Originally from:
Automobile Insurance Subrogation: In All 50 States - Hardcover
Automobile Insurance Subrogation: In All 50 States - Electronic
Preview Page
§ 4.01 ALABAMA
§ 4.01[1] Subrogation Rights
Alabama recognizes two distinct types of subrogation: (1) legal
subrogation, arising by operation of law where a surety having a
legal liability pays a claim primarily owed by its principal; and
(2) conventional subrogation, grounded upon a lawful contract
between the two parties.2 Equitable subrogation rights are
enforceable in Alabama.3 Therefore, even if a policy of insurance
does not contain the necessary magic subrogation or reimbursement
language, it may still attempt to subrogate under the Doctrine of
Equitable Subrogation. Nonetheless, most Alabama policies contain
subrogation language such as:
C. OUR RIGHT TO RECOVER FROM OTHERS
"If we make any payment, we are entitled to recover what we
paid from other parties. Any person to or for whom we make
payment must transfer to us his or her rights or recovery
against any other party. This person must do everything
necessary to secure these rights and must do nothing that
would jeopardize them."
This policy language grants the carrier a contractual right of
subrogation and reimbursement. Regardless of whether or not the
carrier subrogates under legal subrogation or conventional
subrogation, the Alabama Supreme Court has held that equitable
considerations and principles (Made Whole Doctrine, Common Fund
Doctrine, etc.) will apply.4
Subrogation in Alabama is based on two equitable principles: (1)
an insured should not recover twice for a single injury; and (2) an
insurer should be reimbursed for payments it made that, in fairness,
should be borne by the wrongdoer.5 An auto carrier is subrogated and
entitled to reimbursement for medical expenses even though the
insured has not claimed or recovered medical expenses as an element
of damages in his third-party lawsuit.6
Gary 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.
