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Common Mistakes in Handling Personal
Injury Subrogation: Identifying and Resolving
Errors Prior to SettlementImpact on Plaintiffs and Defendants
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WEDNESDAY, OCTOBER 10, 2018
Presenting a live 90-minute webinar with interactive Q&A
Jesse Cohen, Director of the Subrogation Department, Sacks Weston Diamond, Philadelphia
Kevin P. O'Brien, Attorney, Stampone Law, Cheltenham, Pa.
Gary L. Wickert, Partner, Matthiesen Wickert & Lehrer, Hartford, Wis.
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Presented By:
Gary L. WickertMatthiesen, Wickert & Lehrer, S.C.
Jesse M. CohenSacks Weston Diamond, LLC
Kevin P. O’BrienStampone Law
COMMON MISTAKES IN HANDLING PERSONAL INJURY SUBROGATION
NOT COOPERATING WITH THE ENEMY
• Carrier Investigation Invaluable• Gaining Trust of Employer/Employee• Retention of Evidence/Defective Products• Working With Subrogation Counsel
– Joint Prosecution Agreements– Expert Sharing– Cost Sharing
• Claim Payment Logs Exclusive Remedy Rule– Amounts Billed– Amounts Paid– Broken Down by Provider and Dates of Service
• Exclusive Remedy Rule• Stipulations
6
EXPERT SHARING AND JOINT PROSECUTIONS
• Carrier’s Expert Often Only Expert
• Sharing Fees and Costs
• Giving Up Something To Gain A Lot
7
REPRESENTING THE CARRIER’S SUBROGATION INTEREST
• Conflicts of Interest– Code of Professional Conduct
1. Representation of one client will be directly adverse to anotherclient; and
2. There is a significant risk that the representation of one or moreclients will be materially limited by the lawyer’s responsibilities toanother client.
– ABA Rule 1.7: Need Informed Consent▪ No Conflict if Subrogation Interest is Identical to Plaintiff’s Interest
▪ Don’t Actively Work Against Your Own Client (Subrogated Carrier)
▪ Could Jeopardize Attorney’s Fee From Both
• Bottom Line: Get “Informed Consent” From Each Client
8
CONFLICT OF LAWS ANDMULTI-STATE SUBROGATION
• Understand Which Laws Apply
• Know the Law of Each State
• Don’t Make Assumptions
9
FAILURE TO DISCOVER WAIVER OF SUBROGATION
• Elements of Effective Waiver• Request Copy of Actual Policy• Review Contract Between Employer and General Contractor/
Subcontractor• Understand What is Being Waived• Parties Named in Schedule
10
COMMON SUBROGATION MISTAKES
AT TIME OF LOSS
• Lack of Early Intervention
• Lack of Investigation
– Resources
– Time
• Improper Evaluation of Claim Value
• Failure To Secure Evidence
• Spoliation
• Failure To Investigate All Viable Third-Party Claims
11
COMMON MISTAKES AT SETTLEMENT
• Release Language
• Lien Waiver
• Carrier Reimbursement / Statute
• Failure to Determine Lien Amount
• Failure to Discuss Settlement With Carrier A/K/A the“Shotgun” Settlement
• Failure to Educate Carrier About Case in Advance ofSettlement
12
SETTLEMENT AND INDEMNITY
• Release and Indemnity Language– Lose Leverage– Carriers Afraid of Losing at Trial
13
SETTLING AT MEDIATION WITHOUT AGREEING IN DETAIL AS TO LIEN
• Agree In Writing That Carrier’s Lien Will Be Reimbursed
• Lien Can Double Overnight
• Be Specific With Regard To Numbers
14
LACK OF COORDINATION WITH CARRIER
• Carrier Must Be Involved For Any Settlement To BeSuccessful
• Carrier Should Be Invited To Attend
• Case Should Be Discussed With Carrier In Advance
– Positive Aspects of Case
– Negative Aspects of Case
– Chance of Success at Trial
15
FUTURE CREDIT AND SETTLEMENT
• Understanding the Employee’s Credit Rights
• Property Valuing the Credit
• Dealing With the Credit
16
PROCRASTINATION IS NOT YOUR FRIEND
• Weigh Waiting Until MMI vs. Carrier Filing First
• Know What the Law Provides Regarding Carrier Filing
• Involuntary Plaintiffs/Automatic Inclusion of SubrogationParties
17
HIRING A SUBROGATION EXPERT
• More Valuable Than Good Expert
• Obligation to Maximize Your Client’s Recovery MeansReducing/Eliminating Subrogation
• Subrogation Killers
18
QUESTIONS AND ANSWERS
19
20
GARY L. WICKERT, [email protected]
(800) 637-9176
JESSE M. COHEN, [email protected]
(215) 925-8200
KEVIN P. O’BRIEN, [email protected]
(215) 663-0400
