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Click on your state for a brief summary of that state's laws affecting or impacting subrogation recoveries.
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Nebraska Subrogation Laws
Sections
State Subrogation
Made Whole Doctrine
Common Fund
Collateral Source Rules
Hospital Lien Act
Medicaid Statute
State Subrogation
YES, equitable and contractual
See e.g. Shelter Ins. Companies v. Frohlich, 498 N.W.2d 74 (Neb. 1993), overruled on other grounds by Blue Cross and Blue Shield of Nebraska, Inc. v. Dailey, 687 N.W.2d 689 (Neb. 2004).
Made Whole Doctrine
YES, cannot contract around
The court in Dailey held that Made Whole Doctrine does apply and that parties cannot contract around equitable principles of subrogation. (Blue Cross and Blue Shield of Nebraska, Inc. v. Dailey, 687 N.W.2d 689 (Neb. 2004))
Common Fund
YES, traditional principles apply, insurer must pay share of attorney’s fees when it does not come into the litigation action. (United Services Auto. Assn. v. Hills, 109 N.W.2d 174 (Neb. 1961)).
Collateral Source Rules
Evidence of payments from collateral sources is inadmissible (Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc., 443 N.W.2d 872 (Neb. 1989)).
Hospital Lien Act
Neb. Rev. Stat. §52-401: Any hospital shall have a lien upon any sum awarded to the injured person for the usual and customary charges applicable
- The amount of the lien shall be reduced by the contracted discount or other limitation which would have been applied had the claim been submitted for reimbursement to the medical insurer
- Must serve written notice upon the interested parties – substantial compliance with notice requirements is required
- Hospital is not liable for attorney’s fees, but the attorney lien shall have precedence
- Amount of lien only equals the amount that the provider agreed to accept as full payment from patient and insurer, the provider is not entitled to receive from the insurer the difference between its bill and the health insurer’s payment (Midwest Neurosurgery, P.C. v. State Farm Ins. Companies, 673 N.W.2d 228 (Neb. Ct. App. 2004)).
Medicaid Statute
- Neb. Rev. Stat. §68-716: an application for medical assistance shall give a right of subrogation to the department of health; this includes every claim or right which the applicant may have against a third party
- Smalley v. Nebraska Dept. of Health and Human Services, 811 N.W.2d 246 (Neb. 2012), discusses Ahlborn reductions with limited detail.