninsured motor vehicle shall have their license suspended/revoked. D.C. Code § 35-2103(d)(2)(A). While a typical suspension may be ninety (90) days, suspension can be extended, in some cases up to one (1) year, at discretion of the D.C. Traffic Adjudication Appeal Board. 18 D.C.M.R. § 306.1.
Judgment: Whenever a person fails within thirty (30) days to satisfy any judgment, then upon the written request of the judgment creditor the court will notify the Mayor of the judgment. D.C. Code Ann. § 50-1301.41. Department will suspend license, registration and operating privilege of any person against whom such judgment was rendered. D.C. Code Ann. § 50-1301.41.
Contact Information: District of Columbia, Department of Motor Vehicles, Office of the Director, 95 M Street, SW, Washington, DC 20024, (202) 673-6813, http://dmv.dc.gov.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: No information on point.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Claims Against District: The Mayor of D.C. is empowered to settle, in his discretion, claims against D.C. D.C. Code § 2-401 through § 2-416 (1929).
Notice Deadlines: Notice of claim to the Mayor of the D.C. within six (6) months. Must include approximate time, place, cause and circumstances of the injury or damage. Police report is sufficient notice. D.C. Code § 12-309.
Claims/Actions Allowed: Mayor can settle claims and suits in his discretion when:
(1) Arises out of ownership, maintenance, or use of motor vehicle (gross negligence if emergency vehicle); or
(2) Liability for the construction, operation, or maintenance of any public building; or
(3) Liability for a discharge of toxic substances. D.C. Code § 2-412.
District may be liable for negligence in the performance of a proprietary function such as maintenance of a sewer system. D.C. v. Billingsley, 667 A.2d 837 (D.C. 1995).
Comments Exceptions: Sovereign immunity for discretionary acts. No sovereign immunity for ministerial acts. Powell v. District of Columbia, 602 A.2d 1123 (D.C. 1992). The test for discretionary function is whether it poses a threat to the quality and efficiency of government if liability is imposed. Shifrin v. Wilson, 412 F. Supp. 1282 (D. D.C. 1976). Pothole accidents, fallen trees, damage caused by D.C. government, its property or its employees.
Damage Caps: None.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Claims Against District.
The Mayor of the District of Columbia is empowered to settle, in his discretion, claims against D.C. D.C. Code Ann. § 2-401 through § 2-416 (1929).
Notice Deadlines: An action for unliquidated damages to person or property must be made by hand delivery or U.S. mail within six months in writing to the Mayor, stating the time, place, cause, and circumstances of the injury or damage. D.C. Code Ann. § 12-309.
Claims/Actions Allowed: D.C. shall not be immune for a claim resulting from a State employee acting within their scope of employment negligently operates a motor vehicle. D.C. Code Ann. § 2-412.
Pothole accidents, fallen trees, damage caused by D.C. government, its property or its employees.
Comments/Exceptions: A discretionary governmental function of D.C. is immune from suit. The test to determine if an action is discretionary is whether that function poses a threat to the quality and efficiency of government if liability is imposed on the negligent act or omission. Shifrin v. Wilson, 412 F. Supp. 1282 (D.D.C. 1976).
Damage Caps: None.
General Tort Laws/Statutes
Pure Joint and Several Liability. Plaintiff can sue one defendant for the full amount of the damages, but plaintiff can only obtain a single recovery. Leiken v. Wilson, 445 A.2d 993, 999 (D.C. 1982).
D.C. Court of Appeals has yet to decide whether a settling defendant has a right to contribution. Paul v. Bier, 758 A.2d 40, 46 (D.C. 2000).
Contributory Negligence/Comparative Fault
Pure Contributory Negligence: Damaged parties cannot recover any damages if even 1% at fault. Wingfield v. People’s Drug Store, 379 A.2d 685 (D.C. 1994).
Note: As of 2016, a modified comparative fault 51% bar applies to pedestrians and bicyclists. Motor Vehicle Collision Recovery Act of 2016. D.C. Register Vol. 63, page 12,592, dated Oct 14, 2016. The Act, officially known as D.C. Act 21- 490, or “The Motor Vehicle Collision Recovery Act of 2016,” passed the D.C. Council on October 4, 2016 by a unanimous vote of 13-0. The Act applies to all “non-motorized users” of the road, and in addition to pedestrians and cyclists, applies to skateboards, non-motorized scooters, Segways, tricycles, and “other similar non-powered transportation devices.”
