WORKERS COMPENSATION SUBROGATION IN ALL 50 STATES
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1 MATTHIESEN, WICKERT & LEHRER, S.C. Wisconsin Louisiana California Phone: (800) WORKERS COMPENSATION SUBROGATION IN ALL 50 STATES State - Alabama , 6 months after., if shown it could make substantial contribution. :? Employee: (1) Carrier, Less Fees. (2) Balance to Plaintiff., employer immune even if intentional. Fitch Formula. Carrier can recover fees if it files, carrier owes fees on value of benefits. Use Miller Formula. Alaska , after 1 (1) Litigation Costs (2), employer reimbursement reduced by % of fault. Cooper Rule. Past and. Active vs. Passive English Rule, reduced by employer s negligence. Arizona (D), after 1 Off The Top, contribution lien reduced by % of employer s fault determined by jury (trial) or by court hearing (settlement)., lien not subject to reduction for atty s fees., also reduced by employer s % of fault. Arkansas , party must give 3 days notice of settling. in reasonable time after s (1) Costs/Fees (2) 1/3 to Worker (3) 2/3 to Carrier (4) Rest to Plaintiff Made Whole Applies Pro-Rata California Labor Code 3852, with notice by certified mail. (1) Costs/Fees Based On Services By Both (3) Rest to Plaintiff Proportional Only if Verdict Apportion, if carrier actively participates., in amount of employee s net recovery. Should file petition with W.C.A.B. Work Product of Matthiesen, Wickert & Lehrer, S.C. 1 Last Updated: 9/13/2017
2 - Colorado , even after runs.? Economic Damages Only. recovery from noneconomic damages. Pro-Rata t after 7/1/03 Connecticut can bring suit pursuant to Carrier can bring suit pursuant to equitable subrogation. intervene or give notice of lien within 30 days after notice of filing If suit brought by carrier, may be subject to equitable defenses, including Made Whole Doctrine. Lien matically Reduced By 1/3. If suit brought by carrier, may be subject to equitable defenses, including Common Fund Doctrine. Delaware 19 Del. C. 2363, if no plaintiff suit by 260 days. 30 days notice by all. s, Less Pro-Rata Fees Pro-Rata District of Columbia months after award. Carrier must intervene if plaintiff files Formula applies when carrier files Otherwise, carrier has only equitable lien. ne, unless agreed to by carrier., may suit directly if carrier files. Florida Year: 1: Plaintiff 2: Carrier 3: Plaintiff, MUST file tice of Lien. Carrier gets lien, less prorata fees, unless plaintiff shows Manfredo Formula. Pro-Rata, may suit if carrier files. 4 Yrs Georgia , after 1 Made Whole Doctrine codified. lien against non-economic damages. Plaintiff s Reduced By s Apportion based on services by carrier and plaintiff atty. Hawaii 386-8, after 9 months.?, Less Pro-Rata Fees Apportion based on activity of each., with approval of Dept. of Labor Idaho Carrier gets first money; dollar-for-dollar. subro when employer is comparatively negligent. Apportion based on activity of each., carrier reimbursed attorney s fees on each payment. 2Yrs Work Product of Matthiesen, Wickert & Lehrer, S.C. 2 Last Updated: 9/13/2017
3 - Illinois 820 I.L.C.S. 305/5(b), 3 months before. Carrier gets first money off top, less atty s fees.. Kotecki only, up to Kotecki cap. Limited to 25%, 25% of benefits owed as atty s fees. Indiana , 1 year after. s UM policy only, unless exclusion. Carrier paid first, less fees. Lien Reduction Stat may apply. Pro-Rata 25% and 1/3. Past and benefits. obligations end with any recovery.. Iowa 85.22, 90 days Plaintiff must give notice 10 days before trial. intervene or file tice of Lien within 30 days of receiving employer s notice or lose subro rights. First money past and Settlement of comp claim bars subro. fees paid back as benefits paid., may also Kansas , after 1 year; 18 months if death. Only to substitute payment. Brabander Formula. Lien extends only to damages that duplicate medical and lost wages.. Brabander Formula. Apportion, If active. fee if gerrymandering., reduced by employer s negligence. Kentucky , but only if employee has not filed reimbursement from non-economic damages. Modified Made Whole Doctrine applies., can seek contribution from employer, which reduces plaintiff s recovery, lien, and credit. Lien reduced by 100% of plaintiff s attorney s fees and costs., lien must exceed plaintiff s attorney s fees and costs or there s no credit. is reduced by % of employee s and employer s fault. 