Download or read book Workers Compensation Subrogation In All 50 States Fifth Edition written by Gary L. Wickert and published by Juris Publishing, Inc.. This book was released on 2012-04-01 with total page 1616 pages. Available in PDF, EPUB and Kindle. Book excerpt: Workers' compensation subrogation continues to change and adapt, as trial lawyers prod its weak points and capitalize on confusing areas of the law. There have been numerous changes in workers' compensation statutes and case law in many states since the last edition. This edition includes an exhausting survey and detailed explanation of the crazy status of employer contribution in Illinois, which includes a step-by-step exposition of how contractual indemnity and the "Kotecki cap" play a role in expanded employer liability in Illinois workers' compensation subrogation cases. It covers the many nuances of Naig and Reverse-Naig settlements under Minnesota law, including an analysis of who has what burdens of proof and the effect such a settlement has on the remaining third-party case tried to a jury. In light of the landmark Missouri Court of Appeals decision in Robinson v. Hooker, the liability of co-employees in Missouri and surrounding states have been covered in greater detail. The concept of co-employee liability for acts which are intentional or committed outside of the course and scope of employment has been added in several states. New case law and explanations were added to the Texas chapter with regard to subrogating against UM/UIM policies, including arguments with regard to the efficacy of UM/UIM exclusionary policy language and the ability to subrogate against a UM/UIM policy actually issued by the same carrier insuring for workers' compensation coverage. West Virginia completely revised their subrogation statute and created a new statute relating to the "statutory employer" status of primary contractors and subcontractors on construction sites, limiting when and how primary contractors can become legitimate third parties for purposes of subrogation. Chapter 7, "Contractual Limitations to Subrogation" has been completely overhauled to include new statutes and case law for every state to assist practitioners in determining the law applicable when there is an alleged applicable waiver of subrogation which might otherwise destroy subrogation. A new Chapter 12 has been added, which focuses on jurisdiction of workers' compensation third-party actions taking a broad look at 28 U.S.C. § 1441, which prohibits removal of cases "arising under" state workers' compensation laws. A carrier now has the ability to prevent cases from being removed from favorable venues in state court to less favorable federal court venues - an attractive option for plaintiffs' attorneys with whom subrogated carriers can negotiate with for stipulations and concessions on their subrogation interests in exchange for maintaining a case in state court. This edition also expands on which states do and do not hold workers' compensation to be primary. Combined with more than 100 new case decisions, this Fifth Edition is the most complete and up-to-date edition yet. Workers' Compensation Subrogation is the most complete and thorough treatise covering workers' compensation subrogation ever published. There are very few areas in which the laws of each state vary more and are applied as differently, then in the area of workers' compensation subrogation. This book is intended to introduce the workers' compensation claims handler, in-house counsel, and subrogation professionals to some of the more esoteric and complex subrogation issues encountered in today's workers' compensation insurance subrogation marketplace. It covers the following issues in all 50 states: • Allocating Third Party Recoveries • Attorney's Fees • Borrowed Servant Doctrine • Conversion of Workers' Compensation Liens • Costs and Expenses • Dual Capacity Doctrine • Equitable Subrogation/Contribution • Exclusivity Rule Barring Action Against Employer • How To Calculate Your Credit/Advance and How It Is Applied In Each State • Intentional Acts • Joint Ventures • Made Whole Doctrine As Applied To Workers' Compensation Subrogation • Necessity of Intervention • Lien Reduction Statutes • Staff Leasing Services and Temporary Employment Agencies • Statutory Subrogation Rights • Subrogating Against UM/UIM Benefits • Subrogating In Medical Malpractice Cases • Subrogating In Legal Malpractice Cases • Waivers of Subrogation • Who Qualifies As A Third Party • Other Workers' Compensation Subrogation-Related Issues In addition to being an excellent primer on workers' compensation subrogation, suitable for both the new subrogation professional