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Automobile Insurance Subrogation: In All 50 States - Hardcover
Automobile Insurance Subrogation: In All 50 States - Electronic
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§ 4.05 CALIFORNIA
§ 4.05[1] Subrogation Rights
In general, subrogation can arise by contract, statute or equitable
principles.1 Under California law, the purpose of subrogation is to
prevent insured from obtaining double recovery, and thus being
unjustly enriched, and to place responsibility for paying loss on party
who caused loss.2
It is well-established in California that an assignment of a cause of
action for personal injuries is void, and in the absence of statutory
authority, a cause of action for personal injury is not subject to
subrogation.3 Historically, at common law the assignability of causes
of action sounding in tort depended upon survivability. So causes of
action for damage to property, since they survived the death of the
parties, were assignable and causes of action for injury to the person,
since they did not survive, were not assignable.4
However, the reasons underlying the policy against the assignment
or subrogation of certain personal causes of action do not apply to
insurance policy provisions that merely require the insured to
reimburse the insurer out of any recovery or settlement.5 Substance,
rather than form, is the determining factor in whether or not a clause
is an assignment or true subrogation.6
As a result of this proscription of assigning a personal injury cause
of action, a true cause of action for subrogation, either equitable or
contractual, is not allowed in California.7 An excellent summary of
general subrogation law in California can be found in the
unpublished case of Malibu Broadbeach, L.P.8 In California, it is the
insurer's duty to protect subrogation rights.9 In theory, there are only
two possible means to protecting subrogation rights:
(1) file a separate lawsuit filed against the tortfeasor; or
(2) seek reimbursement of payments directly out of the insured's
recovery from the tortfeasor.10
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.
