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News about our firm and from around the Subrogation World

Ohio Supreme Court Holds Third Parties Jointly and Severally Liable as to Subrogation Interest on Post Settlement Workers’ Compensation Benefits

WORKERS

CASE ALERT:

The Ohio Supreme Court has issued a decision underscoring the reach of the state’s workers’ compensation automatic subrogation statute.

In Bureau of Workers Compensation v. Verlinger (Slip Opinion No. 2018-Ohio-1481), Ohio’s high court reversed the lower courts, holding that both a claimant and settling third parties are jointly and severally liable for the subrogation lien, including as yet unpaid and future benefit payments. Third parties would include the tortfeasor, its insurance carrier, and the claimant’s underinsured motorist insurer.

In Verlinger, the statutory subrogee (the Bureau) filed suit asserting its subrogation interest naming as defendants the claimant, her insurer and the insurer of the driver alleged to have caused the accident.

The factual setting was interesting given that at the time of the third-party settlements there were no workers’ compensation benefits paid. In fact, the claimant had previously been denied workers’ compensation benefits for failing to demonstrate that the motorcycle crash injury occurred within the course and scope of the driver’s employment. The denial was subsequently reversed on administrative appeal and the claimant was deemed eligible for benefits.

The allowance of benefits occurred after the third-party settlements with the insurers.

The Ohio Supreme Court went further in holding that a potential workers’ compensation recipient remained a “claimant” under the automatic subrogation provision of the statute, at least until the time period for application lapses.

Under the statute a claimant has an obligation to notify a statutory subrogee of the identity of all potential third parties against whom a claimant may have a right of recovery. Statutory subrogees would include the Bureau, the Ohio attorney general (if the claimant is insured through the BWC) or a self-insuring employer.

Although a settling third party does not share the duty of notification with the claimant under the statute, the Court interpreted the law to impose joint and several liability on those third parties for failure of the claimant to protect the subrogation lien. Under Verlinger, the claimant and the insurers who settled with the plaintiff were held jointly and severally liable.

Indemnification language as to the subrogation interest in a release or settlement agreement may help blunt the impact of the Court’s holding on a settling third party. However, given the decision even if the release has indemnity language the statutory subrogee still has a right to assert its subrogation claim against all parties as they remain jointly and severally responsible for the subrogation interest. This is the case even if the benefits are allowed and paid in the future. Although the settling third party may in turn attempt to hold a plaintiff responsible for the lien, the subrogation rights against settling third party remain.

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RMI’s roots run deep in the area of Ohio subrogation workers’ compensation.

RMI has represented self insureds, TPA’s and out of state insurers on Ohio subrogation workers compensation matters throughout the firm’s history. RMI represented the National Association of Subrogation Professionals (NASP) in the organization’s first ever amicus filing – a case before the Ohio Supreme Court on the constitutionality of the subrogation provision of the state’s workers compensation statute.

For your Ohio matters involving a workers compensation subrogation issue, contact RMI partner Tim Ita.

 

 

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RMI DEFEATS “SUDDEN-MEDICAL EMERGENCY DEFENSE” / $350,000 in Recoveries after Verdict & Settlements on Three Recent Challenges to Ohio Doctrine

RMI Sudden Medical Banner for Website Photo use

Ohio’s “sudden-medical emergency” doctrine has long been utilized by defense insurers and counsel to defeat subrogation cases. The defense is often used by insurers who claim a sudden medical or other emergency resulted in a driver losing control of a vehicle and colliding with a building.

In three recent cases, RMI has successfully challenged the defense resulting in $350,000.00 in aggregate subrogated recoveries by way of a verdict and two settlements.

All three cases involved property losses to buildings sharing a common denominator of a complete denial of liability by the vehicle insurer based on the sudden emergency doctrine. Two of the cases involved alleged medical emergencies.

Tim Ita tried a case to verdict in Hamilton County with a 100% liability finding in his client’s favor, an insurer of a retail store. The defendant driver claimed a sudden emergency resulted in his swerving onto the sidewalk and crashing into the storefront. Tim Ita also litigated and settled a claim for $146,000 involving a residential loss where the defense was that the commercial operator of a heavy equipment truck had lost consciousness from choking and collided with the insured’s home.

David Matejczyk recently litigated and resolved a “sudden-medical emergency” case in the sum of $180,000 for a subrogated insurer. The defense insurer maintained its driver collided with a commercial building because she allegedly lost consciousness. In that case, RMI immediately visited the loss site and matched witness statements as to specific locations along the route of travel. It was successfully argued that there was nothing “sudden” about the driver’s loss of consciousness, and that she continued driving despite warning signs of her condition.

Although the Ohio Supreme Court has upheld the sudden-medical emergency doctrine, each case is fact specific. The denial of liability and attempt to invoke the doctrine should be challenged by closely looking at the specific fact pattern to ascertain if the defense should apply.

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SUBROGATING PIPE FREEZE, SPRINKLER SYSTEM FREEZE FAILURES AND PLUMBING LOSSES / $516,000 Settlement on Pipe Break Claim / Subrogation Targets & Tips

WindBarierPhoto

Once again, Ohio is gripped with plunging temperatures and resulting claims from pipe freeze losses.  Recently, RMI was pleased to present a program along with Lee Fire Protection on “Sprinkler System Freeze Failures: Causes, Investigation and Successful Subrogation.” The webinar was a joint presentation with PLRB and NASP.

