Real Justice for Real People. SUBROGATION Volume 1 Issue 8 June 2011 STRITMATTER KESSLER WHELAN COLUCCIO

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1 Real Justice for Real People SUBROGATION Volume 1 Issue 8 June

2 ABOUT THE COVER ART Table of Four illustrates the concept of subrogation. While the pot should rightfully belong to your client, uninvited interlopers want an unfair share. ABOUT THE ARTIST Jose Ramirez is an artist, teacher and the father of three girls, Tonantzin, Luna, and Sol. He received a BFA (1990) and an MFA (1993) in art from UC Berkeley. In 2001, he received the Brody Award/Getty Visual Arts Fellowship. Jose has illustrated seven children s books, including Quinito s Neighborhood, Frog and Friends Save Humanity, Zapata para los Niños, Papito Dios, and Quinito Day and Night. Among his commissions, he has worked for several nonprofit organizations, hospitals, cities, film and television companies and cultural centers across the country. In addition, he has lectured and exhibited his work in museums, universities, galleries and cultural centers in New York, Washington DC, San Francisco, San Diego, Texas, Japan, and Mexico. For more info please visit ramirezart.com. You may contact him at or TABLE OF CONTENTS ABOUT THE COVER ART... 2 ABOUT THE ARTIST... 2 ABOUT STRITMATTER KESSLER WHELAN COLUCCIO... 7 ABOUT PAUL L. STRITMATTER... 8 SUBROGATION WHY SHOULD YOU CARE ABOUT SUBROGATION? CONCEPT AND HISTORY OF SUBROGATION Definitions Subrogation in Personal Injury Law is New Historical Criticism of Subrogation Washington Summary of Subrogation from Mahler Subrogation is Equitable To Prevent Unjust Enrichment and To Do Justice I Don t See Anything Wrong with a Double Recovery Insurers Do Not Reduce Premiums Based on Subrogation Recovery Seldom Is There a True Double Recovery in Personal Injury Litigation Subrogation Creates Collateral Issues WASHINGTON COMMON LAW The Made Whole Rule of Thiringer You Cannot Prejudice the Insurer s Rights Insurance Commissioner A Case Example Homewood You Need an Expert to Prove Your Client Was Not Made Whole When Do Insurers Have to Pay Attorney Fees & Costs? Practice Tip No Practice Tip No

3 Comparative Negligence Establishes the Client Was Not Made Whole Practice Tip No Practice Tip No WASHINGTON STATUTORY LAW Labor and Industries Statutory Subrogation Practice Tip No Crime Victims Statutory Subrogation Practice Tip No Practice Tip No Practice Tip No Practice Tip No FEDERAL STATUTORY LAW MEDICARE Medicare Subrogation for Past Medical Expenses Practice Tip No Practice Tip No Practice Tip No Medicare Subrogation for Future Medical Expenses Practice Tip No Practice Tip No MEDICAID Practice Tip No The U.S. Supreme Court Decision in Ahlborn The Washington Supreme Court Decision in Wilson A Case Study Pattison Provide Enough Evidence to Support Your Defense of a Subrogation Claim Equitable Defenses to ERISA Subrogation ERISA Plans Rely On Any Plan Language They Wish to Draft A Case Study Rose Defenses to ERISA Subrogation Claims Your Right to Secure All Relevant Plan Documents Practice Tip No Practice Tip No Practice Tip No Practice Tip No ETHICAL CONSIDERATIONS CONCLUSION POST SCRIPT Law Enforcement and Firefighters Indian Health Services Federal Medical Care Recovery Act SUPPLEMENT TO BOOKLET Medicare Update Ethical Considerations Update EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA) The Federal ERISA Statute Knudson Limited ERISA Subrogation Claims ERISA Plans Believe Sereboff Has Authorized Subrogation Claims

4 Paul Stritmatter has stepped up to meet the challenges subrogation liens present to making clients whole, attacking the problem with characteristic public spirited tenacity. I keep this book within arm s reach at all times. I strongly advise you to do the same. Bill Bailey Paul knows our clients get real justice only when we resolve a case, including subrogation claims, with knowledge and tempered aggression. Subrogation, lien, right of reimbursement and offset are words that describe this important and growing battlefield. Paul s treatise helps us maximize our clients recoveries by showing us how to pay subrogation claims only when we must and only on what we must. Ron Meyers Paul Stritmatter makes muddy waters clear and provides the arguments and citations for fighting subrogation claims. His roadmap and forms for handling Medicare reimbursement claims alone makes this little booklet a must for every personal injury lawyer. Jan Peterson ABOUT Stritmatter Kessler Whelan Coluccio (SKWC) is a premier Pacific Northwest law firm devoted to representing plaintiffs in personal injury and wrongful death claims. Experienced in trial, SKWC attorneys welcome tough, complex cases. Our verdicts and settlements include product liability, nursing home, government liability, medical negligence, highway design, premise and construction site, class action, vehicle crashworthiness, major vehicle collision, maritime and aircraft crash cases. The attorneys at SKWC are committed to making a difference in the lives of our clients, in helping to ensure justice for the injured, and in contributing to the legal community through leadership and education. Visit FightSubro.com Paul Stritmatter created this website/blog for the same reason why he wanted to write this booklet: He forever wants to educate, inspire, and motivate other plaintiff personal injury trial lawyers to serve as strong advocates for their clients in fighting subrogation issues. 6 7

