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Automobile Insurance Subrogation: In All 50 States - Hardcover
Automobile Insurance Subrogation: In All 50 States - Electronic
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§ 4.14 ILLINOIS
§ 4.14[1] Subrogation Rights
As do a small minority of other states, including Missouri to the
west of it, Illinois has established that a cause of action for personal
injuries is not assignable.1 However, unlike Missouri, which
prohibits subrogation clauses in automobile insurance policies
because of this prohibition, Illinois does not look at subrogation as an
assignment of a personal tort.2 In Illinois, subrogation operates only
to secure contribution and indemnity whereas an assignment transfers
the whole claim. Medical expense subrogation clauses do not purport
to transfer or assign the entire claim of the insured against a
tortfeasor. Rather, it impresses a lien in favor of the insurer to the
extent of its payment upon any recovery obtained by the insured
from the tortfeasor.3 As one Illinois court stated:
Subrogation presupposes an actual payment and satisfaction of the
debt or claim to which the party is subrogated, although the remedy
is kept alive in equity for the benefit of the one who made the
payment under circumstances entitling him to contribution or
indemnity while assignment necessarily contemplates the continued
existence of the debt or claim assigned. Subrogation operates only to
secure contribution and indemnity, whereas an assignment transfers
the whole claim.4
Illinois allows subrogation in indemnity insurance policies, such as
automobile insurance policies, where the insured is indemnified for
medical expenses resulting from an accident, rather than a nonindemnity
policy where a person is paid a certain amount for loss of
an arm, etc.5
Therefore, Illinois recognizes both equitable and contractual
subrogation, despite its prohibition on assignments of personal injury
actions.6 The right of subrogation may be grounded in equity and
may also be founded upon an express or implied agreement.7
However, Illinois does not recognize equitable subrogation rights
of health insurers.8 The Illinois Supreme Court decided in 1990, after
a long and distinguished history of allowing equitable subrogation,
that only contractual subrogation would be allowed for health Plans.9
It is the contractual terms of a health Plan which control, not
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.
