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Workers' compensation subrogation continues to change and adapt, as trial lawyers prod its weak points and capitalize on confusing areas of the law. There have been numerous changes in workers' compensation statutes and case law in many states since the last edition. This edition includes an exhausting survey and detailed explanation of the crazy status of employer contribution in Illinois, which includes a step-by-step exposition of how contractual indemnity and the "Kotecki cap" play a role in expanded employer liability in Illinois workers' compensation subrogation cases. It covers the many nuances of Naig and Reverse-Naig settlements under Minnesota law, including an analysis of who has what burdens of proof and the effect such a settlement has on the remaining third-party case tried to a jury. In light of the landmark Missouri Court of Appeals decision in Robinson v. Hooker, the liability of co-employees in Missouri and surrounding states have been covered in greater detail. The concept of co-employee liability for acts which are intentional or committed outside of the course and scope of employment has been added in several states. New case law and explanations were added to the Texas chapter with regard to subrogating against UM/UIM policies, including arguments with regard to the efficacy of UM/UIM exclusionary policy language and the ability to subrogate against a UM/UIM policy actually issued by the same carrier insuring for workers' compensation coverage. West Virginia completely revised their subrogation statute and created a new statute relating to the "statutory employer" status of primary contractors and subcontractors on construction sites, limiting when and how primary contractors can become legitimate third parties for purposes of subrogation. Chapter 7, "Contractual Limitations to Subrogation" has been completely overhauled to include new statutes and case law for every state to assist practitioners in determining the law applicable when there is an alleged applicable waiver of subrogation which might otherwise destroy subrogation. A new Chapter 12 has been added, which focuses on jurisdiction of workers' compensation third-party actions taking a broad look at 28 U.S.C. § 1441, which prohibits removal of cases "arising under" state workers' compensation laws. A carrier now has the ability to prevent cases from being removed from favorable venues in state court to less favorable federal court venues - an attractive option for plaintiffs' attorneys with whom subrogated carriers can negotiate with for stipulations and concessions on their subrogation interests in exchange for maintaining a case in state court. This edition also expands on which states do and do not hold workers' compensation to be primary. Combined with more than 100 new case decisions, this Fifth Edition is the most complete and up-to-date edition yet.
Workers' Compensation Subrogation is the most complete and thorough treatise covering workers' compensation subrogation ever published. There are very few areas in which the laws of each state vary more and are applied as differently, then in the area of workers' compensation subrogation. This book is intended to introduce the workers' compensation claims handler, in-house counsel, and subrogation professionals to some of the more esoteric and complex subrogation issues encountered in today's workers' compensation insurance subrogation marketplace. It covers the following issues in all 50 states:
• Allocating Third Party Recoveries • Attorney's Fees • Borrowed Servant Doctrine • Conversion of Workers' Compensation Liens • Costs and Expenses • Dual Capacity Doctrine • Equitable Subrogation/Contribution • Exclusivity Rule Barring Action Against Employer • How To Calculate Your Credit/Advance and How It Is Applied In Each State • Intentional Acts • Joint Ventures • Made Whole Doctrine As Applied To Workers' Compensation Subrogation • Necessity of Intervention • Lien Reduction Statutes • Staff Leasing Services and Temporary Employment Agencies • Statutory Subrogation Rights • Subrogating Against UM/UIM Benefits • Subrogating In Medical Malpractice Cases • Subrogating In Legal Malpractice Cases • Waivers of Subrogation • Who Qualifies As A Third Party • Other Workers' Compensation Subrogation-Related Issues
In addition to being an excellent primer on workers' compensation subrogation, suitable for both the new subrogation professional and the seasoned veteran, the book also contains a detailed synopsis of the workers' compensation subrogation laws in each of the 50 states. It is a must for anyone with multi-state subrogation responsibilities. Complete with diagrams, references and thousands of footnotes, this is the most ambitious workers' compensation subrogation project ever undertaken.
