Automobile Insurance Subrogation: In All 50 States

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Automobile Insurance Subrogation: In All 50 States is the most thorough, comprehensive, and ambitious anthology of subrogation-related legal information and insurance resources ever put to paper. It is the last and most anticipated of the subrogation trilogy, and a book which will serve as the “bible” for any insurance company writing personal lines or commercial auto policies. It is destined to become the standard work and reference for attorneys, insurance companies, and subrogation industry professionals.

Every year there are more than 7 million auto accidents in the United States with a financial toll of more than $300 billion. Nearly 3 million people are injured and 42,636 people are killed. In the overwhelming majority of these accidents there is at least one party at fault. For virtually every one of these accidents, a policy of automobile insurance provides some sort of claim payments or benefits. In the vast majority of those claims, one or more insurance policies and/or applicable state law grants the insurer a right of subrogation against a negligent third party whose carelessness caused the accident. This book is the bible on subrogating those claims.

This book covers the nuts and bolts of auto subrogation in all 50 states, covering every topic imaginable -- including PIP, Med Pay, UM/UIM, property claims, deductible reimbursement, no-fault subrogation and more. It surveys the laws of every state and provides descriptions of every type of auto coverage imaginable, as well as the statutory, case law, and regulatory authority governing every aspect of auto subrogation. If you have subrogation responsibility involving auto claims, you need this book. It universally covers issues which are indelibly interwoven into the business of auto insurance, including a complete treatment of the laws of all 50 states and the District of Columbia relating to:

• Basic and Statutory Subrogation Rights
• Mandatory vs. Optional Insurance Coverage
• No-Fault Laws, PIP, Mini-Torts, and Loss Transfer Laws
• Tort Limitations
• Medical Payments Coverage and Subrogation
• Uninsured/Underinsured Motorist Coverage and Subrogation
• Collision/Property Subrogation
• Release of Tortfeasor by Insured
• Accord and Satisfaction: Accepting Partial Payments from Tortfeasor
• Made Whole Doctrine
• Common Fund Doctrine
• Economic Loss Doctrine
• Deductible Recovery and Reimbursement
• Collateral Source Rule
• Contributory Negligence/Comparative Fault
• Seat Belt Laws and Defenses
• Rental Cars, Loaner Vehicles, and Test Drivers
• Bailment/Parking Lot Liability
• Negligent Entrustment
• Facing Multiple Claims In Excess of Liability Policy Limits
• Conflict of Laws/Interstate Subrogation
• Recovery of Attorney’s Fees and Costs
• Statutes of Limitations

It is a complete treatment -- A to Z -- of virtually every issue which the insurance claims or subrogation professional will face in the area of automobile insurance. It is like no legal treatise ever written and promises to be the most used reference in any insurance company.

Acknowledgments

About the Author

Disclaimer

Notice

How to Use This Book

Introduction

CHAPTER 1
SUBROGATION GENERALLY

§ 1.01 Elements
§ 1.02 Origins of Subrogation
§ 1.03 Types of Subrogation
[1] Contractual (Conventional) Subrogation
[2] Equitable (Legal) Subrogation
[a] Difference between Subrogation and Assignment
[b] Roles of Equity
[3] Statutory Subrogation
[a] Workers' Compensation
[b] Hospital Liens
[c] Medicare
[d] Medicaid
[e] Interplay between Workers' Compensation and Medicare/Medicaid
[f] Federal Employees Health Benefit Act
[g] Other Statutory Subrogation
§ 1.04 Purposes of Subrogation
§ 1.05 Anti-Subrogation Arguments