5 ABOUT PAUL L. STRITMATTER the Washington State Bar Association. The American Bar Association awarded Paul its Pursuit of Justice Award in 2003 for his lifelong devotion to the profession and for significant contributions to the pursuit of justice. While his cases and legal association duties take him across the country, Paul is happy to work from the firm s office in Hoquiam, Washington, where he was born and raised. Photo by Meryl Schenker Photography Paul s interest in subrogation is the perfect example of why he is considered one of the top trial lawyers in the country. Few attorneys want to tackle, let alone think about, the troublesome topic of subrogation. However, Paul s passion for getting the best results for his clients motivates him to understand every facet of this evolving area of law. Paul has been a leader in the legal community for decades. Most recently, he received the prestigious 2010 Champion of Justice award from the national public interest firm, Public Justice. He is a founding member and former president of the Trial Lawyers for Public Justice. He also served as president of the Washington State Trial Lawyers Association and of 8 9

6 SUBROGATION By PAUL L. STRITMATTER The topic of subrogation has interested me since I tried my first plaintiff personal injury case in That interest derived from my puzzlement and anger that after a hard fought case, another insurance company was trying to take some of my client s recovery that we had worked so hard to obtain. I didn t want them to get away with that. This, in turn, has led me to be active in this field. I have tried three subrogation cases to successful judgment, pursued several other subrogation lawsuits through summary judgment and appeals, and aggressively negotiated subrogation claims that would impact the bottom line of my clients recoveries. This booklet, another in a series of booklets written and produced by Stritmatter Kessler Whelan Coluccio, is my attempt to educate, inspire and motivate other plaintiff personal injury trial lawyers to be strong advocates for their clients in fighting subrogation issues. WHY SHOULD YOU CARE ABOUT SUBROGATION? There are many reasons why the active personal injury lawyer should be interested and up-to-date on subrogation issues. The growing complexity of the field could result in your facing a malpractice claim if you handle the issue improperly. One law firm in Seattle prosecuting subrogation claims was routinely filing bar complaints against personal injury lawyers who did not comply with their requests. What you know in one area of subrogation may not apply in another. Certainly the differences in ERISA subrogation law compared to Washington common law provide a stark contrast in how subrogation may differ from case to case. The implications and practical applications of the Tobin 1 decision to subrogation in the Labor and Industries setting alone require that you keep up with the latest developments. Demands being made by liability insurers because of the potential of a Medicare subrogation claim are difficult to deal with, because most insurers are not properly applying the law. If you don t know the law, they will take advantage of you and your client. If you properly know and understand Medicare Set-aside requirements, then you should be teaching the rest of us. Talk about a mine field! While subrogation may involve the insurer stepping into the shoes of its insured, some insurers so aggressively take this action that one is reminded of a professional basketball player trying to force his feet into the delicate 1 Tobin v. Department of Labor & Industries, 165 Wn.2d 1016, 199 P.3d 411 (2009)

7 shoes of a ballerina. Taking the metaphor one step farther, you need to learn to defend those Red Shoes or you will turn into the Black Swan from failing to preserve your client s personal injury recovery. Let me put it another way. Assume that Penny Plaintiff is in an automobile crash and suffers a fractured hip. Her medical bills are $25,000 because of the surgery that is necessary to pin the fracture. Terry Tortfeasor negligently caused the automobile crash and is insured by Indifferent Insurer. His liability limits are $100,000. A jury determines that Penny s total damages are $200,000, $25,000 of which is for the medical bills, $15,000 for wage loss, $10,000 for family services, and $150,000 for pain and suffering, disability, disfigurement and loss of enjoyment of life. Terry has no substantial assets to pay the excess damages above Indifferent s liability insurance limits. Penny has no UIM coverage. She collects only $100,000 on her claim. She pays her attorney $33,333 in fees, and $6,667 in reimbursement for costs, leaving her with $60,000 for her $200,000 claim. Now she faces subrogation claims clamoring at the gates. What is the amount of the subrogation claim against Penny s recovery? I will give you a hint. It could be $0, $25,000, $11,250, $7,500 or $15,000 (absent a negotiated different number). Which is it? (The suggested answer is in the Conclusion of this booklet.) If I have properly scared you into worrying that you may not know or understand all there is to know in this field, then read on and hopefully I can be of some help to you. Definitions 2 CONCEPT AND HISTORY OF SUBROGATION Subrogation, according to my personal definition, is one insurance company attempting to steal money from a tort victim, after that victim has been subjected to denial, abuse, delay and untoward pressure in an attempt to recover a reasonable and adequate money award for personal injuries from another insurance company. I must admit, my definition will probably not gain wide acceptance from legal scholars. More traditionally, subrogation is defined as: [t]he substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities. 3 It refers to circumstances in which an insurance company tries to recoup for a claim it paid out when another party should have been responsible for paying at least a portion of the claim. Subrogation allows an insurer who has indemnified an insured to stand in the shoes of the insured on the insured s claim for damages against a third party, usually a tortfeasor. 4 2 Technically if the insurer seeks a recovery from the tort claim settlement or judgment, it is a reimbursement. If the insurer steps into the shoes of the tort victim and makes the claim directly against the tortfeasor, it is subrogation. The terms are often used interchangeably, and are generally collectively referred to as subrogation. However, this distinction can at times be key to the court s analysis and the outcome of a case. 3 Black s Law Dictionary (6th ed. 1990). 4 Robert E. Keeton & Alan I. Widiss, Insurance Law, 3.10 (1988)

