Presentation on theme: "Subrogation: Are you Leaving Money on the Table?"— Presentation transcript:
1 Subrogation: Are you Leaving Money on the Table? Presented by Jim GillSouthwest Risk Services /Berkley Risk Administrators
2 Work Comp Adjusters Are GREAT at Are less GREAT at Medical lingo “Forms” lingoCalculating stuffAre less GREAT atLiability/negligence determinationsBeing “plaintiff attorneys”!
3 The Basics of AZ Work Comp Subro TWO-year statute of limitations for negligence claims vs. private entitiesYear #1: Claimant has exclusive recovery rightsClaimant needs toSettle and pay the WC lienFile a lawsuitGet a reassignment form the WC carrier/self insuredYear #2: WC carrier/self insured has exclusive recovery rights if there was no settlement, suit or reassignment
4 The Basics of AZ Work Comp Subro ONE-year statute of limitations for negligence claims vs. public entitiesONLY if you file a statutorily compliant notice of claim within 180 days after date of loss/discovery of negligence-based damagesInjured worker and WC carrier/self insured’s rights against responsible third parties run concurrentlyUnless the injured worker settles/repays the WC lien, or gets a reassignment, or files suit, the WC carrier/self insured needs to file a notice of claim within 180 days and suit within one year
5 But If Someone Else’s Negligence Injured My Employee… …won’t THEY be the ones to figure that out?…won’t THEY be the ones to hire an attorney and pursue a claim (on which I can assert a lien)?
7 Comparative Fault AZ is a “pure comparative” state If a third party is even 1% at fault for injuring an employee, they pay 1% of the total damagesDON’T assume there’s no recovery potential just because your injured worker was “mostly” (maybe even 99%) at fault for causing his own injuries.Even 1% of what you’ll pay on a serious injury claim can be a big number!
8 Negligence Claims: What Do I Need To Prove? Duty owedDuty breachedProximate causeActual damages
10 Auto Claims: The “Low Hanging Fruit” Rear-end auto accidentsLeft turn accidentsFailure-to-yield accidentsOther vehicle ran a stop sign or red lightOther vehicle emerging from a private drive
11 Auto Claims: The “Higher Hanging Fruit” What if it looks like your employee caused the accident?Maybe he/she did…but were they really 100% at fault?What do witnesses say?What does the police report sayWhat do accident scene photos tell you?
12 Auto Claims: The “Higher Hanging Fruit”: Intersection Obstructions
13 Auto Claims: The “Higher Hanging Fruit”: Intersection Obstructions
14 Auto Claims: The “Higher Hanging Fruit”: Intersection Obstructions
15 Auto Claims: The “Higher Hanging Fruit”: Improper Signage/Barricades
17 Premises Claims If you’re on someone else’s property, you’re either An invitee/business inviteeInvited by the property owner, generally to benefit the owner (i.e., store customers)Owner has a duty to make the property reasonably safeA licenseeEnters property for his own purpose, or as a social guest, and is present at the consent of the owner, usually for a business purposeOwner has a duty to warn of known hazardsA trespasserOn the property without the owner’s permissionOwner has duty not to intentionally injury or set traps
18 Premises Claims Determine your employee’s status on the property Determine what duties the property owner owed the employeeWere those duties breached?Was that breach the proximate cause of your employee’s injuries?
26 Products Liability The manufacturer owed a duty to the injured party The manufacturer breached that dutyThe breach of duty was the cause of the injured person’s injuriesThe injured person suffered actual damages as a result of the breach
27 Products Liability Express warranties Implied warranties Specific claims made about a productImplied warrantiesOf fitness for a particular purposeProducts should be fit for normal use and foreseeable misuse
28 Products Liability Defenses against product liability claims include: Misuse (non-foreseeable) by the injured partyProduct alteration (either by the end user/injured party or by someone in the stream of commerce)Unusual reaction (ex.: a 1-in-a-million allergy or sensitivity to a medicine, lotion, etc.)Product design/materials were state of the art at the time of manufacture
29 Products Liability Stream of commerce Includes EVERYONE who was involved in the sale or distribution of a product, starting with the manufacturerIf you are pursuing a products liability claim, the general rule would be to put everyone on notice—and let each partyDocument they didn’t alter the product while it was in their care, custody and controlTender the defense of the claim “upstream” toward the manufacturer
32 Products Liability: “Higher Hanging Fruit” A product can be “defective” if it has:Improper instructions or safety warningsImproper or missing safety guards/shieldsImproper or missing safety interlock devicesImproper or missing shutoff switches/devices
44 Products Liability: “Higher Hanging Fruit” Was the product safe for regular use and foreseeable misuse?Were the instructions and warnings sufficient?Were there appropriate safety interlocks?Were there appropriate shut-off switches?
45 Don’t Let Plaintiff Attorneys Intimidate You Into Lien Compromises! The Plaintiff Attorney Credo1. If the facts are against you, argue the law2. If the law is against you, argue the facts3. If the facts and the law are against you, yelllike hell
46 “Our Liability Position is Horrible” (Says the Plaintiff Attorney Looking for a Lien Compromise…)