Originally from:
Automobile Insurance Subrogation: In All 50 States - Hardcover
Automobile Insurance Subrogation: In All 50 States - Electronic
Preview Page
§ 4.22 MASSACHUSETTS
§ 4.22[1] Subrogation Rights
Massachusetts recognizes equitable subrogation.1 Nevertheless,
Massachusetts has held that the right of subrogation does not arise
automatically upon payment of benefits under any contract of
insurance. The availability of subrogation depends on the type of
coverage involved. For example, subrogation rights are implied with
policies covering property damage.2 On the other hand, courts have
not recognized implied rights of subrogation in the area of “personal
insurance.”3 This includes insurance which provides for medical
expense benefits as well as life insurance and other forms of accident
insurance.4 This is because personal insurance is said to be less a
contract of indemnity than a form of investment, imposing on the
insurer an absolute duty to pay if the main condition occurs.
Therefore, in the absence of a subrogation agreement between the
insurer and insured, an insurer that has paid medical or hospital
expense benefits has no right to subrogation against a third-party
tortfeasor.5 An insurer may seek reimbursement against its insured if
the insured makes a third-party recovery which includes elements of
damages for which the insured paid benefits.6 Massachusetts has not
addressed whether or not this right to reimbursement must be set
forth in the terms of the Plan or policy but, based on previous case
law indicating that a right of subrogation must be based on clear
subrogation language and the policy, such might be the case if and
when it is addressed.7
If an insurer has paid its insured for a loss and is subrogated to the
rights of its insured, the insurer may bring a subrogation action,
either in its own name or as subrogee, on behalf of insured against
third party whose wrongful act caused the loss.8
§ 4.22[2] Automobile Insurance Coverage
Until recently, automobile insurance in the Commonwealth of
Massachusetts was monopolistic in nature due to price controls
instituted by the state which determined the rates that insurance
companies set for the policies that they wrote. Certain levels of
coverage cost a specific amount of money, regardless of the carrier
involved. This had the effect of keeping insurance rates artificially
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.