The following issues and topics are covered in detail for each of the 50 states:
Statutory Subrogation Rights • Identifies the statutory authority for workers' compensation subrogation in that state. • Discusses the purpose/legislative intent of the statute. • Is an election necessary by the worker? • Who can bring a third party action (plaintiff, carrier, employer, or all of the above)? • When and must a third party action be brought? • What are the rights of a carrier to intervene in an existing third party action filed by a worker? • Will a worker's compensation carrier's subrogation interest be barred if not brought timely?
Third Parties • Who can be sued as third parties in a third party action? • Can a co-employee be sued and under what circumstances? • Can an uninsured/underinsured carrier be a "third party" under the laws of that state? • Is there a dual capacity or borrowed servant doctrine which somehow affects the ability of a worker's compensation carrier to effectively subrogate? • What is the state's workers' compensation bar? • Are there any specific restrictions regarding subrogation against a subcontractor or an employee of a subcontractor in a construction situation? • Under what circumstances can the employer be sued? • Can a carrier subrogate to the benefits of a recovery in a legal or medical malpractice action?
Allocation of Third Party Recovery • How and when does the carrier recover its subrogated interest? • Does the carrier recover past benefits only or also the present value of future benefits which it owes under the Workers' Compensation Act of that state? • Is there a formula used to determine how a third party recovery is allocated? • What happens to the total recovery and how is it applied? • Can a carrier recover benefits paid by a third party or recovered in a third party action which relate to loss of consortium, or non-economic damages such as pain and suffering, mental anguish, or punitive damages? • Does the employer's negligence reduce the recovery by the worker or carrier?
Attorneys' Fees/Costs • Can the plaintiff's attorney recover attorneys' fees and/or costs out of the carrier's subrogated recovery and under what circumstances? • How are attorneys' fees and costs handled if the carrier is also represented by subrogation counsel, intervenes into the third party action and actively represents its interest? • What if the carrier isn't represented? • Can a plaintiff's attorney recover attorneys' fees based on the value of past benefits only or will he be able to recover attorneys' fees based on the future benefits/credit recovered by the carrier? • Must a carrier bear its proportionate share of expenses as many states require, and what does that really mean? Credit/Advance • Can a carrier take a vacation from paying workers' compensation benefits once a worker makes a third party recovery? • How is the credit calculated under state law? • Does the carrier have to do anything special to obtain the credit, such as filing with the Workers' Compensation Commission? • Does the carrier get a credit toward future compensation benefits it owes or does it actually get to collect the present value of the future benefits it owes and still be obligated to pay the scheduled benefits in the future?
Statutes of Limitation • What are the applicable statutes of limitation or statutes of repose that may be applicable to third party subrogation actions?
Related Subrogation Issues • Are there any other issues or statutes which affect a worker's compensation carrier's right of subrogation, such as the made whole doctrine, common fund doctrine, or anti-subrogation statutes? • Are there any lien reduction statutes, such as those existing in Indiana, which affect a worker's compensation carrier's right of recovery? • Does the state have any no-fault laws which complicate workers' compensation subrogation involving an automobile accident, such as exist in Michigan and Colorado? • What are the carrier's options if the worker and his attorney simply refuse to repay a worker's compensation carrier's lien after settling a third party action? • If the worker fails to repay the carrier, is there a cause of action for conversion of a carrier's subrogation interest or may the carrier still proceed against the third party tortfeasor to recover its subrogation interest?