and the seasoned veteran, the book also contains a detailed synopsis of the workers' compensation subrogation laws in each of the 50 states. It is a must for anyone with multi-state subrogation responsibilities. Complete with diagrams, references and thousands of footnotes, this is the most ambitious workers' compensation subrogation project ever undertaken. The following issues and topics are covered in detail for each of the 50 states: Statutory Subrogation Rights • Identifies the statutory authority for workers' compensation subrogation in that state. • Discusses the purpose/legislative intent of the statute. • Is an election necessary by the worker? • Who can bring a third party action (plaintiff, carrier, employer, or all of the above)? • When and must a third party action be brought? • What are the rights of a carrier to intervene in an existing third party action filed by a worker? • Will a worker's compensation carrier's subrogation interest be barred if not brought timely? Third Parties • Who can be sued as third parties in a third party action? • Can a co-employee be sued and under what circumstances? • Can an uninsured/underinsured carrier be a "third party" under the laws of that state? • Is there a dual capacity or borrowed servant doctrine which somehow affects the ability of a worker's compensation carrier to effectively subrogate? • What is the state's workers' compensation bar? • Are there any specific restrictions regarding subrogation against a subcontractor or an employee of a subcontractor in a construction situation? • Under what circumstances can the employer be sued? • Can a carrier subrogate to the benefits of a recovery in a legal or medical malpractice action? Allocation of Third Party Recovery • How and when does the carrier recover its subrogated interest? • Does the carrier recover past benefits only or also the present value of future benefits which it owes under the Workers' Compensation Act of that state? • Is there a formula used to determine how a third party recovery is allocated? • What happens to the total recovery and how is it applied? • Can a carrier recover benefits paid by a third party or recovered in a third party action which relate to loss of consortium, or non-economic damages such as pain and suffering, mental anguish, or punitive damages? • Does the employer's negligence reduce the recovery by the worker or carrier? Attorneys' Fees/Costs • Can the plaintiff's attorney recover attorneys' fees and/or costs out of the carrier's subrogated recovery and under what circumstances? • How are attorneys' fees and costs handled if the carrier is also represented by subrogation counsel, intervenes into the third party action and actively represents its interest? • What if the carrier isn't represented? • Can a plaintiff's attorney recover attorneys' fees based on the value of past benefits only or will he be able to recover attorneys' fees based on the future benefits/credit recovered by the carrier? • Must a carrier bear its proportionate share of expenses as many states require, and what does that really mean? Credit/Advance • Can a carrier take a vacation from paying workers' compensation benefits once a worker makes a third party recovery? • How is the credit calculated under state law? • Does the carrier have to do anything special to obtain the credit, such as filing with the Workers' Compensation Commission? • Does the carrier get a credit toward future compensation benefits it owes or does it actually get to collect the present value of the future benefits it owes and still be obligated to pay the scheduled benefits in the future? Statutes of Limitation • What are the applicable statutes of limitation or statutes of repose that may be applicable to third party subrogation actions? Related Subrogation Issues • Are there any other issues or statutes which affect a worker's compensation carrier's right of subrogation, such as the made whole doctrine, common fund doctrine, or anti-subrogation statutes? • Are there any lien reduction statutes, such as those existing in Indiana, which affect a worker's compensation carrier's right of recovery? • Does the state have any no-fault laws which complicate workers' compensation subrogation involving an automobile accident, such as exist in Michigan and Colorado? • What are the carrier's options if the worker and his attorney simply refuse to repay a worker's compensation carrier's lien after settling a third party action? • If the worker fails to repay the carrier, is there a cause of action for conversion of a carrier's subrogation interest or may the carrier still proceed against the third party tortfeasor to recover its subrogation interest?