Plumbing failures occur when water in a system freezes. Water expands when it changes from liquid to solid, and if there are not sufficient air pockets a pipe break will ensue. Often the failure is not evident until a thaw or warming in temperature, sometimes two to three days after the bitter cold spell ends. The resulting escape of water can be catastrophic. RMI has successfully litigated multiple cases involving freeze failures in sprinkler systems, along with other pipe freeze and other plumbing failures.

Recently the firm had a $516,000.00 pipe break water loss subrogation settlement at a commercial building in northern Ohio. The case was litigated by RMI Attorney David Matejczyk.

Other significant recoveries by the firm have involved six digit settlements on freeze failures involving contractors who deviated from the standards set forth in NFPA 13 (Standard for Installation of Sprinkler Systems, and NFPA 25 – Inspection Testing and Maintenance of Water-Based Fire Protection Systems).  RMI Attorneys  David Matejczyk and Glenna Roberts have litigated multiple large and small losses involving freeze failures, NFPA 13 and NFPA 25. The firm also this past year added to its property division Attorney Dustin Smith  a graduate of Ohio State’s engineering program whose background includes fluid and thermodynamics.

Recoveries related to freeze failure claims have involved sprinkler system installation, improper maintenance by service companies, improper insulation by contractors, improper plumbing workmanship, contractors who caused the building envelope to breach allowing cold to freeze pipes and management companies who failed to maintain heat in recently vacated properties.   

freezing thermometer

Common subrogation targets on a freeze failure loss include:

-Sprinkler system inspection/service companies

-Architects

-Plumbing contractors

-Insulation contractors

-Construction managers

-Roofers who may have impacted pipe pitch

-HVAC contractors

-Manufacturers, suppliers and sellers of heating related products that failed

-Alarm and security monitoring companies

-Tenants who failed to properly heat premises

-Management companies who failed to arrange heat in vacant apartments

Subrogation Tips:

Subrogating the pipe freeze failure loss is unique from other losses. A primary challenge is that mitigation efforts usually begin immediately to avoid further damages from plummeting temperatures. Often the subrogation target is an entity the insured calls as part of remediation.

As soon as the pipe freeze claim is reported, if possible ask the insured to photograph the loss immediately, prior to arrival of the adjuster.

Ensure any parts (metal pipes, elbows, sprinkler heads) are preserved and not removed from the scene.

On a freeze failure involving a fire suppression system immediately contact an expert and counsel who are familiar with the requirements of NFPA 13 and NFPA 25. It is imperative to have a professional investigate the loss who is familiar with NFPA requirements, including pitch of pipe, previous testing and maintenance and other technical issues.

Document and inquire why there was a lack of heat in the impacted areas. For example, was a thermostat set at the proper level by a tenant or the insured. Building blueprints and mechanicals from the insured should be requested, along with contracts, subcontracts inspection and maintenance records.

The subrogation notice letter on a pipe freeze claim is also different than one used on fire and other property losses. If the subrogation target was already called as part of immediate remediation efforts, address this in the correspondence along with a demand that all evidence removed or repaired be preserved or documented.

If you or your organization desire a pdf of the Sprinkler System Freeze Failures webinar prepared by RMI and Lee Fire Protection simply send an email request to either Dave Matejczyk at This email address is being protected from spambots. You need JavaScript enabled to view it. or Nate Lee at This email address is being protected from spambots. You need JavaScript enabled to view it.

Nate Dave

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RMI PARTNER CO-PRESENTER: FIRE SCENE SAFETY, PRESERVATION & RELATIONSHIPS: THREE KEYS TO A SUCCESSFUL FIRE INVESTIGATION

 DMM Scene Photo Bio

RMI partner David Matejczyk, who has participated in hundreds of fire scene examinations in Ohio during his legal career, was a co-presenter at the NASP Annual Conference on the topic of safe and successful fire scene examinations.

The program titled “Fire Scene Safety, Preservation, and Relationships: Three Keys to a Safe and Successful Fire Investigation Subrogation” addressed steps to a successful fire scene investigation.

Co-presenters included the Chair of the IAAI Health and Safety Committee along with another experienced subrogation counsel from a neighboring state.

The program addressed the health and safety risks associated with site inspections, the legal risks associated with improperly handling site inspections, and the interpersonal conflicts that may exist during the site inspection process. The presentation addressed issues that arise during the early stages of a fire loss investigation: (1) the often overlooked environmental and physical hazards; (2) the sometimes overlooked NFPA 921 mandates for site access, site exams, and evidence preservation; and (3) the interrelationships between those involved in the investigation process and the conflicts that sometimes develop.

Related to this topic, RMI offers a program to insurers on scene exam issues for both adjusters and subrogation professionals. For further information contact either Attorney David Matejczyk or Attorney Dustin Smith at RMI.

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NASP Fire Scene Safety Title Slide 

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ORIGINAL SPOKESMAN OF SUBROGATION HONORED

The Original Spokesmen of Subrogation

Attorney Jeffrey Baill, founder of the National Association of Subrogation Professionals, was presented with the organization’s first Lifetime Achievement Award in Austin, Texas at the annual convention.  RMI partner David Matejczyk was pleased to participate in the presentation along with three other original board members of NASP. Congratulations Jeff Baill, and thank you for your efforts on behalf of all subrogators!

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