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Automobile Insurance Subrogation: In All 50 States - Hardcover
Automobile Insurance Subrogation: In All 50 States - Electronic
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§ 4.19 LOUISIANA
§ 4.19[1] Subrogation Rights
Louisiana law recognizes only contractual (conventional)
subrogation and statutory subrogation.1 It does not recognize
equitable subrogation. Article 1825 of the Louisiana Civil Code
actually gives the legal definition of subrogation:
Subrogation is the substitution of one person to the rights
of another. It may be conventional or legal.2
Article 1855 further provides:
Performance rendered by a third person effects
subrogation only when so provided by law or by
agreement.3
Insurers in Louisiana may enforce their contractual right of
subrogation if the Plan contains adequate subrogation language.4
Because there is no right of equitable subrogation for insurers,
sufficient language granting a right of subrogation must exist within
the terms of the policy.5 In the absence of a provision in the
insurance policy granting subrogation to the insurer, the insured may
collect from a third-party tortfeasor and retain all that he has been
paid by insurer.6
Instead of enforcing common law equitable subrogation, Louisiana
has enacted a series of statutes which define and deal with
subrogation. They read as follows:
Art. 1826. Effects.
A. When subrogation results from a person’s performance of
the obligation of another, that obligation subsists in favor of
the person who performed it who may avail himself of the
action and security of the original obligee against the
obligor, but is extinguished for the original obligee.
B. An original obligee who has been paid only in part may
exercise his right for the balance of the debt in preference to
the new obligee. This right shall not be waived or altered if
the original obligation arose from injuries sustained or loss
occasioned by the original obligee as a result of the
negligence or intentional conduct of the original obligor.7
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.