Dog Bite Laws
Application of Contributory Negligence. Victim is barred from recovery if it is found that their conduct is even minimally responsible for the incident. D.C. Code Ann. § 8-1808.
Economic Loss Doctrine
No Rule Adopted, but leaning toward Minority Rule. The District of Columbia has not expressly adopted the ELD.
No applicable statutes.
Statute of Limitations
Personal Property3 YearsD.C. Code § 12-301
Personal Injury3 YearsD.C. Code Ann. § 31-2411(a)(2)
Personal Injury/Wrongful Death1 YearD.C. Code § 12-301
Breach of Contract/Written3 YearsD.C. Code § 12-301
Breach of Contract/Oral3 YearsD.C. Code § 12-301
Breach of Contract/U.C.C./Goods4 YearsD.C. Code § 28:2-725
Statute of Repose/ProductsN/AN/A
Statute of Repose/Real Property10 YearsD.C. Code § 12-310*
Breach of Warranty3 YearsD.C. Code § 12-301**
Workers’ Comp Third Party Case3 YearsD.C. Code § 32-1535
Strict Product Liability3 YearsD.C. Code § 12-301
Statute of Limitations Exceptions
*10 Years from substantial completion of improvement to real property. D.C. Code § 12-310.
**Breach of Contract for Sale is 4 Years. D.C. Code § 28:2-725.
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 3 Years. D.C. Code § 12-301. Wrongful Death: 1 Year. D.C. Code § 12-301.
Subrogation of Medical and Disability Benefits are allowed. Miller v. St. Paul Ins. Co., 203 A.2d 923 (D.C. 1964). Made Whole Doctrine does not apply. D.C. Code Ann. § 31-3551(b) only allows a lien reduction for attorneys’ fees and costs. Previous case law had indicated that an insurer may contract out of MWD with unambiguous language. District No. 1 – Pacific Coast Distributers v. Travelers Cas. & Surety Co., 782 A.2d 269 (D.C. 2001). Common Fund Doctrine applies. D.C. Code Ann. § 31-3551(b). Does not apply where “subrogee files a petition to intervene in the personal injury action and is independently represented by counsel”. D.C. Code Ann. § 31-3551(b)(1).
Admissibility of Expert Testimony
Admissibility Standards: Frye
Case/Statutory Law: Bahura v. S.E.W. Investors, 754 A.2d 928 (D.C. 2000).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: Yes. D.C. Code Ann. § 31-2403.01.
Failure To Disclose A Basis For Bad Faith: No Information.
Comments: An insurer must disclose their limits if a claimant provides a written demand which includes the following information if available: (1) Date of accident, (2) Name and address of alleged tortfeasor, (3) Copy of accident report, (4) Claim number, (5) Claimant’s health bills and loss-wages documentation, and (6) Medical records.
One-Party Consent: An individual may record or disclose the contents of an electronic or oral communication if they are a party to said communication or it they have received prior consent from one of the parties. D.C. Code § 23-542(b)(3).
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 3 years for personal injury. D.C. Code § 12-301. Wrongful death is 1 year. D.C. Code § 12-301. Discovery Rule applies.
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Pure Contributory, except strict liability.
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes.
Heeding Presumption?: Yes.
Innocent Seller Statute: No.
Joint and Several Liability: Yes.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; State of the Art; Government Contractor Defense; Presumption; Sophisticated User.
Restatement 2nd or 3rd?: Both.
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Caselaw: Where a policy was ambiguous, the policy should be read in favor of the insured, thereby requiring matching. National Presbyterian Church, Inc. v. GuideOne Mutual Ins. Co., 82 F. Supp.3d 55 (D.C. Cir. 2015).
Condominium/Co-Op Waiver of Subrogation Laws
Unless condo instruments expressly states otherwise, the association will provide property insurance and liability insurance. However, the insurer waives its rights to subrogation under the policy against the unity owner or any member of his/her household. D.C. Code § 42-1903.10(e)(2).
Damage to Property Without Market Value
Service Value: “UDC does not dispute that replacement cost was an appropriate measure of damages for the destruction of Dr. Vossoughi’s course materials, unpublished research and fabricated instruments. As the evidence showed, this property had great use value to Dr. Vossoughi but no comparable (if any) market value.” Trustees of University of Dist. of Columbia (UDC) v. Vossoughi, 963 A.2d 1162 (D.C. 2009).