Acknowledgements
About the Author
Notice
How to Use This Book
Introduction
CHAPTER 1 Workers' Compensation Generally
1.1 Elements
1.2 Federal Employment Compensation Act
1.3 Federal Employment Liability Act
1.4 Jones Act
1.5 Longshore and Harbor Workers' Compensation Act
1.6 Black Lung Benefits Act
CHAPTER 2 Statutory Subrogation Rights
2.1 State Statutes Dictate Subrogation Rights
2.2 Who Has Authority to File Third Party Action?
2.3 Joint Right to Pursue Third Party Action
2.4 Notice Requirements
2.5 Separate Time Frames for Filing Suit
2.6 Mandatory Joinder of Subrogated Party
2.7 Disability Benefits Laws
2.8 Summary
CHAPTER 3 Allocating Third Party Recoveries
3.1 Non-Workers' Compensation
3.2 Workers' Compensation
3.3 Protecting the Lien
3.4 Carrier's Right to Recover its Lien
3.5 Carrier's Right to Initiate Participate in Third Party Litigation
3.6 Is an Intervention Necessary to Protect Your Lien?
3.7 Disadvantages of Intervening (Under Texas Law)
3.8 Advantages of Intervening (Under Texas Law)
3.9 Carrier is Generally Subrogated to All Elements of Damage
CHAPTER 4 Understanding Third Party Litigation Issues
4.1 Attorney's Fees
4.2 Apportionment Hearing
4.3 Attorney's Fees Based Upon Future Benefits/Medical Expenses
4.4 Costs and Expenses
4.5 Lien Reduction Statutes
4.6 Lien Priority Statutes
4.7 Made Whole Doctrine
4.8 What Does it Mean to be "Made Whole"?
4.9 Third Party Litigation
4.10 Conversion of Worker's Compensation Liens
4.11 Medicare Secondary Payer Issues
CHAPTER 5 Who are Third Parties?
5.1 Subrogating Against UM/UIM Benefits
5.2 Exclusivity of Workers' Compensation Act Bars Action Against Employer
5.3 Intentional Acts
5.4 Dual Capacity Doctrine
5.5 Former Complying Employers
5.6 Joint Ventures
5.7 Where Injury is Caused by Co-Employee
5.8 Where Third Party Is Also Insured by the Workers' Compensation Carrier (Anti-Subrogation Rule)
5.9 No-Fault Automobile Insurance
5.10 Med Pay and PIP
CHAPTER 6 Borrowed Servant Doctrine
6.1 Defense to Third Party Liability
6.2 Consequences of Employee Being a Borrowed Servant
6.3 Equitable Subrogation Contribution Among Joint Insurers
6.4 Dual Employers
6.5 Staff Leasing Services and Temporary Employment Agencies
CHAPTER 7 Contractual Limitations to Subrogation
7.1 Waiver of Subrogation
7.2 Efforts to Amend Waivers of Subrogation
7.3 Does Insured's Waiver of Subrogation Rights Prevent a Carrier From Recovering Worker's Compensation Lien?
7.4 Prohibition of Subrogation against Insureds
7.5 Subrogation against Additional Insured
7.6 Subrogating against Third Party Indemnified by Insured
7.7 Pre-Loss Waiver
7.8 Post-Loss Waiver
7.9 Elements of Effective Waivers of Subrogation
7.10 Scope of Waiver of Subrogation
7.11 Use of Waiver in Claim Settlement Negotiations
CHAPTER 8 Extra-Territorial Subrogation
8.1 Extra-Territorial Subrogation
8.2 Conflicts of Laws
8.3 The Larson Rule
8.4 Restatement (Second) of Conflict of Laws
8.5 Full Faith and Credit
8.6 Extra-Territorial Reciprocity Agreements
8.7 The "Payable under This Chapter" Issue
CHAPTER 9 Longshore and Harbor Workers' Compensation Subrogation
9.1 Statutory Subrogation Rights
9.2 Third Parties
9.3 Allocation of Third Party Recovery
9.4 Attorney's Fees and Costs
9.5 Statutory Credit
9.6 Releated Issues
9.7 Summary
9.8 Longshore and Harbor Workers Terms and Definitions
CHAPTER 10 Hiring Subrogation Counsel
10.1 Subrogation Clearing House
10.2 Evaluating and Monitoring Local Counsel
10.3 Instant Access to Individual State Subrogation Law
10.4 Centralized Reporting
10.5 Cost Containment
10.6 Dealing with Only One Counsel
CHAPTER 11 Workers' Compensation Subrogation Laws : in All 50 States
11.1 Alabama
11.2 Alaska
11.3 Arizona
11.4 Arkansas
11.5 California
