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Wisconsin - 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 § 4.50 WISCONSIN § 4.50[1] Subrogation Rights There are three types of subrogation in Wisconsin: (1) legal (also
known as equitable); (2) conventional (also known as contractual);
and (3) statutory.1 Wisconsin recognizes all three.2 However, with
regard to conventional subrogation, if there is no express subrogation
clause in the insurance policy or insurance contract, the policy must
be analyzed to determine whether it is a policy of investment or a
policy of indemnity before the application of equitable subrogation
will lie.3 If the contract is found to be one of indemnity, Wisconsin
allows the insurer to equitably subrogate in the absence of an express
subrogation clause.4 On the other hand, if the contract is found to be
one of investment, the court will not permit the insurer to equitably
subrogate without an express subrogation clause.5 Under principles
of equitable subrogation, even in absence of express subrogation
agreement, an indemnity insurer may still be entitled to receive
subrogation.6
The difference between an indemnity contract and an investment
contract is that in an indemnity contract, the position of an insurer is
analogous to that of a surety.7 In contrast, in an investment contract,
the owner of the policy is contracting for a particular benefit due
upon the occurrence of specified events.8 This right is absolute and
independent of the right against any third party responsible for the
injury covered by the policy.9 This investment-indemnity contract
distinction has turned upon more than the measure of liability,
whether measured by a fixed sum or the extent of the insured’s loss.
The availability of equitable subrogation has generally depended
upon the type of coverage involved. The courts have implied rights
of subrogation under policies covering property damages, such as
automobile insurance and property insurance.10 On the other hand,
courts that have not recognized implied rights of subrogation in the
area of personal insurance, such as life insurance benefits, medical
expenses, health insurance and hospitalization benefits coverage and
accident benefits coverage.11 Group medical insurance is indemnity
insurance.12 This is because the purpose of the group health Plan is to
indemnify the insured from whatever loss he or a dependent sustains
by reason of a specified hazard.13 However, a provision which
provides for hospitalization and physician services has been
determined to be an investment contract because its purpose is to
indemnify the insured only for those out-of-pocket losses which are
not otherwise compensated by any other insurance.14
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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