Ohio
On November 6, 2009 the Ohio State Bar Association’s (OSBA) Council of Delegates voted 61 to 38 to not go forward with the proposed anti-subrogation at this time. Instead, the Council will send the matter back for further study to a new joint committee that has yet to be formed. This matter will be revisited when the Council meets in May 2010. While this is good news for now, there is a very real movement afoot to limit subrogation rights in Ohio. In fact, it is widely believed that the Ohio Association for Justice will introduce its own bill without regard to what the OSBA does with this issue.
New York
Meanwhile, the news out of New York is much more dire. On November 10, 2009 both houses of the New York legislature passed an anti-subrogation bill that was promoted by the Governor. It is expected that the Governor will sign this bill into law.
While the actual wording of the bill may be subject to some interpretation, the term “benefit provider” is broadly defined to include “any insurer…which provides for payment or reimbursement of health care expenses.” This potentially could be construed to reach insurers who pay auto medical payments, personal injury protection (PIP), or other like first party coverage.
The bill further provides that when a Plaintiff settles with one or more Defendant in an action that includes personal injuries that neither party would be subject to a benefit provider’s claim for subrogation or reimbursement. Certainly, the bill leaves open for argument whether it applies to property damages that occur in conjunction with personal injury. However interpreted, the future of subrogation in the State of New York is certainly murky at this point.
A Call To Action
Clearly, there is a trend where subrogation rights are coming under attack in several states. What can insurance carriers and others in the industry do? If your company employs a legislative affairs liaison, please forward this message to them. They will need to start educating those in the legislature regarding subrogation. It is also important for everyone in the industry to tout the benefits that subrogation provides to society. Subrogation makes sure that those responsible for damages or injury are held accountable for their actions. This discourages risky behavior. It also helps lower premiums.