CHAPTER 2
AUTOMOBILE INSURANCE

§ 2.01 Generally
§ 2.02 History of Automobile Insurance
[1] Origins
[2] History of the Automobile
[3] Automobile Insurance in America
§ 2.03 Types of Automobile Insurance Coverage
[1] Bodily Injury Liability
[2] Property Damage Liability
[3] Medical Payments Liability
[4] Personal Injury Protection
[5] Uninsured/Underinsured Motorist Coverage
[6] Collision and Comprehensive Coverage
[7] Add-Ons and Riders 
[a] Rental Reimbursement Coverage 
[b] Towing and Labor Coverage 
[c] Gap Auto Insurance Coverage 
[d] Waiver of Depreciation Coverage 
[8] Commercial Automobile Coverage 
[a] Automobile Liability 
[b] Hired and Non-Owned Coverage 
[c] Medical Payments 
[d] Personal Injury Protection 
[e] Uninsured Motorist Coverage 
[f] Underinsured Motorist Coverage
[g] Pollution Exclusion--Upset & Overturn 
[h] Drive Other Vehicle Coverage 
[i] Collision Coverage
[j] Comprehensive Coverage 
[k] Garage Liability Coverage 
[l] Garagekeeper's Liability Coverage 
§ 2.04 No-Fault Insurance Coverage 
[1] Generally 
[2] History 
[3] Personal Injury Protection Benefits 
[4] Thresholds 
[5] Limited Tort 
[6] Loss Transfer Statutes 
[7] No-Fault States 
[a] Modified No-Fault 
[b] Add-On No-Fault 
[c] Voluntary ("Choice") No-Fault 
[8] Effectiveness and Future of No-Fault 

CHAPTER 3
SUBROGATING MEDICAL AND PROPERTY
DAMAGE CLAIMS

§ 3.01 Auto Subrogation and the American Tort System
§ 3.02 Subrogation Suits and Interventions
[1] Filing a Subrogation Lawsuit
[2] Intervention in a Bodily Injury Action
[a] Mandatory Joinder of Subrogated Party 
[b] Is the Subrogated Party a Plaintiff, Defendant or Other?
[c] The Reverse--Must Subrogated Party Join the Insured?
[d] What Do You Do if You Are Not Joined? 
[3] Use of Subrogation Counsel
§ 3.03 Made Whole Doctrine 
[1] Garrity v. Rural Mutual Ins. Co. 
[2] Rimes v. State Farm Mutual Auto Ins. Co.
[3] What Does It Mean to Be Made Whole? 
[a] Basic Test
[b] Contributory Negligence 
[4] Allocation of Damages
[5] Attorney's Fees 
[6] Where Policy Specifically Negates Made Whole Doctrine 
§ 3.04 Common Fund Doctrine 
§ 3.05 Statute of Limitations 
§ 3.06 Uninsured Motorist Subrogation 
[1] Generally 
[2] Collection Law. 
[3] Substituted Payments. 
§ 3.07 Release of Tortfeasor by Insured 
§ 3.08 Waiting for Insured's Bodily Injury Claim to Settle 
[1] Third-Party Carrier Requirement.
[2] Statutory Requirement
§ 3.09 Anti-Subrogation Statutes
§ 3.10 Arbitration 
[1] Generally 
[2] History of Arbitration
[3] Intercompany Arbitration 
[a] Auto Subrogation Arbitration
[b] Personal Injury Protection Arbitration
[c] Medical Payment Subrogation Arbitration
[d] Uninsured Motorists' Subrogation 
[e] Special Arbitration 
[f] Claims Excluded for Arbitration 
[4] Intercompany Arbitration Providers 
[5] Arbitration Services and Outsourcing 
[6] Use of Subrogation Counsel in Arbitration 
§ 3.11 Reimbursement of Insured's Deductible
§ 3.12 Rental Vehicles, Loaner Vehicles, and Test Drivers 
§ 3.13 Bailment 
§ 3.14 Guest Statutes / Family Purpose Doctrine
[1] Guest Statutes 
[2] Family Purpose Doctrine 
[3] Parental-Immunity Doctrine 
§ 3.15 Economic Loss Doctrine 
[1] Definition of "Economic Loss"
[2] Purpose of Economic Loss Doctrine
[3] History of Economic Loss Doctrine
[4] Minority Rule
[5] Majority Rule 
[6] Intermediate Rule 
[7] "Other Property" Exception 
[8] Warranties 
[9] Economic Loss Doctrine in Wisconsin 
[a] Generally 
[b] First Recognized 
[c] "Other Property" Exception
[d] Component Parts
[e] Asbestos Exception 
[f] Privity
[g] Consumer Transactions
[h] Public Policy Exception 
[i] Fraud and Misrepresentation 
[j] Service Contract versus Product 
§ 3.16 Multiple Claims in Excess of Liability Limits 
[1] First Come, First Served Approach 
[2] First to Judgment Approach
[3] Pro Rata Approach 
[4] Good Faith, Bad Faith Approach 
[5] Interpleader 
§ 3.17 Interstate Subrogation and Conflict of Laws
[1] Interstate Subrogation 
[2] Conflict of Laws
§ 3.18 Subrogation and Fair Debt Collection Practices
[1] Federal Fair Debt Collection Practices Act  (FDCPA) 
[2] State Law--Consumer Protection Acts