11.6 Colorado
11.7 Connecticut
11.8 Delaware
11.9 District of Columbia
11.10 Florida
11.11 Georgia
11.12 Hawaii
11.13 Idaho
11.14 Illinois
11.15 Indiana
11.16 Iowa
11.17 Kansas
11.18 Kentucky
11.19 Louisiana
11.20 Maine
11.21 Maryland
11.22 Massachusetts
11.23 Michigan
11.24 Minnesota
11.25 Mississippi
11.26 Missouri
11.27 Montana
11.28 Nebraska
11.29 Nevada
11.30 New Hampshire
11.31 New Jersey
11.32 New Mexico
11.33 New York
11.34 North Carolina
11.35 North Dakota
11.36 Ohio
11.37 Oklahoma
11.38 Oregon
11.39 Pennsylvania
11.40 Rhode Island
11.41 South Carolina
11.42 South Dakota
11.43 Tennessee
11.44 Texas
11.45 Utah
11.46 Vermont
11.47 Virginia
11.48 Washington
11.49 West Virginia
11.50 Wisconsin
11.51 Wyoming
Chapter 12 Workers' Compensation Subrogation Jurisdiction
12.1 Jurisdiction Generally
12.2 Workers' Compensation Jurisdiction and Diversity
12.3 "Arising under" vs. "Not Arising under"
12. 4 Procedure for Removal
12.5 Strategic Recommendations
Table of Other Authorities
Table of Cases
Table of Statutes
Gary L. Wickert is an insurance trial lawyer and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and is a national and international speaker and lecturer on subrogation 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., he 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 of more than $500 million in recoveries and credits for over 250 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 and is a dual board-certified 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 30 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. 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 U.S. Supreme Court, and has been recognized as one of Law & Politics magazine’s “Super Lawyers” the past seven years.
Praise for Workers' Compensation Subrogation in All 50 States:
"This book fills a long-standing need for a complete treatise covering this confusing subject across the country. Gary Wickert is clearly the country's leading authority on nationwide workers' compensation subrogation." - Loren Smith, Kelly & Smith, P.C., Houston, Texas
"Regardless of which state you handle claims in, if you have workers' compensation subrogation responsibilities - you need this book!" - Jennifer Williams, Claims Service Consultant, The Hartford, Orlando, Florida
"The book is the bible on workers' compensation subrogation - regardless of which state the claim is in." - Paul Webb, Claims Specialist, Latitude Claims Services, Inc., Bloomfield Hills, Michigan
"When our own state's workers' compensation statute came under attack, Gary Wickert was the first person we turned to for information and experience as to how other state's statutes handled the same issues. This book in invaluable for subrogation lawyers and insurance subrogation professionals." - Dave Matejczyk, Vozar, Roberts & Matejczyk Co., L.P.A., Subrogation Lawyer and former Board Member of the National Association of Subrogation Professionals, Cleveland, Ohio
"Workers' Compensation Subrogation In All 50 States provides an invaluable tool for the subrogation professional in one handy source. The compilation of this material was a Herculean effort on Attorney Gary Wickert's part, and the insurance industry is indebted to him for leading the charge in protecting and enforcing carrier's rights in this one time underutilized area of claims handling. I highly recommend Attorney Gary Wickert's book and counsel to all workers' compensation adjusters and claims managers interested in maximizing subrogation recoveries in each state they write business." - Bill Gray, GUARD Insurance Group, Home Office Claims Analyst/Specialist, Wilkes-Barre, Pennsylvania
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