Download or read book Insurance Coverage Litigation written by Eugene R. Anderson and published by Wolters Kluwer. This book was released on 1999-01-01 with total page 2726 pages. Available in PDF, EPUB and Kindle. Book excerpt: The absence of persuasive precedents may prevent some attorneys from framing the effective policyholder arguments in insurance coverage litigation. With Insurance Coverage Litigation, Second Edition, youand’ll discover how the experts analyze the facts to win your next insurance coverage case. This unique resource provides comprehensive examination of the full range of issues shaping insurance coverage cases being heard in the courts todayand—including the publicly available, but hard-to-find industry and“loreand” that savvy insurance practitioners use to win complex insurance coverage cases. Whichever side you represent in the billion dollar insurance coverage field, this work contains vital information you canand’t afford to be without when preparing a case for state or federal court. Insurance Coverage Litigation supplies: Extensive analyses of case law on insurance coverage issues arising under general liability insurance policies. Sample CGL Policy Forms. The most in-depth discussion of the drafting history of standard-form general liability insurance policy languageand—including language derived from the insurance industryand’s own representations to the public, governmental agencies, courts and policyholdersand—one of the most powerful tools available to policyholders. Easy-reference tables and state-by-state summaries that help you quickly grasp and compare court interpretations on a broad range of issues including the reasonable expectation doctrine, trigger of coverage and allocation, notice of claim or action, and insurability of punitive damages. Cutting edge analysis and guidance on rapidly evolving areas such as environmental liability, intellectual property disputes, and“cyberand” losses and liability, terrorism coverage, and more.

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Download or read book ERISA and Health Insurance Subrogation in all 50 States 5th Edition written by Gary L. Wickert and published by Juris Publishing, Inc.. This book was released on 2013-01-01 with total page 1300 pages. Available in PDF, EPUB and Kindle. Book excerpt: ERISA and Health Insurance Subrogation In All 50 States is the most complete and thorough treatise covering the complex subject of ERISA and health insurance subrogation ever published. NEW TO THE FIFTH EDITION! • Updated To Include All The Newest Case Law! • Updated To Include Medicaid Subrogation and Preemption of FEHBA ! • New Plan Language Recommendations! • Complete Health Insurance Subrogation Laws In All 50 States • Covers The Application of ERISA In Every Federal Circuit The Fifth Edition of ERISA and Health Insurance Subrogation In All 50 States has been completely revised, edited, and reorganized. This was partly to reflect the new direction recent case decisions have taken regarding health insurance subrogation as well as the crystallization of formerly uncertain and nebulous areas of the law which have now received some clarity. An entirely new chapter entitled, “What Constitutes Other Appropriate Equitable Relief?” has been added and replaces the old Chapter 9, which merely dealt with Knudson and Sereboff. The new edition introduces new state court decisions addressing the issue of causation and whether and when a subrogated Plan seeking reimbursement must prove that the medical benefits it seeks to recover were causally related to the original negligence of the tortfeasor. An entirely new section was added concerning the subrogation and reimbursement rights of Medicare Advantage Plans, a statutorily-authorized Plan which provides the same benefits an individual is entitled to recover under Medicare. This includes recent case law which detrimentally affects the rights of such Plans to subrogate. Also added to the new edition is additional law and explanation regarding Medicaid subrogation, including the differentiation between “cost avoidance” and “pay and chase” when it comes to procedures for paying Medicaid claims. Significant improvements have been made to suggested Plan language which maximizes a Plan’s subrogation and reimbursement rights. The suggested language stems from recent decisions and developments in ERISA and health insurance subrogation from around the country since the last edition. The new edition has been completely reworked both in substance and organization. Recent case law has necessitated consolidation of several portions of the book and elimination or editing of others. A new section entitled “Liability of Plaintiff’s Counsel” has been added, which provides a clearer exposition on the laws applicable and remedies available when plaintiff’s attorneys and Plan beneficiaries settle their third-party cases and fail to reimburse the Plan. Also new to the book are recently-passed anti-subrogation measures such as Louisiana’s Senate Bill 169, § 1881, which states that no health insurer shall seek reimbursement from automobile Med Pay coverage without first obtaining the written consent of the insured. The new edition also goes into much greater detail on the procedures for and law underlying the practice of removal of cases from state court to federal court, and the possibility of remand back to state court. This includes the Federal Courts Jurisdiction and Venue Clarification Act of 2011, effective Jan. 6, 2012, which amended federal removal, venue, and citizenship determination statutes in very significant ways. The new edition also delves into, for the first time, the role which the federal Anti-Injunction Act plays when beneficiaries sue in state court to enforce the terms of an ERISA Plan, while the Plan files suit in federal court seeking an injunction against the state court action. New case law and discussion on preemption of FEHBA subrogation and reimbursement claims have been added to Chapter 10 in the wake of new decisions regarding same.

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