8 Subrogation in Personal Injury Law is New Claims for reimbursement against personal injury victims are of only recent vintage. Although frequently available in property insurance cases, before the mid-20th century courts almost universally prohibited this type of recovery in the personal injury context. Chief among the reasons why subrogation was unavailable for personal injuries was the recognition that, for those victims suffering a bodily injury, there is no such thing as a true double recovery, both because the injured party gets his insurance money under a contract as a quid pro quo, Suttles v. Ry. Mail Ass n 5, and, more fundamentally, because personal injury victims are never truly made whole by money damages, let alone deemed to have obtained a double recovery. Double recovery is the basis for subrogation because the relief is premised on the notion that the insured should not unduly benefit from a loss by recovering twice from both the insurer and the tortfeasor. 6 As one court cogently observed, [l]egal compensation for personal injuries does not actually compensate. Not many people would sell an arm for the average or even the maximum amount that juries award for loss of an arm. 7 In fact, because injured parties are never truly made whole by money damages, many critics of insurer-based subrogation have argued that the practice actually amounts to a windfall for the insurer, which gets to keep the premiums it received N.Y.S. 1024, 1027 (N.Y. App. Div. 1913). 6 Roger M. Baron, Subrogation: A Pandora s Box Awaiting Closure, 41 S.D. L. Rev. 237, 241 (1996). 7 See Hudson v. Lazarus, 217 F.2d 344, 346 (D.C. Cir. 1954). and get reimbursed for benefits paid. 8 Additionally, courts viewed the likelihood that an injury victim would obtain a double recovery as marginal. 9 In the property insurance setting, the certainty of an insured s actual loss meant that a victim could routinely expect to obtain a full recovery. By contrast, the indefiniteness of a personal injury victim s loss, among other factors, leads to a recovery that is almost always less than the full amount of damages. 10 Nevertheless, as World War II came to a close, medical insurance had become a profitable and commonplace product. Insurers began to systematically include subrogation clauses in their insurance agreements, and, in turn, aggressively pursued recovery for advanced medical expenses under a subrogation or reimbursement theory. 11 Historical Criticism of Subrogation Courts were initially dismissive of these efforts, routinely rejecting insurers claims for subrogation on the basis that equitable principles limit or outright prohibit any attempt 8 See, e.g., Roger M. Baron, Subrogation: A Pandora s Box Awaiting Closure, 41 S.D. L. Rev. 237, 242 (1996) (concluding that the double recovery rationale is flawed and proven to be duplicitous because, in most cases, the insurer who asserts that the insured will receive an unwarranted double recovery is itself picking up a windfall recovery if subrogation is permitted ). 9 See, e.g., Frost v. Porter Leasing Corp., 436 N.E.2d 387, 391 (Mass. 1982) (holding that, for an injury victim, duplicative compensation is both uncertain and unlikely ). 10 See id.; see also Allstate Ins. Co. v. Reitler, 628 P.2d 667, 670 (Mont. 1981) (discussing factors that limit recovery in the personal injury setting); Philip G. Peters, Jr., What Do We Know About Malpractice Settlements, 92 Iowa L. Rev. 1783, 1803 (2007) (explaining that empirical data indicate that the plaintiffs who receive a settlement are unlikely to recover the full amount of their damages ). 11 See Brendan S. Maher & Radha A. Pathak, Understanding and Problematizing Contractual Tort Subrogation, 40 Loy. U. Chi. L.J. 49, 73 (2008)

9 to recover from an injured insured. 12 But a key turn came when the insurers began repackaging their claims as based not on equitable grounds, but as rooted in freedom of contract. They found they could convince courts that the enforcement of a contract should trump any traditional equitable limitations. 13 This shift, as recent scholarship has demonstrated, was the linchpin in the birth of these types of actions. 14 Scholars and commentators (not to mention a majority of states), in near universal terms, criticize the practice of insurance subrogation as both inequitable and producing perverse consequences for settlement and tort law. Yet the industry is now a $1 billion a year profit center for ERISA insurance plans alone. 15 In some cases, victims have even been rendered unable to care for themselves and their families because the plan s reimbursement action stripped them of any means of support. 16 The highest profile example of what is now de rigueur for health insurance plans is in Admin. Comm. of Wal-Mart Stores, Inc. Associations Health and Welfare Plan v. Shank. 17 Wal-Mart s ERISA Plan pursued reimbursement against one of its beneficiaries who was paralyzed and brain damaged 12 See, e.g., Maxwell v. Allstate Ins. Co., 728 P.2d 812, 815 (Nev. 1986); Garrity v. Rural Mut. Ins. Co., 253 N.W.2d 512, (Wis. 1977); Blue Cross v. O Donnell, 230 So. 2d 706 (Fla. Dist. Ct. App. 1970). 13 See Maher & Pathak, Understanding Tort Subrogation, 40 Loy. U. Chi. L.J. at Id. at See Maher & Pathak, Understanding Tort Subrogation, 40 Loy. U. Chi. L.J. at 77 n.133, Id.; see also Vanessa Fuhrmans, Accident Victims Face Grab for Legal Winnings, Wall St. J., Nov. 20, 2007, at A1 (detailing the plight of several injured beneficiaries suffering this consequence as a result of their ERISA insurance Plans pursuit of subrogation) F.3d 834 (8th Cir. 2007) in a car accident. The Plan was awarded all of the money it had paid to cover Deborah Shank s medical expenses (approximately $470,000). Ms. Shank was left with nothing from the tort recovery. This meant that her family was left to rely on Medicaid and Social Security payments to keep up her round-the-clock care. 18 The financial burden was shifted to the taxpayers Washington Summary of Subrogation from Mahler The Washington Supreme Court in Mahler v. Szucs 19 took the opportunity to set forth in detail basic principles of subrogation. While the discussion was expansive, it was at the same time succinct in explaining this area of the law for Washington residents. Thus, I will quote the opinion at length: Subrogation is an equitable doctrine the essential purpose of which is to provide for a proper allocation of payment responsibility. It seeks to impose ultimate responsibility for a wrong or loss on the party who, in equity and good conscience, ought to bear it. RONALD C. HORN, SUBROGATION IN INSURANCE THEORY AND PRACTICE 3 (1964). Two law review commentators have referred to this allocation rationale stemming from the moralistic basis of tort law as it has developed in our system. Spencer L. Kimball & Don A. Davis, The Extension of Insurance Subrogation, 60 MICH. L. REV. 841, 841 (1962). The general purpose of subrogation is 18 See Vanessa Fuhrmans, Accident Victims Face Grab for Legal Winnings, Wall St. J., Nov. 20, 2007, at A Wn.2d 398, 957 P.2d 632 (1998)

