Originally from:
Automobile Insurance Subrogation: In All 50 States - Hardcover
Automobile Insurance Subrogation: In All 50 States - Electronic
Preview Page
§ 4.27 MONTANA
§ 4.27[1] Subrogation Rights
Montana recognizes subrogation as an Equitable Doctrine which is
not dependant on any contractual relationship within the parties and
is not dependant on privity.1 Subrogation of medical payment
benefits, considered to be an assignment of a personal injury claim,
was once prohibited.2 In Reitler,3 an insured's automobile carrier was
not allowed to subrogate against a third-party's liability carrier who
caused a traffic accident injuring its insured, where the insured had
already settled with the third party. After Allstate filed a subrogation
action against the third-party carrier, the court, citing Montana's
long-standing opposition to the assignment of personal injury
claims,4 held that medical payment subrogation clauses are invalid,
due in part to the following public policy considerations:
(1) insured paid a premium for medical payment coverage;
(2) insured personally is the one likely to suffer most if
medical payments received must be repaid out of a third
party recovery; and
(3) tortfeasor's carrier may consider that the injured person
has already been paid medical expenses and make a smaller
offer which allows that such payment had already been
made.5
In automobile insurance policies, subrogation clauses themselves
with respect to medical benefit payments had at one time been
declared invalid.6 A typical subrogation clause read as follows:
In the event of any payment under this policy, we are entitled
to all the rights of recovery of the person to whom payment
was made against another. That person must sign and
deliver to us any legal papers relating to that recovery, do
whatever else is necessary to help us exercise those rights
and do nothing after loss to prejudice our rights.7
In 2002, the Montana Supreme Court decided the case of
Swanson.8 The Supreme Court in Swanson revised the Reitler
decision, noting that since the Reitler decision, the Montana
legislature had revised § 33-23-203 in 1997 to allow for "reasonable
subrogation" in auto policies.9 It held that Med Pay subrogation is
valid again, but only to the extent that the insured has been made
whole. As a practical matter, it is difficult to establish that an insured
has been made whole, but carriers can subrogate Med Pay benefits if
such a showing is made. Furthermore, § 33–23–203(2), provides:
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.
