Originally from:
Workers' Compensation Subrogation In All 50 States - 5th Edition - Hardcover
Workers' Compensation Subrogation In All 50 States - 5th Edition - Electronic
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CHAPTER 3
ALLOCATING THIRD-PARTY RECOVERIES
Let's face it, when money is put on the table in a third-party
lawsuit and you are competing against an injured worker, an insured
or a host of plaintiffs for a limited amount of funds, all of your
subrogation training and experience boils down to one simple
question: Who gets what? The answer to this question and the effect
that different state laws will have on a subrogated carrier's rights to
recover its workers' compensation subrogated interests depends on
the laws of the particular state. In order to understand the allocation
philosophy employed by some statutes and courts in a workers'
compensation setting, it is useful to understand the law involving
allocation of non-workers' compensation subrogation recoveries.
§ 3.1 Non-Workers' Compensation
Where the insurer has paid a claim pursuant to the terms of a nonworkers'
compensation policy, and a subrogation recovery has been
made from the third party, there are various approaches to
determining the priority between the insurer and the insured
(subrogor) to the subrogation proceeds obtained from the third party
responsible for the loss. The three traditional approaches for making
this allocation have been summarized by Professor Keeton in his
Insurance Law Treatise as follows:
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 or 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
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.
