Washington Subrogation Laws

State Subrogation

YES, equitable and contractual (Fisher v. Aldi Tire, Inc. 902 P.2d 166 (Wash. Ct. App. 1995)).

Made Whole Doctrine

YES, can contract around (Fisher v. Aldi Tire, Inc. 902 P.2d 166 (Wash. Ct. App. 1995) and Thiringer v Am Motors Ins Co, 91 Wash 2d 215; 588 P2d 191 (1978)). The Thiringer case states that you can contract around the Made Whole Doctrine.

Common Fund

YES, insurer must pay share (Hamm v. State Farm Mut. Auto. Ins. Co., 88 P.3d 395 (Wash. Ct. App. 2004))

Nuance: Common law rule that insurer must share in expenses incurred by insured only if insurer was benefited by insured’s legal work applies only in absence of insurance policy language addressing insurer’s responsibility for such attorney fees (Harwood v. Group Health Northwest, 970 P.2d 760 (Wash. Ct. App. 1999))

Collateral Source Rule

Applies, evidence not admissible

Hospital Lien Act

• Wash. Rev. Code §60.44.010: a hospital has a lien upon any claim for the value of service, together with costs and such reasonable attorney’s fees as the court may allow, incurred in enforcing such lien
  • Cap: the lien cannot exceed 25% of the amount of a judgment/settlement
• Wash. Rev. Code §60.44.020: no person shall be entitled to the lien unless such person:
  • In an effort to inforce the lien, either attempts to enforce the lien on his or her own behalf or designates a collection agency
  • Discloses the person’s use of liens as part of the person’s billing and collection practices; and
  • Within 20 days of injury or care, if settlement has not been accomplished, then any time before such settlement, files with the county auditory a notice of the claim
• No mention of attorney’s fees

Medicaid Statute

• Wash Rev. Code §43.20B.060:
  • the department shall have a lien upon any recovery to the extent of the value of the assistance paid
  • the lien shall become effective upon filing with the county auditory
  • if the department will get a recovery through an action brought by the recipient, the amount paid to the department shall bear its proportionate share of attorney’s fees and costs. The determination of the proportionate share shall be based upon:
    • the fees and costs approved by the court; or
    • the written agreement between the attorney and client which establishes fees and costs
  • Wash Rev. Code §43.20B.070:
    • Recipient must notify department when filing a claim against a third party
  • Wash Rev. Code §43.20B.050: the department can negotiate the lien, any compromise of the lien must have the express written consent of the secretary