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Workers' Compensation Subrogation In All 50 States - 5th Edition - Hardcover
Workers' Compensation Subrogation In All 50 States - 5th Edition - Electronic
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§ 11.33 New York
§ 11.33[1] Statutory Subrogation Rights
In New York, a carrier's subrogation rights are governed by New
York Workers' Compensation Law § 29, et seq.1 An employee
cannot sue an employer who carries workers' compensation
insurance, or a fellow employee, for an accidental injury which arose
out of and in the course and scope of employment. However, if the
injury or death is caused by someone else, a third person, even if it
happened under circumstances which entitled the employee to
workers' compensation, there is a right to sue that third person for
such negligence or tort. Anytime prior to the award of workers'
compensation benefits or within six months thereafter, an employee
may institute suit against a third party to recover tort damages.2 New
York's subrogation statute is one of the longest and most convoluted
in the country. Section 29 reads as follows in pertinent part:
§ 29. Remedies of employees; subrogation.
(1) If an employee entitled to compensation under this
chapter be injured or killed by the negligence or wrong of
another not in the same employ, such injured employee, or in
case of death, his dependents, need not elect whether to take
compensation and medical benefits under this chapter or to
pursue his remedy against such other but may take such
compensation and medical benefits and at any time either
prior thereto or within six months after the awarding of
compensation or within nine months after the enactment of a
law or laws creating, establishing or affording a new or
additional remedy or remedies, pursue his remedy against
such other subject to the provisions of this chapter. If such
injured employee, or in case of death, his dependents, take or
intend to take compensation, and medical benefits in the case
of an employee, under this chapter and desire to bring action
against such other, such action must be commenced not later
§ 11.33 New York
§ 11.33[1] Statutory Subrogation Rights
§ 11.33[2] Third Parties
§ 11.33[3] Allocation of Third-Party Recovery
§ 11.33[4] Attorneys' Fees and Costs
§ 11.33[5] Credit/Advance
§ 11.33[6] Related Subrogation Issues
§ 11.33[7] Statutes of Limitations
§ 11.33[8] Workers' Compensation in New York
Gary 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 and motivational topics. Mr. Wickert is also a politician in Wisconsin, serving his fourth term as Town Supervisor in the Township of Cedarburg. 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 firm of Matthiesen, Wickert & Lehrer, S.C. He oversees a National Recovery Program which includes a network of nearly 300 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 250 insurance companies. Gary Wickert is also a commercial fiction author and his latest political thriller, Dark Redemption (Tudor Publishers), is available on Amazon.com.
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 nationally certified as a Civil Trial Advocate by the National Board of Trial Advocacy (NBTA), 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 nearly twenty-five years, he has also served as an expert witness 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 is one of only a few lawyers to have ever represented a client before the United States Supreme Court on a subrogation issue, and was named one of Law & Politics and Milwaukee Super Lawyers magazine's Super Lawyers for 2005, 2006, and 2008. For a complete resume on Gary L. Wickert, see Appendix A-13 of this book.