1 Yr for Louisiana 23:1101, et. seq., with Carrier must consent to settlement. s Policy only, unless UM policy excludes benefits to WC carrier. First money reimbursed. Reduced by plaintiff s contributory negligence. If settled, carrier can recover max of 50% of lien., lien reduced by employer s % of fault. Moody Fees. Pro-Rata based on atty s activity. 1 Yr e 39-A 107, after 30- day demand.? Carrier gets first money, less fees and costs. Pro-Rata, if plaintiff files. 6 Yrs Maryland Exclusive right for 2 mths after first award of comp. Joint right to file after 2 mths., if malpractice aggravates injury. Carrier gets first money, less fees and costs. Pro-Rata, unless intervention is necessary. Work Product of Matthiesen, Wickert & Lehrer, S.C. 3 Last Updated: 9/13/2017
4 - Massachusetts , after 7 months. Carrier gets first money, less fees and costs. Subro possibly not allowed against pain and suffering (Curry Allocation) or against loss of consortium (Eisner Allocation). Apportion, depending on activity. Hunter offset. Pays only fraction of benefits. 3Yrs Michigan , after 1 UM - UIM - Carrier gets first money, less fees and costs. Subrogated to economic damages only if no-fault involved. Subro for Expense if -. Pro-Rata Franges Formula Minnesota , can also actively participate. (2) 1/3 to Plaintiff (3) Carrier, Less Pro-Rata Fees (4) Balance To Plaintiff As (). Naig Settlement Lambertson / Reduction Court has discretion to determine reasonable fees. Carrier can t get fees., carrier pays % of benefits because of reduction for costs/fees. 6 Yrs Mississippi , with reasonable intervene unless there s reimburseme nt agreement or the carrier files. Fully - Fees Missouri , but not required. UM - UIM - Ruediger Formula Pro-Rata 5 Yrs Montana , after 1 Plaintiff must give? First money lien, subject to Made Whole Doctrine. Pro-Rata, unless carrier waives 50%. Stat. repealed in Nebraska ; ; ; equal voice.. Possibly s (2) Carrier Fully Division must be agreed to or court approved as fair and equitable., only if contractual indemnity. Fees/costs recoverable and allocated if carrier is active. If not, pro-rata deduction. 4 Yrs Work Product of Matthiesen, Wickert & Lehrer, S.C. 4 Last Updated: 9/13/2017
5 - Nevada 616C.215 Possibly s Lien may be limited to economic damages. Breen Formula. arguably limited to economic damages and reduced by personal living expenses. credit for noneconomic damages. New Hampshire 281-A:13, after 9 months. Lien reimbursed off the top, less any fees owed. As Justice May Require. Carrier may recover fees. Fees/costs owed on past and benefits. New Jersey 34:15-40, after 1 Carrier reimbursed, less pro-rata share of fees/ costs. Pro-rata of 1/3 fees and up to $750 in costs. New Mexico Reimbursement Only s? Modified Made Whole Doctrine. Subrogable Elements Only, reimbursement reduced by % of fault. Pro-rata, up to discretion of court. New York Work Comp 29, 30 days Depends (2) Carrier Fully (3) Net to Plaintiff Grave Injury Kelly Formula rth Carolina , joint right after 1 year, ending 60 days before., for policies after 10/1/99. (2) Carrier Fully (3) Net to Plaintiff Discretionary Reduction (e) Plaintiff Apply, must rth Dakota , after 60 days. Up to 50% of Third- 25% / 1/3% 6 Yrs Ohio Probably Probably Statutory allocation formulas for trials and settlements., but trust set up in amount of s. Work Product of Matthiesen, Wickert & Lehrer, S.C. 5 Last Updated: 9/13/2017
