Ohio Subrogation Laws

State Subrogation

YES, state recognizes both equitable and contractual, but case law primarily emphasizes contractual subrogation (Blue Cross & Blue Shield Mut. Of Ohio v. Hrenko, 647 N.E.2d 1358 (Ohio 1995)).

Principles of equitable subrogation do not override clear and unambiguous contractual provisions (N. Buckeye Edn. Council Group Health Benefits Plan v. Lawson, 814 N.E.2d 1210 (Ohio 2004)).

Made Whole Doctrine

YES, can contract around

An insurer’s subrogation interest will not be given priority where doing so will result in less than a full recovery to the insured. Porter v. Tabern, 1999 WL 812357 (Ohio App. 1999) (unreported decision). This case established the use of the Made Whole Doctrine.

A reimbursement agreement between an insured and an insurer clearly and unambiguously avoids the make-whole doctrine if the agreement establishes both that the insurer has a right to a full or partial recovery of amounts paid by it on the insured’s behalf and that the insurer will be accorded priority over the insured as to any funds recovered (N. Buckeye Edn. Council Group Health Benefits Plan v. Lawson, 814 N.E.2d 1210 (Ohio 2004)).

Common Fund

Districts are split, some say that attorney’s fees cannot be recovered since the insurer has an independent subrogation right against the tortfeasor that the insured’s litigation did not close (Wiswell v. Shelby Mutual Ins. Co., 515 N.E.2d 1214 (Ohio Ct. App. 6^th 1986), while others say that attorney’s fees can be recovered because of unjust enrichment (Thatcher v. Sowards, 2000 WL 310239 (Ohio Ct. App. 4^th Dist. 2000).

Collateral Source Rules

Ohio Rev. Code Ann. §2315.20 governs

Evidence of collateral benefits is admissible unless the source of the benefits has a right of subrogation

Hospital Lien Act

Ohio does not have a hospital lien act

Medicaid Statute

• Ohio Rev. Code Ann. §5160.37(A): the department has a right to reimbursement, but the clam cannot exceed the amount of medical assistance paid by the department on behalf of the recipient
• Reduction/Cap: Ohio Rev. Code Ann. §5160.37(G)(2): Reasonable attorney’s fees, not to exceed 1/3 of the total judgment, plus costs and other expenses, shall first be deducted from the total judgment. After, the department shall receive no less than ½ of the remaining amount, or the actual amount of medical assistance paid, whichever is less
• Ohio Rev. Code Ann. §5160.37(C): The benefits recipient must provide written notice to the department of a pending action against a liable third party not less than 30 days after initiating the action