Subrogation Generally - Chapter 1 - Automobile Insurance Subrogation: In All 50 States
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Automobile Insurance Subrogation: In All 50 States - Hardcover
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§ 1.01 Elements
In legal parlance, subrogation may be defined as the substitution
of one person in the place of another with reference to a lawful claim
or right. It can also be effectively referred to as simply a substitution.
Obscured in legalese, some courts have defined it as a "device
adopted by equity to compel the ultimate discharge of an obligation
by him who in good conscience should pay it." Even Louisiana, the
state with perhaps the most peculiar civil laws in the country, has
defined subrogation as "the legal fiction established by law whereby
an obligation, extinguished with regard to the original creditor by
payment which he has received from a third person, or from the
original debtor but with funds the third person has provided, is
regarded as substituting in favor of this third person who in essence
steps into the shoes of the original debtor and is entitled to assert, in
the measure of what he has paid, the rights and actions of the former
creditor."1 It's enough to make your head explode.
In practice, however, I have always advised clients that
subrogation should be considered any effort by an insurance carrier,
or self-insured entity, to recover money which it has paid out in a
claim or to which it is otherwise legally entitled to recover. This
includes such things as the recovery of mistaken payment of benefits,
coordination of benefits, equitable contribution, recovery of
premiums, deductibles, and overpayments, as well as traditional
subrogation by means of recovering benefits paid out through the
rights of the insured against a third party.
When undertaking an examination and discussion of automobile
insurance subrogation, it is necessary to review the general principles
underlying the doctrine of subrogation. Before one can examine the
details of subrogation in a specific area, you should have a working
knowledge of the basic principles of subrogation generally.
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.