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Simply
Subro
An article by
Mark
Susson
Forget
a birthday? Forget an
anniversary? No
problem, just buy a belated birthday or anniversary card, and
hopefully, all is forgotten. Forget to timely file a subrogation complaint?
Problem!
The
following five (5) rules will help simplify your subrogation
efforts.
Rule
No. 1:
Always refer your subrogation to counsel as soon as
possible, and no later than one (1) year from the date of
the accident, in order to allow counsel to file a civil action
within this one (1) year period.
Subject to certain exceptions, a subrogation action must be
filed within one (1) year from the date of the accident, or
the action will be barred forever.
Rule
No. 2:
If your subrogation claim is against a public entity, you
must file a written, approved claim with that public entity within
six (6) months from the date of the accident.
Failure to do so may be a complete bar to subrogation.
Once the claim is rejected (typically the claim will be
rejected as a matter of course), there are strict guidelines
setting forth the time period in which you must file a third party
civil lawsuit. I
strongly suggest that all subrogation matters involving government
claims be referred to counsel immediately, as this area is a
“trap for the unwary.”
Rule
No. 3: If the
claimant files a civil action within one (1) year from the
date of his/her accident, a subrogation action may be filed after
the one (1) year period, so long as the claimant’s action
is still pending (i.e., not yet resolved).
Although you should not rely on the claimant to file, this
rule will occasionally save you in the event you do not follow
Rule No. 1.
Rule
No. 4:
Place each third party defendant and his/her/its liability
carrier on notice of your subrogation claim as soon as possible.
If the third party or his/her/its liability carrier settles
with the claimant, prior to receiving notice of your subrogation
claim, the subrogation claim may very well be barred.
Also, if the third party liability carrier tenders policy
limits, prior to receiving notice of your subrogation claim, there
may very well be no funds available to settle your claim.
Rule
No. 5:
If the claimant retains an attorney and he/she handles the
case for a period of time prior to the involvement of your
counsel, then the claimant’s attorney may be able to charge you
for some portion of his/her fees for having “developed” the
case prior to your referral to your counsel.
The
moral of the story is that you must look for, recognize and act
upon cases involving subrogation at your earliest opportunity.
In
addition to the legal “mumbo jumbo” set forth above, I thought
it might be interesting to highlight one of the more interesting
cases which I handled over the last quarter.
The highlighted case arises out of a dog bite incident.
The
claimant, a 74 year old county worker, was employed as a welfare
investigator. He was
attempting to meet with an alleged fraudulent individual.
This individual resided in a lower, middle-class
neighborhood in a single-family dwelling.
The dwelling was surrounded by a chainlink fence.
When the claimant arrived at the property, he followed his
normal procedure and looked around the yard for a dog or dogs.
He also ran his clipboard along the fence in order to make
some noise to see if this would attract a dog or dogs.
With no dogs apparently present, he opened the chain link
gate and entered the front yard.
Almost immediately, a pit bull (named “Danger”) ran
from the rear of the house and attacked the claimant.
The claimant, armed with a gun, shot his gun several times
in order to scare the dog away.
Ultimately, the dog ran away, but not until the dog
detached the claimant’s pointing finger on his right hand.
Ultimately, the county paid medical and disability benefits
in the approximate sum of $225,000.
I
filed a subrogation action against the owner of the dog.
Unfortunately, the owner was in jail and without assets.
I ran an ownership profile on the property where the
accident occurred and soon learned that one individual owned the
subject property and approximately twenty (20) other properties in
the neighborhood. I
contacted the owner and learned that his daughter-in-law managed
his properties for him. I
immediately took her deposition only to learn that the owner was
essentially a “slumlord.” Based on this testimony, I amended the complaint to name the
owner of the property.
Having
researched the appropriate liability issues, I was aware of my
need to prove that the owner had actual knowledge of the presence
of “Danger” on the premises and of his vicious propensities.
Several depositions later, a witness, who had lived on the
subject block at the time of the accident (and had since moved to
Nebraska), testified that she told the daughter-in-law of the
owner of the property that the dog “better be current with his
shots,” because he was vicious and was sure to bite someone.
Needless
to say, I was able to convince the liability carrier that the
landlord had actual knowledge of “Danger” and of his
viciousness. The
carrier ultimately paid the county $210,000 and paid the claimant
$90,000. The claimant
had intervened in our case more than one (1) year after the
accident as allowed by law (see Rule No. 3 above).
As part of the settlement, I reserved the right to claim
credit, and thus the county will be able to claim a credit of
approximately $60,000 (the claimant’s net recovery after fees
and costs) with regard to any further claims by the claimant for
benefits.
While
some cases involving facts similar to the subject one may be
“dogs,” this one clearly was not.
You never know how a subrogation case may develop.
Make
the most out of your subrogation claims.
They are often interesting and enjoyable claims to handle.
Your clients will enjoy getting money back as opposed to
paying money out. Subrogation
presents a great opportunity to be a star.
Be aggressive and good luck!
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