10 to facilitate placement of the financial consequences of loss on the party primarily responsible in law for such loss. HORN, supra, at 24. Subrogation has existed in civil law longer than in common law. HENRY N. SHELDON, SUBROGATION 3 (2d ed. 1893); James Morfit Mullen, The Equitable Doctrine of Subrogation, 3 MD. L. REV. 201, 201 (1939). It applies in cases involving multiple claims upon the same property, suretyship, joint debtors, parties to bills and notes, the administration of estates, and contracts of insurance. Subrogation is favored in Washington law. Subrogation is always liberally allowed in the interests of justice and equity. J.D. O Malley & Co. v. Lewis, 176 Wash. 194, 201, 28 P.2d 283 (1934).... By virtue of payments made to a subrogor stemming from the actions of a third party, a subrogee has a right of reimbursement under general subrogation principles. That reimbursement may be enforced as a type of lien against any recovery the subrogor secures from the third party. Alternatively, the subrogee, standing in the shoes of its subrogor, may pursue an action in the subrogor s name against the third party to enforce the reimbursement right. In the insurance context, the doctrine of subrogation enables an insurer that has paid an insured s loss pursuant to a policy... to recoup the payment from the party responsible for the loss. Elaine M. Rinaldi, Apportionment of Recovery Between Insured and Insurer in a Subrogation Case, 29 TORT & INS. L. J. 803, 803 (1994).... It has been only in the last 30 to 40 years that subrogation disputes regarding personal injury cases have arisen. During this period, subrogation clauses have been inserted in first party medical payments coverage in automobile policies, uninsured and underinsured motorist coverage, and medical and hospitalization coverage. Roger M. Baron, Subrogation on Medical Expense Claims: The Double Recovery Myth and the Feasibility of Anti-Subrogation Laws, 96 DICK. L. REV. 581, 583 (1992). In the personal injury context, where insureds may wish to pursue claims for noneconomic damages, i.e., pain and suffering, disputes regarding the right to subrogation have proliferated. Until 1958 the subrogation clauses that were included in the standard forms for automobile insurance specifically were not applicable to medical payments coverages. ROBERT E. KEETON & ALAN I. WIDISS, INSURANCE LAW 228 (1988). Automobile medical payments coverage is of comparatively recent origin. It was conceived and reared without benefit of subrogation, and only during the past few years have some automobile insurers undertaken to wrap it in a mantle of subrogation. Travelers Indem. Co. v Chumbley, 394 S.W. 2d 418, 425, 19 A.L.R.3d 1043 (Mo. App. 1965)

11 The complexities are readily apparent. By contrast with a property loss case, where the damages are all economic and usually readily determinable, so that the insured can be made whole by the payment of money, in a personal injury case, the claimed noneconomic damages typically amount to many multiples of the economic damages and are almost always disputed because they are not objectively ascertainable. Thus, rather than stepping aside and allowing the insurer to pursue the tortfeasor by means of subrogation for the money it paid its insured, the injured insured will often sue the tortfeasor to recover noneconomic damages, and include in the claim the medical expenses and other special damages he or she has incurred as a result of the injury. In effect, the injured insured does not abandon its shoes, and its insurer thus has no shoes to step into to pursue subrogation. The potential for conflict of interest abounds in such circumstances. Both insurer and insured, having entered into an insurance contract, are bound by the common law duty of good faith and fair dealing, as well as the statutory duty to practice honesty and equity in all insurance matters. RCW We have said the statute creates a fiduciary duty for insurers running to their insureds. Industrial Indem. Co. of the Northwest, Inc. v. Kallevig, 114 Wn.2d 907, , 792 P.2d 520 (1990). Yet the injured insured seeks recovery from the tortfeasor, the same source to which the insurer may look to recover its payments to its insured. Most jurisdictions, however, now allow subrogation. J. A. Beck, Annotation, Subrogation Rights of Insurer Under Medical Payments Provision of Automobile Insurance Policy, 19 A.L.R.3d Subrogation is Equitable To Prevent Unjust Enrichment and To Do Justice For my purposes here, subrogation is being discussed in a medical payments insurance context. It may take the form of health care insurance, PIP insurance, ERISA plans, DSHS administration of Medicaid benefits, Medicare or any other plan that pays medical expenses. It may evolve from the common law, from legislation or from contract, but it is importantly recognized as an equitable doctrine. 21 Any insurance policy that creates a right of subrogation parallels the equitable right. 22 Subrogation is a corollary of the more general principle that unjust enrichment should not be allowed; unjust enrichment is what the principle of subrogation is intended to prevent. 23 The doctrine seeks to impose ultimate responsibility for a loss on the party who in equity and good conscience, ought to bear it. 24 The courts will protect subrogation rights only when justice so requires Mahler at Thiringer v. American Motors Ins. Co., 91 Wn.2d 215, 220, 588 P.2d 191 (1978). 22 Johnny s Seafood Co. v. City of Tacoma, 73 Wn. App. 415, 421, 869 P.2d 1097 (1994). 23 Johnny s Seafood Co., supra. 24 Mahler, supra at Winters v. State Farm Mut. Auto Ins. Co., 144 Wn.2d 869, 875, 31 P.3d 1164 (2001)