Intrinsic Value: “The Court will follow the Restatement and the majority of courts, and apply the rule that in the case of missing family photos, special value to the owner can be recovered, but sentimental value cannot.” Edmonds v. U.S., 563 F. Supp.2d 196 (D. D.C. 2008).
Sentimental Value: “The Court will follow the Restatement and the majority of courts, and apply the rule that in the case of missing family photos, special value to the owner can be recovered, but sentimental value cannot.” Edmonds v. U.S., 563 F. Supp.2d 196 (D. D.C. 2008).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.
The Anti-Subrogation Rule is yet to be determined.
The District of Columbia codified their criminal restitution law in D.C. Code Ann. § 16‐711, which allows a court to award restitution in an amount and manner they see fit, but case law on the topic has not addressed if an insurer will be allowed to recover restitution from a liable criminal defendant. However, D.C. case law has deferred to the applicable federal statute, which states that the “term ‘victim’ means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered.” 18 U.S.C.A. § 3663 (West).
Made Whole Doctrine
The “Made Whole Doctrine” provides that if an insurer pays less than the insured’s total loss, the insurer cannot exercise a right of reimbursement or subrogation until the insured has been compensated for his entire loss. District No. 1 – Pacific Coast Distributors v. Travelers Cas. & Surety Co., 782 A.2d 269 (D.C. 2001). The District of Columbia is sensible in applying the Made Whole Doctrine as a “default rule.” Id. This means that parties to an insurance policy can “contract out of” the Made Whole Doctrine by inserting sufficient language which clearly indicates the intent of the parties to avoid the effect of the Made Whole Doctrine. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Riggs Nat’l Bank of Wash., D.C., 646 A.2d 966 (D.C. 1994).
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: The common law CSR is followed in D.C. The receipt of payment from a collateral source may not be injected into a trial to mitigate damages or in any manner that would mislead, improperly influence, or prejudice the jury. Jacobs v. H.L. Rust Co., 353 A.2d 6, 7 (D.C. 1976); Bushong v. Park, 837 A.2d 49 (D.C. 2003) (citing Restatement (Second) of Torts § 920A).
Recovery Of Medical Expenses Rule:
Private Insurance: A plaintiff with private insurance can recover the unpaid and written-off medical expenses as damages. Hardi v. Mezzanote, 818 A.2d 974 (D.C. 2003).
Related Law/Comments: In suits involving D.C., the CSR will not apply to medical expenses paid by D.C. D.C. v. Jackson, 451 A.2d 861, 871 (D.C. 1982) (Medicaid payments were not a collateral source for purposes of judgment against D.C.).
Employee Leasing Laws
The special employer is entitled to protection under the exclusive remedy provisions of the Workers’ Compensation Act, just as is the actual employer. Thomas v. Hycon, Inc., 244 F. Supp. 151 (D.C. 1965).
Hospital Lien Laws
Statute: DC Code §§ 40-201 – 205. Hospital Liens.
Perfecting Lien: In D.C., no lien shall be effective unless:
(1) Written notice containing name and address of injured person, date of incident, name and location of hospital, and name of person, firm, or corporation alleged to be liable to the injured party, shall be filed in the Office of the Recorder of Deeds of the District of Columbia in a docket provided for such liens, prior to the payment of any moneys to such injured person. § 40-202.
(2) The hospital shall also mail a copy of such notice with a statement of the date of filing to person, firm, or corporation alleged to be liable to the injured party prior to the payment of any moneys to such injured person. The hospital shall also mail a copy of such notice to any insurer which has insured the responsible party, if known. § 40-202.
Comments: The lien does not attach to any workers’ compensation benefits. § 40-201.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: An entity is not able to claim exclusive remedy protection simply because it is part of an OCIP or CCIP. Black v. Kiewit Constr. Co., 1990 U.S. Dist. LEXIS 3951 (D. D.C. 1990).
Statutory Employer Law: District of Columbia Superior Courts are split on how far to extend workers’ compensation liability past the immediate employer, including how to apply the Exclusive Remedy Rule in construction settings. The District of Columbia allows exclusive remedy immunity if a subcontractor fails to secure payment for workers’ compensation and a contractor does secure such payment for an injured employee of a subcontractor.
