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Automobile Insurance Subrogation: In All 50 States - Hardcover
Automobile Insurance Subrogation: In All 50 States - Electronic
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§ 4.26 MISSOURI
§ 4.26[1] Subrogation Rights
A personal injury cause of action is not assignable in Missouri.1
Missouri courts have therefore held that it must necessarily follow
that a purported assignment of such right of subrogation in an
insurance policy is not allowed.2 Missouri essentially holds that the
purported assignment of a right of recovery by a subrogation clause
in a policy is of no validity and effect.3 Furthermore, Missouri courts
have declared that in the absence of statute providing subrogation
rights, a cause of action for personal injury or death is not assignable
and pre-accident assignments of rights are not possible because at
that point the damages are a mere expectancy, or inchoate right, and
not a debt and not assignable.4
Therefore, subrogation and reimbursement provisions which purport
or attempt to assign a part of the insured's right of recovery for
personal injuries are illegal and unenforceable as against public policy
in Missouri.5 It also then follows that an insured's refusal to sign a
subrogation receipt will not constitute a material breach of the terms of
the policy.6 Contractual or consensual liens are not enforceable in
Missouri to the extent they encompass personal injury actions.
Missouri is so hostile to subrogation provisions, that even when a
Kansas insurance company pays benefits to a Kansas insured as a
result of a collision with an Illinois tortfeasor which occurred in
Missouri, Missouri will apply its own anti-subrogation law and deny
the carrier subrogation.7
Assignment of a claim differs from subrogation to a claim,
because in assignment, the assignor gives all rights to the assignee,
whereas in subrogation, the insured retains legal title to the claim.8
An important distinction between subrogation and assignment is that
subrogation presupposes actual payment and satisfaction of a debt or
claim to which the carrier is subrogated, although the remedy is kept
alive in equity for benefit of one who made payment under
circumstances entitling him to contribution or indemnity, while
assignment necessarily contemplates continued existence of debt or
claim assigned.9
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.