12 I Don t See Anything Wrong with a Double Recovery This entire concept of allowing subrogation to prevent a double recovery has long troubled me. What does it matter if the insured does receive a double recovery? The insured paid an insurance premium for these insurance benefits. They may have paid those premiums for a long time without having ever before received any benefits. The principles of subrogation do not require that insureds be reimbursed for their premium payments. It seems like it is the insurer who is receiving the double recovery. They collect the premium for providing the insurance coverage, but they are also repaid the very payments they were required to pay under the terms of the insurance policy. By any definition used, this is certainly a windfall. My clients constantly pose these questions to me. They don t understand the logic of the law in this regard, and rightfully so. This confusion is not limited to my clients. It is consistent with the common person s view of insurance. Is this an area where the law is an ass? ( The law is an ass originates in Charles Dickens Oliver Twist, when Mr. Bumble is informed that the law supposes that your wife acts under your direction and Mr. Bumble responds, If the law supposes that, the law is an ass, an idiot. ) Further, the collateral source rule says that a tortfeasor cannot take advantage of the fact that its victim paid insurance premiums to assure medical care and thereby pay less than the actual damages incurred. Why should the insured victim be limited to the same total recovery that the non-insured victim would receive? The insured is not gaining a double recovery, but is simply recovering on a contract for which a premium has been paid. 26 In fact the insured is worse off because he or she gets the same recovery as the non-insured victim, but is out the premium paid. If the contract is for life insurance, subrogation is not enforced against a wrongful death award. The entire concept is troubling. Insurers Do Not Reduce Premiums Based on Subrogation Recovery In the conflict between the insurer, who claims that without a right of subrogation the insured receives a double recovery, and the insured who claims that, with a right of subrogation the insurer receives a windfall, the issue should be resolved on the basis for the premium paid. Does the premium charged reflect the subrogation collected? In fact, insurers consistently fail or refuse to introduce the factor of subrogation recoveries into determining rates charged, and instead simply apply these recoveries to excessive CEO salaries and increased dividends to shareholders. 27 Seldom Is There a True Double Recovery in Personal Injury Litigation Another reason that the justification for subrogation of avoiding a double recovery is invalid stems from the fact that most personal injury cases are settled for less than a 26 See, e.g., Allstate v. Reitler Ins. Co., 628 P.2d 667 (Mont. 1981); Allstate Ins. Co. v. Druke, 576 P.2d 489, 492 (Ariz. 1998). 27 John F. Dobbyn, Insurance Law in a Nutshell, 284 (3d ed. West 1996). See also, Roger M. Baron and Delia M. Druley, ERISA Reimbursement Proceeds: Where does the money go?, Minnesota Trial, Spring

13 full recovery. Setting aside issues of lack of sufficient liability insurance coverage, claims of comparative negligence, risks and costs of litigation, and the difficulty of accurately evaluating non-economic elements of a personal injury claim, settlement by definition generally involves a compromise. Each side in the tort action gives up something for the certainty from a settlement. As a result, whether or not there is a double recovery in fact is elusive. It really cannot be proven without a full trial of each tort case. Subrogation Creates Collateral Issues Another problem with subrogation is the adverse impact it has on tort litigation in general. It raises collateral issues that impede the litigation process. This list, certainly not exhaustive, gives just a few examples of adverse impacts routinely encountered in tort litigation from subrogation. 1. Health insurers delay or refuse to pay benefits in hopes that the tortfeasor s insurer will pay the bills; 2. Insurers seek to intervene in tort actions to protect their subrogation interests; 3. Insurers seek written guarantees from the insureds and/or personal injury counsel to guarantee their rights of subrogation; 4. Insurers attempt to contract with personal injury counsel to represent the insurer s interest, thereby setting up conflicts of interest for counsel; 5. Insurers threaten to refuse to cover future medical expenses unless they are given written guarantees of subrogation rights. There is federal case law finding it unlawful in some cases to require a beneficiary to execute a subrogation agreement as a condition to processing and paying ongoing medical bills. See Burgatt v. MEBA Medical and Benefits Plan, 2007 WL (E.D. Tex. 2007). See also ACS/PRIMAX v. Polan, 2008 WL (W.D. Pa. 2008); Sheet Metal Workers Local 27 Health & Welfare Fund v. Beenick, 2008 WL , slip op. (D.N.J. Dec 9, 2008); 6. Subrogation administrators demand constant reports regarding the status of the tort action; 7. Insurers claiming subrogation rights delay or fail to timely provide information to support claims; 8. Tortfeasors insurers demand hold-harmless agreements and other forms of indemnity from subrogation claims; 9. Tortfeasors insurers insist on subrogation insurers being named on settlement checks; 10. Medicare, Labor and Industries and ERISA Plans will take months and sometimes years to respond to inquiries to determine subrogation numbers and thereby delay disbursement of settlement funds. I have been waiting for nine months for a response from Labor and Industries on one case

14 11. Personal injury counsel refuse to claim damages for items subject to subrogation, thereby increasing litigation in the courts. In short, despite my personal objections and constant questions, subrogation seems here to stay. So, how do we deal with it? WASHINGTON COMMON LAW The Made Whole Rule of Thiringer No insurance company that has paid the medical bills of its insured in Washington has a right to subrogation unless the injured person has first been fully compensated for his or her injuries. This rule is known as the made whole rule or last dollar theory of subrogation. It is based on Washington s public policy in favor of full compensation for injured persons. Washington law places great emphasis on the just compensation of accident victims. 28 The seminal case establishing this law is Thiringer v. American Motors Ins. Co. 29 The general rule is that, while an insurer is entitled to be reimbursed to the extent that its insured recovers payment for the damage, it can recover only the excess which the insured has received from the wrongdoer, remaining after the insured is fully compensated for his loss. 28 Jain v. State Farm Mut. Auto Ins. Co., 130 Wn.2d 688, 693, 926 P.2d 923 (1996) Wn.2d 215, 588 P.2d 191 (1978). This rule embodies a policy deemed socially desirable in this state, in that it fosters the adequate indemnification of innocent automobile accident victims. 30 Because the rule is based on public policy, an insurance company cannot place contract language into its policies to circumvent the made whole rule. In commenting on the insurance policy language in the American Motors Insurance Company policy, the court stated: It does not provide that if the insured recovers less than his total damages from such party, the amount recovered shall be allocated first to those losses covered by the PIP endorsement and then to other damages suffered by the insured. Such a provision, were it included, would be obviously unfair, since the insured pays a premium for the PIP coverage and has a right to expect that the payments promised under coverage will be available to him if the amount he is able to recover from other sources, after diligent effort, is less than his general damages. 31 You Cannot Prejudice the Insurer s Rights To be sure, the tort victim cannot prejudice the subrogation rights of the insurer. In Metropolitan Life Ins. Co. v. Ritz, 32 the insured entered into a complete release of all claims against the tortfeasor without specifically referencing the insurer s interest. The court found that the general release 30 Thiringer at Thiringer at Wn.2d 317, 422 P.2d 780 (1967)

