1. Subrogation: Are you Leaving Money on the Table?
Presented by Jim Gill
Southwest Risk Services /
Berkley Risk Administrators

2. Work Comp Adjusters Are GREAT at Are less GREAT at Medical lingo
“Forms” lingo
Calculating stuff
Are less GREAT at
Liability/negligence determinations
Being “plaintiff attorneys”!

3. The Basics of AZ Work Comp Subro
TWO-year statute of limitations for negligence claims vs. private entities
Year #1: Claimant has exclusive recovery rights
Claimant needs to
Settle and pay the WC lien
File a lawsuit
Get a reassignment form the WC carrier/self insured
Year #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 entities
ONLY if you file a statutorily compliant notice of claim within 180 days after date of loss/discovery of negligence-based damages
Injured worker and WC carrier/self insured’s rights against responsible third parties run concurrently
Unless 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)?

6. Comparative Fault

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 damages
DON’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 owed
Duty breached
Proximate cause
Actual damages

9. Auto Claims

10. Auto Claims: The “Low Hanging Fruit”
Rear-end auto accidents
Left turn accidents
Failure-to-yield accidents
Other vehicle ran a stop sign or red light
Other 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 say
What 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

16. Premises Claims

17. Premises Claims If you’re on someone else’s property, you’re either
An invitee/business invitee
Invited by the property owner, generally to benefit the owner (i.e., store customers)
Owner has a duty to make the property reasonably safe
A licensee
Enters property for his own purpose, or as a social guest, and is present at the consent of the owner, usually for a business purpose
Owner has a duty to warn of known hazards
A trespasser
On the property without the owner’s permission
Owner 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 employee
Were those duties breached?
Was that breach the proximate cause of your employee’s injuries?

19. Premises Liability
Was the property well-lit?

20. Premises Liability
If there was liquid/debris on the floor, was their a “reasonable” cleaning/maintenance schedule?

21. Premises Liability
And, did the property owner try to warn of the dangers?

22. Premises Liability
Were there physical defects that should have been discovered/repaired?

23. Premises Liability
Were there code violations (stairways, handrails, etc.)?

24. Premises Liability
Were there prior complaints about conditions? (i.e., was the property owner “on notice” of a dangerous condition?)

25. Products Liability

26. Products Liability The manufacturer owed a duty to the injured party
The manufacturer breached that duty
The breach of duty was the cause of the injured person’s injuries
The injured person suffered actual damages as a result of the breach

27. Products Liability Express warranties Implied warranties
Specific claims made about a product
Implied warranties
Of fitness for a particular purpose
Products should be fit for normal use and foreseeable misuse

28. Products Liability Defenses against product liability claims include:
Misuse (non-foreseeable) by the injured party
Product 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 manufacturer
If you are pursuing a products liability claim, the general rule would be to put everyone on notice—and let each party
Document they didn’t alter the product while it was in their care, custody and control
Tender the defense of the claim “upstream” toward the manufacturer

30. Products Liability: “Low Hanging Fruit”: Obvious Defects

31. Products Liability: “Low Hanging Fruit”: Obvious Defects

32. Products Liability: “Higher Hanging Fruit”
A product can be “defective” if it has:
Improper instructions or safety warnings
Improper or missing safety guards/shields
Improper or missing safety interlock devices
Improper or missing shutoff switches/devices

33. Warnings That Probably Resulted from a Claim…

34. Warnings that Probably Resulted from a Claim…

35. Warnings that Probably Resulted from a Claim…

36. Warnings that Probably Resulted from a Claim…

37. Warnings that Probably Resulted from a Claim…

38. Product Safety Devices

39. Product Safety Devices

40. Safety Interlock Devices

41. Safety Interlock Devices

42. Safety Interlock Devices

43. Safety Interlock 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 Credo
1. If the facts are against you, argue the law
2. If the law is against you, argue the facts
3. If the facts and the law are against you, yell
like hell

46. “Our Liability Position is Horrible” (Says the Plaintiff Attorney Looking for a Lien Compromise…)