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Subrogating Medical and Property Damage Claims - Chapter 3 - Automobile Insurance Subrogation: In All 50 States
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Originally from: Automobile Insurance Subrogation: In All 50 States - Hardcover Automobile Insurance Subrogation: In All 50 States - Electronic
Preview Page CHAPTER 3
SUBROGATING MEDICAL AND PROPERTY
DAMAGE CLAIMS
§ 3.01 Automobile Subrogation and the American
Tort System
American civil law was passed down to us from English common
law.1 Early English law did not distinguish between torts and crimes.
Early remedies for wrongs committed in a "civilized" society were
developed over time and included waging a private war, known as a
"feud." As with most aspects of society in an age without much
communication or travel, Anglo-Saxon courts were local and applied
local laws. More geographically broad courts, known as Royal
courts, developed after the Norman Conquest in 1066, and handled
the larger civil wrongs. Minor wrongs (now known as
misdemeanors) were still handled in the local courts, however. As
late as the 13th Century, there was little "common law," a law
developed by custom, beginning before there were any written laws
and continuing to be applied by courts after there were written laws.
Today, the concept of negligence is an example of common law.
There are no broad negligence statutes which simply state that
somebody will be liable for damages if he commits a tort. The
concept of negligence is simply assumed and applied as a result of
our inheritance of English common law.
A "tort" is a civil wrong, other than breach of a contract, for which
the court will provide a remedy in the form of an action for damages.
A "tortfeasor" is one who commits a tort and is considered to be
"liable" for the tort, rather than "guilty." The word "guilty" is used in
criminal law. Someone tripping on a walkway, kids sending a
baseball through a window, a rear-end collision, a tire blowing out on
your car: they can all be examples of torts. Some torts, such as
battery, can also be (in some jurisdictions) violations of criminal law,
for which the suspect could be found "guilty."
In a civil tort action (as opposed to a criminal complaint), the
injured party is called the "plaintiff" and the party causing the injury
and sued by the plaintiff is called the "defendant." Both parties are
generally private actors, and the remedy comes in the form of money
damages awarded by a judge or jury. Generally, a tort involves
breach of a legal duty (e.g., duty to keep a proper lookout, duty to
keep control of one's vehicle, duty to not drive intoxicated) which is
known as "negligence." If the defendant is found negligent, the
plaintiff is awarded reasonable damages which are causally related to
the defendant's negligence. These damages can be broken down into
"economic damages" such as medical expenses (past and future) and
lost wages (past and future) as well as "noneconomic damages"
which include pain and suffering, mental anguish, and other
intangible damages not capable of accurate calculation.
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.
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