15 deprived the insurer of its subrogation rights and noted that the insurer was entitled to either reimbursement from the insured or to be subrogated to the insured s claim for the medical expenses against the tortfeasor. The court then allowed the reimbursement, subject to the obligations to share proportionately in the expenses to obtain the settlement. Conversely, in Leader Nat l Ins. Co. v. Torres 33, both the insured and the tortfeasor were aware of the insurer s subrogation right and the insurer did not consent to the settlement. Because the tortfeasor had additional assets, the court held that the settlement did not extinguish the insurer s subrogation rights against the tortfeasor. Of interest is that the court held that the risk of loss in this context was to be borne by the tortfeasor, not the insured. Insurance Commissioner As a result of the Thiringer decision, the Washington State Insurance Commissioner adopted rules which incorporate the Thiringer Made Whole Rule. Recently, the Insurance Commissioner adopted WAC which requires an insurer to include the insured s deductible in any subrogation demand, and then any recovery must first be allocated to the insured for any deductibles incurred in the loss Wn.2d 366, 779 P.2d 722 (1989). A Case Example Homewood Our firm handled the case of British Columbia Ministry of Health v. Homewood 34. In that case we had settled the claim of Ms. Homewood against several different defendants. While we obtained all of the liability coverage of the one defendant who was primarily at fault, we settled for less than all of the liability coverage of two other defendants because of liability risks and claims of comparative negligence. The health insurer claimed there had been a full recovery. The court found, based on the evidence we presented, that there had not been a full recovery and so Ms. Homewood was not made whole. The health insurer then claimed it had been prejudiced by the settlements. The court, citing Elovich v. Nationwide Insurance Co., 35 reiterated that in order to prove it was prejudiced by the settlement, the insurer has the burden of proof that the settlement was less than the amount of the tortfeasor s fault times the injured person s total damages: In other words, to establish prejudice [the insurer] must show (1) the percentage of negligence of [each of the three tortfeasors]; (2) the total losses the plaintiff suffered; (3) that the settlement as a percentage of plaintiff s total injuries was less than the percentage of the settling entities comparative negligence. Only if the latter percentage exceeds the former will [the insurer s] subrogation rights have been prejudiced and Lou apply. Otherwise the rule from Thiringer applies: the insurance company s subrogation rights arise only Wn.App. 702, 970 P.2d 381 (1999) Wn.2d 543, 707 P.2d 1319 (1985)

16 after the plaintiffs have received full compensation for their injuries. 36 You Need an Expert to Prove Your Client Was Not Made Whole In Homewood, the insurer did not meet its burden to prove that the plaintiff was made whole. That burden was placed squarely on the insurer. 37 I have tried three subrogation cases to verdict and each time the insurer has failed to meet that burden. In fact, each time the insurer has insisted that all it needed to show was that less than policy limits had been accepted. Thus, my evidence that the plaintiff had not been made whole was essentially uncontested. These insurers are incorrect that acceptance of less than liability policy limits meets the burden of proving that the plaintiff was made whole. To prove that my client had not been made whole in all three trials, I hired an experienced personal injury lawyer to act as an expert witness and render an opinion that under the facts of each case the plaintiff was not made whole. The expert considered all liability and all damage evidence in the tort action, and then opined that the plaintiff was not made whole for various reasons, usually that liability facts forced a settlement for less than full value of the case. Liberty Mutual v. Tripp, 38 laid this issue to rest, ruling specifically that there is no presumption of full compensation or prejudice to the insurer simply because a plaintiff settles for less than policy limits. In Tripp, the plaintiff settled for 36 Homewood at Brown v. Snohomish Co. Phys. Corp., 120 Wn.2d 747, 759, 845 P.2d 334 (1993) Wn.2d 1, 25 P.3d 997 (2001). $35,000 out of a $50,000 policy. The court held that it was a question of fact whether the plaintiff had been fully compensated. A troubling decision came out of Division I of the Court of Appeals of Washington in Truong v. Allstate Property and Casualty Insurance Company. 39 While the case is certainly fact specific, it demonstrates the potential problems that arise in proving that a settlement did not make the victim whole. The case involved liability limits of $25,000. The case was settled for $9, The court stated that Allstate set forth facts showing that Truong accepted an arms-length settlement for less than policy limits. The adjuster in fact testified that she thought she was paying the claim based on 100% liability. In response, Truong submitted evidence that Allstate and PEMCO adjusters had agreed on the property damage based on 50% fault for each driver. Truong presented a two-paragraph expert opinion by an attorney that the settlement represented a compromise and that Truong was not made whole. The court found the expert s opinion entirely conclusory and unsupported by reference to specific facts and so disregarded it. The court found that the settlement itself was some evidence, even if not irrefutable evidence, that the settlement fully compensated Truong. 40 Finding that Truong did not meet his burden of rebutting the evidence by the insurer, the court found Truong was made whole and Wn.App. 195, 211 P.3d 430 (2009). 40 Truong at

