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News about our firm and from around the Subrogation World

SUBROGATED HEALTH INSURER OR PLAN NAMED AS A DEFENDANT IN OHIO - "I received a court document! What should I do?"

Summon ClipCivil Procedure

Failure to Properly Respond Per Ohio Civil Rules May be Fatal to Your Subrogation Claim

In Ohio, court documents may arrive in several different forms. The court document or pleading most likely to be seen first would be a “Summons and Complaint” naming a plan or TPA (usually improperly named) as a defendant, which is very common in Ohio. In fact, some courts require the subrogated interest(s) such as a health plan or workers comp lien to be added as a party where not originally named. The document you receive may be an initial complaint alleging injury or an amended complaint by which the lien interest is being added to the already ongoing litigation. 

Under Ohio law, a defendant has only 28 days from the date the summons and complaint or amended complaint are first received in which to answer. The 28 days begins running as soon as the party or its agent (i.e., statutory agent, TPA, any office address, etc.) receives the suit papers. We all know this time can pass all too quickly during the press of ordinary business, while the court document is first associated with a particular member (or subscriber’s relative) and eventually makes its way to the appropriate handler for the first time.

A timely phone call to Ohio outside counsel, even with limited information, can help stave off the potentially bad consequences of a late response. It should be emphasized here that it is not sufficient at this point under either the Ohio civil rules or practical experience for the file handler to simply call or write the plaintiff’s attorney – the simple fact is that you need to get right with the court through counsel at the peril of your subrogated interest.

More urgent would be receipt of a “Motion for Default Judgment” against the lien interest. Worse still would be receipt of a notice of default hearing or a default judgment entry dismissing the subrogated lien interest. Again, in the spirit of “better late than never,” a timely phone call to Ohio counsel may ameliorate a problematic situation.

Even aside from these more typical “invitations” to join pending state court litigation, the plan or TPA may (and in fact should under the Ohio rules) receive court notices of hearings, depositions, etc. If you receive a notice or pleading from any court or party in pending litigation, and you do not currently have counsel assigned, receipt of such notice or pleading should prompt a handler to investigate: 1) whether a file has already been referred; and/or 2) whether the file now should be referred out to counsel (hint: if the first answer is “no” the second should be “yes”). Additionally, even where the subrogated interest is not named as a party, the plan or TPA may later become involved through receipt of a records subpoena or just a letter from the member’s counsel. If the matter is in litigation, this would be the appropriate juncture at which the interest should intervene in the suit.

One perhaps unique feature of Ohio law is the fact that the subrogated lien interest, even if not a named party, may ultimately become involved in trial via a third-party subpoena. Under the state’s Robinson v. Bates line of decisions, a defendant can introduce evidence of insurance/plan payments and/or provider write offs, etc., to counter the presentation of “face value” billings submitted by the injured plaintiff. This is true even if the subrogated interest has been “waived” or some out-of-court “understanding” has been reached with the plaintiff’s attorney. So, involvement of Ohio counsel on the ground is best done sooner rather than later when you learn of pending litigation affecting your subrogated interest.

Roberts, Matejczyk & Ita Co., L.P.A. has handled Ohio-based health care and health insurer subrogation litigation involving health plans, FEHBA (federal employee), Medicare Advantage and Self-insured ERISA, and other health plans for over a quarter century.

For Ohio litigation representation on subrogated health insurance matters, or questions of any sort, feel free to call Tim Ita or Glenna Roberts at Roberts, Matejczyk & Ita Co., L.P.A. at (330) 769-0911 (Email: Tim: This email address is being protected from spambots. You need JavaScript enabled to view it., Glenna: This email address is being protected from spambots. You need JavaScript enabled to view it.).

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BURN IT - TO LEARN IT! - Insurance Adjuster/Subrogation LIVE BURN Seminar - June 22, 2018 in Hilliard, Ohio


RMI is pleased to have been asked to participate in an information packed fire investigation and insurance adjuster/subrogation live burn seminar being held Friday, June 22, 2018, 9:30 am to 1:30 pm at the Norwich Township Fire Department, 5181 Northwest Parkway in Hilliard, Ohio.

Your company’s adjusters, managers, subrogation units and in-house counsel are invited to attend.

Lunch is provided. Please RSVP to Michelle Hoffman (Ph. 614-863-9650) or This email address is being protected from spambots. You need JavaScript enabled to view it.

picture Scene Exam Picture 

Program Description 

From the first notice of a fire loss to the conclusion of the scene investigation, this program addresses insurance adjustment & subrogation issues, legal considerations, cause and origin investigation of a fire loss and much much more. A topic loaded classroom program in the morning will move to a live fire burn of two pods - applying the insurance, legal and investigation issues to a live fire.

Topics Covered

-Roles and duties of the adjuster, subrogation unit and counsel. 

-The fine line between mitigation of damages and spoliation.

-Avoiding bad faith claims and potential sanctions from the fire loss.

-Legal issues involving the insured, injuries from the fire, renters and impacted third parties.

-Control and eventual release of the scene.

-Safety issues as to adjusters, investigators and all involved.

-Proper Damage Documentation (adjuster tips for avoiding later deposition challenges).

-Identifying all potential subrogation targets (known and unknown).

-Product liability subrogation fire trends.

-Proper and NFPA compliant notice to parties and others impacted by the loss / protocols.

-Initial and joint scene examinations of the scene (do’s and dont’s).

-NFPA 921 / Identifying origin, cause, fire spread and responsibility for the fire.

 After we learn…..it is time to burn!

-Live burn of Pod 1

-Live burn of Pod 2

      .Your company’s adjusters, managers and subrogation units are invited to attend. Lunch is provided. Please RSVP to Michelle Hoffman (Ph. 614-863-9650) or This email address is being protected from spambots. You need JavaScript enabled to view it.

Burn it to Learn it Live Burn June 22 Seminar


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



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


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


-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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