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Automobile Insurance Subrogation: In All 50 States - Hardcover
Automobile Insurance Subrogation: In All 50 States - Electronic
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§ 4.04 ARKANSAS
§ 4.04[1] Subrogation Rights
Arkansas recognizes subrogation as the substitution of one person
in place of another with reference to lawful claim, demand or right,
so that he who is substituted succeeds to rights of another in relation
to debt or claim, and its rights, remedies, or securities.1 A typical
automobile insurance policy subrogation provision reads something
like:
We are subrogated to the extent of our payment to the
proceeds of any settlement the insured person recovers from
any party liable for the bodily injury.2
The Arkansas Supreme Court has held that subrogation is
essentially an equitable remedy, and even where there are contract
provisions between the insured and the insurer for subrogation rights,
equitable principles prevail.3 An equitable right of subrogation may
also arise by convention or contract--a subrogation provision in an
automobile insurance policy.4 However, it may also arise simply as
legal or equitable subrogation, or in other words by operation of law
based on facts giving rise to a right of subrogation.5 In this way,
Arkansas blurs the distinction between equitable and contractual
subrogation and holds that while it is the subrogation provision in a
contract of insurance that establishes an insurer's right to
conventional subrogation, the provision does not and cannot define
the nature or extent of the remedy subrogation provides.6
At one time Arkansas distinguished between legal (equitable)
subrogation and conventional (contractual) subrogation.7 Conventional
subrogation once differed from equitable subrogation because an
insurance company was free to fix the terms and conditions upon
which it would offer insurance. However, in 1997 Arkansas rejected
this distinction, noting the equitable principles underlying
subrogation.8 While insurance companies are free to set terms and
conditions, they are not free to define the terms and conditions of the
equitable remedy of subrogation.9
The underlying purpose of subrogation is to prevent the insured
from recovering twice for one element of damages as would be the
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.