17 allowed the reimbursement claim. This underscores the need to have an expert opinion that relies on specific facts of the case to establish that the plaintiff was not made whole. In Peterson v. Safeco Ins. Co. of Illinois, 41 the plaintiff argued that since attorney fees had to be paid in order to obtain the tort recovery, plaintiffs could never be made whole. The court sided with the insurer and rejected the argument. When Do Insurers Have to Pay Attorney Fees & Costs? After Thiringer established the Made Whole Rule, case law began developing regarding the determination of the specific amount of any reimbursement. The issue was what share of the legal fees and costs should the insurer seeking subrogation/reimbursement be responsible to pay? First, some necessary background. People purchase PIP coverage to cover the immediate costs of a motor vehicle accident, such as medical expenses and loss of income; people purchase UIM coverage against the very real possibility that they will be injured by a motorist who has insufficient insurance to pay a judgment. 42 A separate premium is charged by the insurer for each of these coverages. The UIM coverage is fault-based; the PIP medical and wage loss are not fault-based and are similar to no-fault insurance in other states. When one pursues a UIM claim, the insurer is said to stand in the shoes of the tortfesasor. Thus, payments made by the UIM carrier are treated as if they were made by the Wn.App. 254, 976 P.2d 632 (1999). 42 See RCW (UIM); RCW (PIP). tortfeasor. 43 Accordingly, the UIM carrier is entitled to setoff the amount of any tortfeasor recovery from the amount owing under the claim. 44 UIM coverage becomes a second floating layer of coverage over and above the liability coverage to provide protection in every case in which the insured is legally entitled to recover damages from the negligent tortfeasor. 45 Because the UIM insurer stands in the shoes of the uninsured tortfeasor, the claimant insured likewise bears his or her own attorney fees. But PIP carriers, who as a matter of course seek subrogation/ reimbursement from tort recoveries, stand in a different position. PIP carriers provide benefits to cover the insured s immediate needs. When they seek reimbursement from their insured who has been made whole from a third-party tort claim, what is the insurer s responsibility for paying the legal expenses of recovery? The seminal case of Mahler v. Szucs 46 answers this question. In Mahler the tortfeasor was fully insured and the injured party was made whole. Thus, subrogation/reimbursement was allowed. The court ruled, however, that the victim s PIP carrier seeking reimbursement from the fund created by the insured must pay a pro rata share of the legal expenses the insured incurred in order to recover from the tortfeasor. 47 As explained in Mahler: This equitable sharing rule is based on the common fund doctrine, which, as an exception to the 43 Britton v. Safeco Ins. Co. of Am., 104 Wn.2d 518, 529, 707 P.2d 125 (1985). 44 Hamilton v. Farmers Ins. Co. of Wash., 107 Wn.2d 721, 728, 733 P.2d 213 (1987). 45 Tissell v. Liberty Mut. Ins. Co., 115 Wn.2d 107, 120, 795 P.2d 126 (1990) Wn.2d 398, 957 P.2d 632, 966 P.2d 305 (1998). 47 Mahler at

18 American Rule on fees in civil cases, applies to cases where litigants preserve or create a common fund for the benefit of others as well as themselves. 48 The common fund in Mahler consisted of the recovery the insured obtained from the tortfeasor only. From this fund, the insured was compensated and the PIP carrier was reimbursed. Because the PIP carrier reimbursed itself from a fund that the insured created, the PIP carrier was obligated to pay a pro rata share of the legal expenses incurred by the insured to create the fund. 49 Next came Winters v. State Farm Mutual Automobile Insurance Co. 50 In Winters, the insured was injured by an underinsured tortfeasor. Her immediate medical expenses were covered by her own PIP carrier. Winters then sought recovery from the tortfeasor and recovered the maximum limits of the tortfeasor s liability coverage. Because the tortfeasor recovery did not fully compensate her, she also pursued a UIM claim. Unlike the insured in Mahler, Winters was not fully compensated until she recovered from both the tortfeasor and her UIM carrier. Once she was fully compensated, her PIP carrier was able to seek reimbursement for the PIP benefits it paid, subject to its obligation to pay a pro rata share of the legal expenses incurred by Winters in creating the fund. 51 As explained in Winters, [t]hese pooled funds became the common fund from which the PIP insurer was able to recoup payments it had made. 52 Winters clarified 48 Id. at Id. at Wn.2d 869, 31 P.3d 1164, 63 P.3d 764 (2001). 51 Winters at Id. that the pro rata sharing rule articulated in Mahler is based on equitable principles, not specific policy language, and applies to PIP reimbursements from UIM recoveries as well as from tortfeasor recoveries. 53 In cases like Winters, where PIP coverage and UIM coverage are provided by the same insurance carrier, the reimbursement to the PIP carrier typically comes in the form of an offset applied to the UIM obligation. Even though the offset appears to result in a reduction to the UIM obligation, the offset functions as a mechanism to account for the PIP reimbursement and is available only when the same insurance carrier provides both PIP and UIM coverage. 54 In cases where the PIP and UIM carriers are separate companies, the PIP carrier remains entitled to receive actual reimbursement, and the UIM carrier remains obligated to pay the entire amount of the UIM award. In such cases, no opportunity for an offset exists. In fact numerous cases have held that a provision in an insurance policy that allows an offset for PIP payments made by another insurer is not enforceable because it is against public policy. 55 When the PIP and UIM carrier is the same, however, and the injured party paid for the coverage, an offset against the UIM obligation is an acceptable mechanism to account for the PIP reimbursement rights Winters at , See Keenan v. Industrial Indemnity Ins. Co. of NW, 108 Wn.2d 314, 738 P.2d 270 (1987). 55 Schlener v. Allstate Insurance Company, 121 Wn.App. 384, 88 P.3d 993 (2004). 56 Mahler at 436. ( Provided the insurer recognizes the public policy in Washington of full compensation of insureds and its other duties to insureds by statute, regulation, or common law, the insurer may establish its right to reimbursement and the mechanism for its enforcement by its contract with the insured. ) 34 35