6 - Oklahoma 85 OSA 348 Accident Prior to 2/1/14 (1) Fees - costs off top. (2) If recovery is compromise settlement approval of court is needed. Balance apportioned as parties may agree. If no agreement, court can equitably apportion. (3) If recovery is not compromise settlement, Prettyman formula allowed. Only If Is More Than Lien 85 OSA 43 Accident After 2/1/14?? (1) Fees costs off top. (2) Carrier receives 2/3 of net recovery or its entire lien, whichever is less. (3) Balance to plaintiff., must recover payments in recovery. Oregon , 90 days after election.? Fully For Past and (3) Carrier Fully (4) Balance to P- Possible Just and Reasonable Allocation Off The Top, must if recovery made before benefits paid. Pennsylvania 77 P.S. 671? : Employee: Other Person: Causes of action prior to 3/20/03 ne ne. First Money Pro-Rata Rhode Island , if notice given 26 wks before 2 yr, 8 mths anniversary of accident, can sue after 2 yr, 8 mths date. ne ne. First Money Pro-Rata South Carolina , after 1 First money less fees; but equitable reduction. Set by Commission F2 1/3 Work Product of Matthiesen, Wickert & Lehrer, S.C. 6 Last Updated: 9/13/2017
7 - South Dakota , 39, 40 s Subrogation limited to like damages (economic v. noneconomic). Below is Zoss Formula : (1) Allocate recovery into like damages (hearing); (2) Determine amount of like damages paid by carrier; (3) Subtract pro-rata fees/costs (ratio of lien to gross recovery); and (4) Balance paid to carrier. Pro-rata, up to 35%. Allocated between worker and carrier., recovery and credit limited to like damages. Tennessee , after 1 Carrier has additional 6 mths to file for a total of 18 mths. Special Formula First Money, defendant can introduce evidence to show employer cause in fact. Pro-rata if no active participation by carrier., but no credit against unknown or incalculable med benefits, unless carrier proves likelyhood and amount of medicals. 1 Yr Texas s Carrier has first money right of recovery. After 1/1/03 proportional reduction. Apportionment, may suit if carrier sues alone. Utah 34 A Fully, Less Pro-Rata Fees/ Costs. (3) Net to Plaintiff 40% Rule Pro-Rata 4 Yrs Vermont Title , after 1 Only If Plaintiff Is Made Whole First dollar reimbursed to carrier, less pro-rata fees. Pro-Rata Virginia Probably s First dollar reimbursed to carrier, less pro-rata fees. Pro-Rata, carrier reimbursed attorney s fees on each payment. Work Product of Matthiesen, Wickert & Lehrer, S.C. 7 Last Updated: 9/13/2017
8 - Washington Possibly s? (2) 25% to Plaintiff (3) Carrier Fully, Less Pro-Rata Fees/ Costs. (4) Net to Plaintiff recovery from pain and suffering damages. Pro-Rata West Virginia 23-2A-1 Employee Policy: Policy:? First dollar recovery after 2003 Amendment. Statutory Reduction. 23-2A-1(b) Wisconsin (1) Atty s (2) 1/3 Balance to Plaintiff (3) Carrier Fully (4) Balance to Plaintiff s, carrier can recover s if prosecutes case. Wyoming , 15 days First money right of recovery, must 4 Yrs These materials and other materials promulgated by Matthiesen, Wickert & Lehrer, S.C. may become outdated or superseded as time goes by. If you should have questions regarding the current applicability of any topics contained in this publication or any of the publications distributed by Matthiesen, Wickert & Lehrer, S.C., please contact Gary Wickert at gwickert@mwl-law.com. This publication is intended for the clients and friends of Matthiesen, Wickert & Lehrer, S.C. This information should not be construed as legal advice concerning any legal advice concerning any factual situation and representation of insurance companies and\or individuals by Matthiesen, Wickert & Lehrer, S.C. on specific facts disclosed within the attorney\client relationship. These materials should not used in lieu thereof in anyway. Work Product of Matthiesen, Wickert & Lehrer, S.C. 8 Last Updated: 9/13/2017
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