Subrogation Laws in All 50 States - Interactive Map

[subscribe_to_unlock_form]

Click on your state for a brief summary of that state's laws affecting or impacting subrogation recoveries.

 

To receive a call back today to answer any of your questions, email us at [email protected]

[/subscribe_to_unlock_form]

Louisiana Subrogation Laws

State Subrogation

YES, statutory and contractual (not equitable)

Health insurer does not have an automatic right of subrogation – it must be in the contract (Martin v. Louisiana Farm Bureau Cas. Ins. Co., 628 So.2d 1213 (La. Ct. App. 1993)).

LSA-C.C. Art. 1829 provides for statutory subrogation but policies specifically regarding medical benefits subrogation comes from case law.

Made Whole doctrine

YES, can contract around

Louisiana refers to the Made Whole Doctrine as the “Full Compensation Rule” and requires an inured to be fully compensated before a Plan may exercise its subrogation rights. In the absence of a contrary agreement, an insurance company may not enforce its subrogation rights until the insured has been fully compensated for their injuries (Roberts v. Richard, 743 So.2d 731 (La. Ct. App. 1999)).  The burden of proof is on the insured (Wallace v. Aetna Life & Casualty Ins. Co., 499 So.2d 577 (La. Ct. App. 1986)).

The third circuit has held that when an insured has settled a case, fully aware of the fact that the insurer has subrogation rights, the insured cannot later claim that they were not made whole.  The insured must have been satisfied enough to settle the case, and thus they will owe to the insurer the full amount (American Postal Workers Union, AFL-CIO Health Plan v. Tippett, 82 So.3d 379 (La. Ct. App. 2011)).

Natl Employee Ben Trust of Associated Gen Contractors of Am v Sullivan, 940 F Supp 956 (WD La 1996). The court stated that “the doctrine is merely a rule of interpretation, a ‘gap-filler’ that comes into play when contracts fail to address the issue clearly. Of course, a beneficiary may sign away the right to be made whole.

Natl Employee Ben Trust of Associated Gen Contractors of Am v Sullivan, 940 F Supp 956 (WD La 1996)

New Orleans Assets, LLC v Woodward, 363 F3d 372, 373 (CA 5 2004)

Common Fund

Essentially YES, reasonable attorney’s fees will be assessed based on the circumstances

Barreca v. Cobb, 668 So.2d 1129 (La. 1996): “both insured and insurer are responsible for litigation expenses; however a prerequisite to the assessment of attorney fees on insurer is timely notice to the assurer, and it is only justified when the insurer chooses to rely on the efforts of insured’s counsel.  Insurer who has notice of insured’s claim but fails to bring its own action or intervene in plaintiff’s action will be assessed proportionate share of costs.  Insurer is not bound by fee contract between insured and attorney; rather the amount and nature of services rendered and all factors relevant, including contingency fee contract, must be considered.”

Collateral Source Rules

Plaintiff’s tort recovery may not be reduced by funds received from sources independent of the defendant (Coscino v. Wolfley, 696 So.2d 257 (La. Ct. App. 1997)

Hospital Lien Act

  • LSA-R.S. §9:4752: hospitals have privilege on net proceeds collected from a third party for the reasonable charges or fees of services they provided
    • The privilege of an attorney shall have precedence over the hospital, so the attorney gets paid first
    • Consensus in the case law seems to be that hospitals cannot be compelled to contribute to attorney’s fees (See e.g. Mena v. Muhleisen Properties, 652 So.2d 65 (La. Ct. App. 1995))
  • LSA-R.S. §9:4753: prior to settlement/judgment/payment, written notice must be delivered to the interested parties
  • Attorney General of Louisiana Opinion No. 05-0056: a health care provider may not hold an enrollee/insured or their health insurance carrier as the responsible party for any amount in excess of the contracted reimbursement under the applicable health insurance policy

Medicaid Statute

  • LSA-R.S. §46:446
    • (B): the department shall have a cause of action against the third party to recover amount spent on medical assistance
    • (C): any Medicaid recipient that files suit against a third party must notify the department
    • (G): the department shall have a privilege for the medical assistance payments made by the department on behalf of the injured out of the total amount of recovery. The privilege of an attorney shall have precedence over this privilege.  Must be written notice mailed to all parties
    • The department can only be reimbursed from the portion of the settlement/judgment allocated to medical expenses (Weaver v. Malinda, 980 So.2d 55 (La. Ct. App. 2008))

To receive a call back today to answer any of your questions, email us at [email protected]