CHAPTER 4
AUTOMOBILE INSURANCE SUBROGATION
IN ALL 50 STATES

Introduction 

Every conceivable subject or issue dealing with subrogation on a state-by-state basis is covered in the individual state chapters as follows:

[1] Subrogation Rights
[2] Automobile Insurance Coverage
[3] No-Fault Insurance Laws
[4] Medical Payments Subrogation
[5] Personal Injury Protection (PIP) Subrogation
[6] Collision/Property Subrogation
[7] Uninsured/Underinsured Motorist Subrogation
[8] Release of Tortfeasor by Insured
[9] Accepting Partial Payments--Accord and Satisfaction
[10] Made Whole Doctrine
[11] Common Fund Doctrine
[12] Economic Loss Doctrine
[13] Reimbursement of Insured's Deductible
[14] Collateral Source Rule
[15] Contributory Negligence/Comparative Fault
[16] Sudden Emergency Doctrine
[17] Seat Belt Defense
[18] Rental Cars, Loaner Vehicles and Test Drivers
[19] Bailment
[20] Negligent Entrustment
[21] Guest Statute/Family Purpose Doctrine
[22] Dram Shop Liability
[23] Multiple Claims in Excess of Liability Policy Limits
[24] Conflict of Laws
[25] Statutes of Limitations
[26] Recovery of Costs/Attorney's Fees

§ 4.01 Alabama
§ 4.02 Alaska 
§ 4.03 Arizona
§ 4.04 Arkansas 
§ 4.05 California 
§ 4.06 Colorado 
§ 4.07 Connecticut 
§ 4.08 Delaware 
§ 4.09 District of Columbia 
§ 4.10 Florida 
§ 4.11 Georgia
§ 4.12 Hawaii 
§ 4.13 Idaho 
§ 4.14 Illinois 
§ 4.15 Indiana 
§ 4.16 Iowa
§ 4.17 Kansas 
§ 4.18 Kentucky 
§ 4.19 Louisiana 
§ 4.20 Maine 
§ 4.21 Maryland 
§ 4.22 Massachusetts 
§ 4.23 Michigan 
§ 4.24 Minnesota 
§ 4.25 Mississippi 
§ 4.26 Missouri 
§ 4.27 Montana 
§ 4.28 Nebraska 
§ 4.29 Nevada 
§ 4.30 New Hampshire 
§ 4.31 New Jersey 
§ 4.32 New Mexico 
§ 4.33 New York 
§ 4.34 North Carolina
§ 4.35 North Dakota
§ 4.36 Ohio 
§ 4.37 Oklahoma 
§ 4.38 Oregon 
§ 4.39 Pennsylvania 
§ 4.40 Rhode Island 
§ 4.41 South Carolina 
§ 4.42 South Dakota 
§ 4.43 Tennessee 
§ 4.44 Texas 
§ 4.45 Utah 
§ 4.46 Vermont 
§ 4.47 Virginia 
§ 4.48 Washington 
§ 4.49 West Virginia 
§ 4.50 Wisconsin 
§ 4.51 Wyoming 

