Originally from:
Automobile Insurance Subrogation in All 50 States - Second Edition - Hardcover
Automobile Insurance Subrogation in All 50 States - Second Edition - Digital
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§ 4.49[1] Subrogation Rights
West Virginia recognizes both the equitable and contractual rights
of subrogation.1 However, these rights are subject to the Made Whole
Doctrine, as set forth below. This equitable right of subrogation may
be modified or extinguished through express contractual language.2
Insurance carriers may also avail themselves of the right of
reimbursement in West Virginia.3 However, an insurer cannot rely on
a subrogation clause in its policy to receive reimbursement from its
own insured after a settlement with a tortfeasor.4 An insurer may not
seek subrogation of medical payments from an insured in the absence
of specific reimbursement language in the policy which provides for
reimbursement of such medical payments to the extent that such
payments were compensated by settlement with or judgment against
a tortfeasor. However, an insurer may not be subrogated against a
third-party insurer and its insureds.5
West Virginia does have some anti-subrogation law when it comes
to governmental liability. Section 29-12A-13(c) provides as follows:
(c) All actions filed against a political subdivision shall be
filed in the name of the real party or parties in interest and
in no event may any claim be presented or recovery be had
under the right of subrogation.
A plaintiff’s recovery against a political subdivision must be reduced
by the amount of any first party benefits the plaintiff has received for
the same injuries and damages for which a claim is made against the
political subdivision.7 Therefore, § 29-12A-13(c) bars a direct claim
against and recovery from a political subdivision by a party claiming
under a right of subrogation to the claim of another party against the
subdivision.8 The statute will likely also prevent reimbursement
efforts by a subrogated carrier against a recovery by its insured,
because the insured’s recovery must be reduced by the amount of the
collateral source payments. The West Virginia Supreme Court of
Appeals has stated that the clear and sole purpose of the statute is to
provide financial benefit to political subdivisions. Aside from
accomplishing that purpose, the statute is not to be applied to inure to
Gary L. Wickert is an insurance trial lawyer and is regarded as one
of the world's leading experts on insurance subrogation. He is the
author of several subrogation books and legal treatises and is a
national and international speaker and lecturer on subrogation and
motivational topics. Mr. Wickert is also a politician in Wisconsin,
serving his fifth term as Town Supervisor in the Township of
Cedarburg. 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., he returned to his native Wisconsin in 1998 and
co-founded the firm of Matthiesen, Wickert & Lehrer, S.C. He
oversees a National Recovery Program which includes a network of
nearly 300 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 250 insurance
companies. Gary Wickert is also a commercial fiction author and his
latest political thriller, Dark Redemption (Tudor Publishing), is
available on www.Amazon.com.
Licensed in both Texas and Wisconsin, Mr. Wickert is double
board-certified in personal injury law and civil trial law by the Texas
Board of Legal Specialization. He is nationally certified as a Civil
Trial Advocate by the National Board of Trial Advocacy (NBTA), for
whom he has written and graded product liability questions contained
on the NBTA national certification exam taken by trial lawyers
around the country. For over 25 years, he has served as an expert
witness 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 is one of only a
few lawyers to have ever represented a client before the United
States Supreme Court on a subrogation issue.
In 2002, Gary Wickert authored and published a treatise entitled
Workers' Compensation Subrogation In All 50 States (Juris
Publishing, Inc., New York), which is now in its Fifth Edition. You
can preview the treatise's contents and chapter summaries at
www.jurispub.com. It serves as the bible on workers' compensation
subrogation throughout the country and is the most thorough and
complete treatise on workers' compensation subrogation ever
published.
In 2005, Gary Wickert authored and published his second treatise
entitled ERISA and Health Insurance Subrogation In All 50 States,
(Juris Publishing, Inc., New York), which is now in its Fifth Edition.
You can preview its contents and chapter summaries at
www.jurispub.com. This treatise focuses on health insurance
subrogation in all 50 states and is in as much demand as the first
treatise.
In 2006, after years of receiving subrogation questions involving
livestock/vehicle collisions in all 50 states, Gary Wickert authored
and published his third treatise entitled Where's The Beef?
Subrogating Livestock/Vehicle Collisions In All 50 States, which is
now in its Second Edition. This treatise focuses on the laws
regarding liability of livestock owners in all 50 states and to date is
the most thorough treatment of this area of subrogation law ever
assembled. This treatise is available directly through Gary Wickert's
firm or his firm's website at www.mwl-law.com.
In 2008, Gary Wickert, with the help of his partners, Bradley W.
Matthiesen and Douglas W. Lehrer, authored and published his
fourth treatise entitled Fundamentals of Insurance Coverage In All
50 States, (Juris Publishing, Inc., New York), which is now in its
Fourth Edition. You can preview this treatise's contents and chapter
summaries at www.jurispub.com. This one-of-a-kind treatise covers
common issues and common rules to coverage triggers, equitable
relief, economic loss, property damage and a variety of policy
exclusions.
For information about Matthiesen, Wickert & Lehrer's National
Recovery Program, fees, list of clients, numerous subrogation links,
reported subrogation decisions, and published articles on the issue of
subrogation, visit his firm's website at www.mwl-law.com. Gary
Wickert can be reached at gwickert@mwl-law.com.