Comments: In one case, the court found that a general contractor that did not obtain compensation for an injured worker was immune from tort liability when the subcontractor that directly employed the worker did meet its statutory obligation to provide compensation. Estep v. Constr. General, Inc., 546 A.2d 376 (D.C. 1988). Another court found that a general contractor is not an “employer” immune from tort liability in a suit brought by an injured employee and subcontractor where subcontractor had secured payment of workers’ compensation to employee. Meiggs v. Assoc. Builders, Inc., 545 A.2d 631 (D.C. 1988), cert. denied, 109 S. Ct. 3178.
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? Recovery of increased CGL insurance premiums allowed; Undecided as to workers’ compensation premiums.
Statute/Case Law: Williams Enterprises, Inc. v. Sherman R. Smoot Co., 938 F.2d 230 (D.C. Cir. 1991) (general liability insurance premiums).
Rule Summary: In Williams Enterprises, a subcontractor recovered from another subcontractor for increased insurance premiums due to building collapse. This recovery was supported by testimony of insurance broker that collapse caused premiums to increase by $45,000 per year for at least three years. However, no precedent for recovery of increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
No statute, regulation, or case decision on point.
Section 32-1535(e)(3) provides a description of the payments for which the workers’ compensation carrier is entitled to reimbursement:
(e)(1) The employer shall retain an amount equal to:
(A) The expenses incurred by him in respect to such proceedings or compromise (including a reasonable attorney’s fee as determined by the Mayor);
(B) The cost of all benefits actually furnished by him to the employee under § 32-1507;
(C) All amounts paid as compensation; and
(D) The present value of all amounts thereafter payable as compensation, such present value to be computed in accordance with a schedule prepared by the Mayor, and the present value of the cost of all benefits thereafter to be furnished under § 32-1507, to be estimated by the Mayor, and the amounts so computed and estimated to be retained by the employer as a trust fund to pay such compensation and the cost of such benefits as they become due, and to pay any sum finally remaining in excess thereof to the person entitled to compensation or to the representative; and
(2) The employer shall pay any excess to the person entitled to compensation or to the representative, less one fifth of such excess which shall belong to the employer.
Section 32-1507(a) (referenced in statute above) provides that:
(a) The employer shall furnish such medical, surgical, vocational rehabilitation services, including necessary travel expenses and other attendance or treatment, nurse and hospital service, medicine, crutches, false teeth or the repair thereof, eyeglasses or the repair thereof, artificial or any prosthetic appliance for such period as the nature of the injury or the process of recovery may require. The employer shall furnish such additional payment as the Mayor may determine is necessary for the maintenance of an employee undergoing vocational rehabilitation, not to exceed $50 a week.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: D.C. Code Ann. § 32-1535
Waiver Allowed? Nothing in the D.C. Workers’ Compensation Act or applicable case law prohibits the use or efficacy of a waiver of subrogation.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided; however, a waiver of rights against “any customer (and the employees of any customer”) of the employer, signed by the employee, has been held valid and enforceable. Brown v. 1301 K Street, Ltd. Partnership, 2011 WL 5864738 (D.C. App. 2011).
Other Applicable Law: None.
Statute of Limitations: 3 Years. D.C. Code § 32-1535.
Can Carrier Sue Third Party Directly: Yes, 6 months after award.
Right to Intervene: The carrier must intervene if the plaintiff files suit.
Recovery from UM/UIM Benefits: No.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: The formula applies when carrier files suit. Otherwise, the carrier only has equitable lien.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: If employee files third-party suit; costs of litigation and fees shared pro-rata based on amount each received in the total recovery.
Future Credit: Yes, may recover in third-party suit directly if the carrier files suit.
Auto No-Fault: Yes.
Workers’ Compensation Claims by Undocumented Employees
Statute: The term “employee” includes every person, but is silent on “aliens” or “illegally employed.” D.C. Code § 15:32-1501(9).
Case Law: Asylum Co. v. D.C. Dep’t of Empl. Servs., 10 A.3d 619 (D.C. 2010). Marboah v. Ackerman, 877 A.2d 1052 (D.C. Ct. App. 2005).
Comments/Explanation/Other: Asylum Co. held that the claimant was entitled to an award of temporary total disability benefits, and the IRCA did not preclude an order requiring the employer to pay wage-loss benefits. The definition of “employee” encompasses illegal aliens.
*Marboah held that the illegal alien who overstayed his visa, and used a friend’s social security number had committed a fraud, thus making him ineligible for benefits.