19 Next came Hamm v. State Farm Mutual Automobile Insurance Co. 57 There the court extended the rule announced in Mahler and Winters to cases where the insured recovers only from a UIM carrier. The rule from Mahler, Winters and Hamm all involve the PIP and UIM coverage that is owned by the injured party. The rule is said to be different if the coverage is from policies owned by the tortfeasor. In Matsyuk v. State Farm Fire & Casualty Co., 58 Matsyuk was riding as a passenger in the Stremditsky car. Stremditsky caused an accident injuring Matsyuk. Matsyuk recovered under both the Stremditsky PIP and liability coverages. Citing Young v. Teti, 59 the court denied a request for Mahler fees. Because Matsyuk was not a State Farm insured, but instead a third-party beneficiary, it was said she did not create a common fund. Further, the opinion claims her suit did not benefit State Farm. State Farm had no contractual right of reimbursement from Matsyuk s recovery fund for the PIP payments it made. The court ruled that Matsyuk did not purchase any coverages and obtained a full recovery. The offset taken functioned simply to prevent Matsyuk from receiving a double recovery. The same analysis has been applied if a pedestrian or bicyclist is struck by a motor vehicle. 60 The pedestrian or bicyclist is covered by the PIP coverage on the covered Wn.2d 303, 88 P.3d 395 (2004) Wn.App. 324, 229 P.3d 893 (2010), review granted, 170 Wn.2d 1008 (2010) Wn.App. 721, 16 P.3d 1275 (2001). 60 Weismann v. Safeco Ins. Co. of Illinois, 157 Wn.App. 168, 236 P.3d 240 (2010), review granted, 170 Wn.2d 1010 (2010). vehicle. 61 Subsequent liability on the driver of the vehicle would allow an offset for the PIP paid by the carrier. But as in Matsyuk, 62 it has been ruled that this would not result in creating a liability for Mahler fees. The injured plaintiff received PIP payments, not from her own insurer, but from the tortfeasor s insurer. Thus, when the injured plaintiff sued the driver and recovered, she did not create a fund to benefit, or to reimburse, anyone other than herself. The Supreme Court has granted review in both Matsyuk and Weismann. The reliance on Young, 63 seems wrong in light of the decision in Hamm. PIP and liability are two separate coverages. The PIP coverage is the responsibility of the insurer because passengers and pedestrians are insureds under the policy. RCW (5)(b). They are third-party beneficiaries of the PIP coverage. 64 The PIP payments are not made on behalf of the tortfeasor. On the other hand, the liability payments are made on behalf of the tortfeasor, just like the UIM payments made in Hamm. I expect the Supreme Court to reverse Matsyuk and Weisman and provide for Mahler fees in this scenario. I have often heard inquiries about whether an insurer owes Hamm and Winters fees if the insurer has made PIP payments and paid UIM limits. (I confused myself on this issue in one case.) The answer is no. The payment of the UIM limits seems to concede that there has not been a full recovery. Since your client has not been made whole, the PIP carrier 61 RCW (5)(b)(ii) Wn.App. 324, 229 P.3d 893 (2010), review granted, 170 Wn.2d 1008 (2010) Wn.App. 721, 16 P.3d 1275 (2001). 64 Maziarski v. Bair, 83 Wn.App. 835, 924 P.2d 409 (1996)

20 is not entitled to any subrogation. Without any subrogation rights, you have not created any benefit for the insurer. Stated another way, if the settlement is for less than the UIM limits, the insurer is taking advantage of the offset so you have created a benefit for the insurer and you are entitled to the Hamm and Winters fees. This creates the anomaly where the insurer may be better off paying the UIM limits than negotiating for something less than limits, because of the liability it will create on itself for paying its share of attorney fees. Practice Tip No. 1 With the interplay between UIM and PIP coverages and the mixture of Hamm and Winters fees, we now see insurance adjusters in negotiations holding UIM funds hostage in exchange for waiver of the PIP and Hamm and Winters fees. Under WAC an insurer may not delay settling a claim under one portion of the insurance policy in order to influence settlement under another portion of the policy. You must aggressively oppose such a tactic. Practice Tip No. 2 Always negotiate with UIM adjusters in terms of gross offer figures. UIM adjusters often try to negotiate in new money terms. Later they claim that they have waived PIP and so you have recovered nothing for them so that they don t have to pay Hamm and Winters fees. Remember, medical expenses are part of the UIM claim for which they are entitled to a PIP offset and therefore, obligated to pay Hamm and Winters fees. Comparative Negligence Establishes the Client Was Not Made Whole The next issue was the impact of comparative negligence on the subrogation/reimbursement claim. The court dealt with this in Sherry v. Financial Indemnity Company. 65 The court ruled that an insurer is entitled to reduce a UIM award by previously paid PIP benefits only when its insureds are fully compensated for their actual damages, without reduction to account for the insured s fault. 66 Importantly, the Sherry court reiterated that Washington s jurisprudence relating to UIM and PIP insurance is based largely on public policy, and where subrogation-like concepts are involved, equitable principles. 67 The court said that insureds are not fully compensated, as required by Thiringer, until they have recovered all of their damages as a result of a motor vehicle accident. 68 To rule otherwise would result in insurers seeking to reduce PIP medical insurance because of fault Wn.2d 611, 160 P.3d 31 (2007). 66 Sherry at Sherry at Sherry at Sherry at

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