CHAPTER 5
SUSPENSION OF DRIVER LICENSES

§ 5.01 Generally 
§ 5.02 Driver's License: Privilege or Right
§ 5.03 Suspending Driver Licenses in All 50 States

Table of Cases 

Table of Statutes

Table of Other Authorities

Gary L. Wickert is an insurance trial lawyer and is regarded as one of the world's leading experts on insurance subrogation. He is also the author of several subrogation books and legal treatises and is a national and international speaker and lecturer on subrogation and motivational topics. After 15 years as the youngest managing partner in the history of the 30-lawyer Houston law firm of Hughes, Watters & Askanase, L.L.P., Mr. Wickert returned to his native Wisconsin in 1998 and co-founded the subrogation firm of Matthiesen, Wickert & Lehrer, S.C. He oversees a National Recovery Program which includes a network of nearly 285 contracted subrogation law firms in all 50 states, Mexico, Canada and the United Kingdom and boasts recoveries of more than $500 million in recoveries and credits for more than 200 insurance companies. Licensed in both Texas and Wisconsin, Mr. Wickert is double board-certified in both personal injury law and civil trial law by the Texas Board of Legal Specialization. He is also certified as a Civil Trial Advocate by the National Board of Trial Advocacy, for whom he has both written and graded the product liability questions contained on the NBTA national certification exam taken by trial lawyers around the country. For 25 years, Mr. Wickert has served as an expert witness and insurance consultant on subrogation and insurance related issues and has been consulted by insurance carriers, lawyers, and legislative bodies from several states. He is a licensed arbitrator and has attended more than 750 mediations in more than 30 different states. He has represented subrogated insurance carriers in every state, and has been admitted pro hac vice in 17 states. Gary Wickert has worked with the Texas Legislative Oversight Committee in rewriting their workers' compensation subrogation statutes, has served on the Board of the National Association of Subrogation Professionals, and has been cited as an authority on workers' compensation subrogation by several appellate courts, including the Texas Court of Appeals. He is one of only a few lawyers to have ever represented a subrogated carrier before the United States Supreme Court, and was named as one of Law & Politics magazine's "Super Lawyers" for 2005, 2006, and 2007.

"Med Pay and PIP subrogation, No-Fault laws, uninsured motorist consent and substitution, seat belt defense, negligent entrustment, deductible reimbursement regulations, bailment issues, collateral source and made whole rules, and statutes of limitations. This book has everything a subrogation professional will need and is never out of arm's reach."
-Bradley K. Johnston, RISK MANAGEMENT SERVICES COMPANY, Director of Subrogation, Louisville, Kentucky

"The book is amazing. It universally covers even the most obtuse subrogation issues interwoven into or even remotely connected with the business of auto insurance subrogation. If you insure motor vehicles and want to increase your subrogation recoveries, get this book!"
-Karen Birks-Pace, ERIE INSURANCE GROUP, Subrogation Specialist, Waukesha, Wisconsin

"Automobile Insurance Subrogation In All 50 States is the most ambitious subrogation treatise I've ever seen. Matthiesen, Wickert & Lehrer has done it again!"
-Gary Uhl, SEDGWICK CMS, Operations Manager/Assistant Vice President, Des Moines, Iowa

"This book is the 'bible' on auto subrogation. Any insurance company with an auto line - personal or commercial - needs this book."
-Jacqueline Guffin, MOTORS INSURANCE COMPANY, Subrogation Manager, Atlanta, Georgia

"An indispensible guide to some of the most complicated legal issues plaguing Subrogation today."
-Megan Aloisi, FLEET RESPONSE, Auto Subrogation Supervisor, Cleveland, Ohio

"Automobile Insurance Subrogation In All 50 States is like every subrogation or insurance-related resource I've ever wanted, tediously compiled, organized, and explained, in one convenient place."
-Jon Coscia, Latitude Subrogation Services, Chief Operating Officer, Bloomfield Hills, Michigan