Originally from:
Automobile Insurance Subrogation: In All 50 States - Hardcover
Automobile Insurance Subrogation: In All 50 States - Electronic
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§ 4.03 ARIZONA
§ 4.03[1] Subrogation Rights
Arizona recognizes both equitable and contractual subrogation
with exceptions.1 In Arizona, tort actions for personal injuries do not
survive and are not assignable.2 The result of this anti-subrogation
rule is that, absent statutory authorization, an assignment of a cause
of action for personal injuries against a third-party tortfeasor is void
and unenforceable.3 A typical automobile insurance subrogation
clause reads as follows:
Upon payment under coverage C of this policy the company
shall be subrogated to the extent of such payment to the
proceeds of any settlement or judgment that may result from
the exercise of any rights of recovery which the injured
person or anyone receiving such payments may have against
any person or organization and such person shall execute
and deliver instruments and papers and do whatever else is
necessary to secure such rights. Such person shall do
nothing after loss to prejudice such rights.4
The assignment of tort actions for personal injuries has been
prohibited because, among other reasons, such actions do not survive
the death of the injured person in the absence of statute.5 In Arizona,
whether a claim is statutory is not determinative of its assignability
or survivability. Neither personal injury claims nor wrongful death
claims survive the injured or deceased plaintiff and therefore are
unassignable.6 This is true even though other states feel that the
subrogation clause in a medical payments provision of an insurance
policy does not constitute an assignment of the personal injury claim
and therefore the subrogation clause should be enforced.7
Arizona prohibits enforcing a right of reimbursement with respect
to the payment of medical expenses.8 This is because the courts have
compared reimbursement with assignments just as it has subrogation.
The idea behind this prohibition of the subrogation and
reimbursement of medical expenses is that unscrupulous people
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.
