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

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”!

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

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

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)?

Comparative Fault

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!

Negligence Claims: What Do I Need To Prove? Duty owed Duty breached Proximate cause Actual damages

Auto Claims

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

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?

Auto Claims: The “Higher Hanging Fruit”: Intersection Obstructions

Auto Claims: The “Higher Hanging Fruit”: Intersection Obstructions

Auto Claims: The “Higher Hanging Fruit”: Intersection Obstructions

Auto Claims: The “Higher Hanging Fruit”: Improper Signage/Barricades

Premises Claims

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

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?

Premises Liability Was the property well-lit?

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

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

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

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

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

Products Liability

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

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

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

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

Products Liability: “Low Hanging Fruit”: Obvious Defects

Products Liability: “Low Hanging Fruit”: Obvious Defects

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

Warnings That Probably Resulted from a Claim…

Warnings that Probably Resulted from a Claim…

Warnings that Probably Resulted from a Claim…

Warnings that Probably Resulted from a Claim…

Warnings that Probably Resulted from a Claim…

Product Safety Devices

Product Safety Devices

Safety Interlock Devices

Safety Interlock Devices

Safety Interlock Devices

Safety Interlock Devices

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?

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

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