Originally from:
Automobile Insurance Subrogation: In All 50 States - Hardcover
Automobile Insurance Subrogation: In All 50 States - Electronic
Preview Page
§ 4.31 NEW JERSEY
§ 4.31[1] Subrogation Rights
New Jersey recognizes and favors equitable subrogation.1 It
recognizes that subrogation rights are created by contract, by statute,
and judicially as an equitable device. However, New Jersey's
convoluted no-fault automobile insurance laws allow for relatively
little application of contractual and equitable subrogation to automobile
insurance.
New Jersey is also an anti-subrogation state. New Jersey prohibits
contractual and equitable automobile insurance subrogation, not as a
result of an anti-subrogation statute, but through statutory abrogation
of the common law Collateral Source Rule. Section 2A:15-97
(known as "§ 97") of the New Jersey Statutes provides as follows:
In any civil action brought for personal injury or death,
except actions brought pursuant to the [New Jersey
Automobile No-Fault Act], if a plaintiff receives or is entitled
to receive benefits for the injuries allegedly incurred from
any other source other than a joint tortfeasor, the benefits,
other than workers' compensation benefits or the proceeds
from the life insurance policy, shall be disclosed to the court
in the amount thereof which duplicates any benefit contained
in the award shall be deducted from any award recovered by
the plaintiff, less any premium paid to an insurer directly by
the plaintiff or by any member of the plaintiff's family on
behalf of the plaintiff for the policy period during which the
benefits are payable. Any party to the action shall be
permitted to introduce evidence regarding any of the matters
described in this Act.2
Prior to 1987, New Jersey followed the common-law Collateral
Source Rule, which prohibited a tortfeasor from reducing payment of
a tort judgment by the amount of money received by an injured party
from other sources. The intent behind § 97 was to contain the
spiraling cost of liability insurance by eliminating the ostensible
double recovery which legislators believed flowed from the
common-law Collateral Source Rule and allocate the benefits of that
change to liability insurers.3 It didn't work. In 2005, New Jersey still
had the most expensive auto insurance in the nation.4
Section 97 reduces a tort judgment or settlement by the amount of
collateral source benefits, and prohibits insurers from recovering
subrogation or reimbursement out of any tort judgment or settlement
in favor of the insured.5 Its purpose is twofold: (1) to eliminate the
double recovery to plaintiffs that flowed from the common-law
Collateral Source Rule and to allocate the benefit of that change to
liability carriers, and (2) to contain spiraling liability insurance
costs.6 By reducing a plaintiff's tort judgment by the amount of
benefits already received (with limited statutory exceptions), the
Legislature intended to reduce the burden to liability carriers.
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.
