presented by jim gill southwest risk services / berkley risk administrators
TRANSCRIPT
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Subrogation: Are you Leaving Money on the
Table?Presented by Jim Gill
Southwest Risk Services / Berkley Risk Administrators
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Are GREAT at◦ Medical lingo ◦ “Forms” lingo◦ Calculating stuff
Are less GREAT at◦ Liability/negligence determinations◦ Being “plaintiff attorneys”!
Work Comp Adjusters
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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
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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
The Basics of AZ Work Comp Subro
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…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)?
But If Someone Else’s Negligence Injured My Employee…
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Comparative Fault
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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!
Comparative Fault
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Duty owed Duty breached Proximate cause Actual damages
Negligence Claims: What Do I Need To Prove?
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Auto Claims
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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 “Low Hanging Fruit”
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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”
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Auto Claims: The “Higher Hanging Fruit”: Intersection Obstructions
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Auto Claims: The “Higher Hanging Fruit”: Intersection Obstructions
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Auto Claims: The “Higher Hanging Fruit”: Intersection Obstructions
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Auto Claims: The “Higher Hanging Fruit”: Improper Signage/Barricades
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Premises Claims
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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
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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 Claims
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Was the property well-lit?
Premises Liability
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If there was liquid/debris on the floor, was their a “reasonable” cleaning/maintenance schedule?
Premises Liability
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And, did the property owner try to warn of the dangers?
Premises Liability
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Were there physical defects that should have been discovered/repaired?
Premises Liability
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Were there code violations (stairways, handrails, etc.)?
Premises Liability
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Were there prior complaints about conditions? (i.e., was the property owner “on notice” of a dangerous condition?)
Premises Liability
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Products Liability
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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
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Express 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
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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
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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
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Products Liability: “Low Hanging Fruit”: Obvious Defects
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Products Liability: “Low Hanging Fruit”: Obvious Defects
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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
Products Liability: “Higher Hanging Fruit”
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Warnings That Probably Resulted from a Claim…
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Warnings that Probably Resulted from a Claim…
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Warnings that Probably Resulted from a Claim…
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Warnings that Probably Resulted from a Claim…
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Warnings that Probably Resulted from a Claim…
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Product Safety Devices
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Product Safety Devices
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Safety Interlock Devices
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Safety Interlock Devices
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Safety Interlock Devices
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Safety Interlock Devices
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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?
Products Liability: “Higher Hanging Fruit”
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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
Don’t Let Plaintiff Attorneys Intimidate You Into Lien Compromises!
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“Our Liability Position is Horrible”(Says the Plaintiff Attorney Looking for a Lien Compromise…)
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