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Maximizing Subrogation Recovery

Strategies for work-related slip-and-fall cases.

July 26, 2012 Photo
Slip-and-fall accidents present special challenges for workers’ compensation subrogation recovery. Because almost everyone has had some experience with slipping or falling, there is a general perception that slips and falls are partly the fault of the person injured or that the injury was merely an accident and not the fault of anyone.

Consequently, juries can be tougher in making determinations of liability and damages in slip-and-fall cases. Moreover, unlike other personal injury actions in which the injury-causing instrumentality can be preserved, the conditions that often facilitate a slip and fall can change quickly, jeopardizing potential recovery in any case that is not properly documented and investigated immediately after its occurrence.

Maximizing subrogation recovery in any slip-and-fall case requires an understanding of the legal principles giving rise to the claim, identification of the potential at-fault parties, and an early investigation of the injury incident.

Know the Law

Workers’ compensation subrogation rights are created through individual workers’ compensation statutes in each state. Accordingly, there is wide variation regarding the manner in which notice of the subrogation lien must be tendered and how and when the workers’ compensation subrogation lien can be asserted, pursued, and resolved through trial or settlement.

Some states mandate a waiting period before the workers’ compensation carrier can initiate a lawsuit against an at-fault party for lien recovery, while others allow the carrier to initiate suit anytime.

Additionally, each state has its own laws regarding how the subrogation lien claim can be resolved, with some states allowing the lien claim to be separately resolved with the at-fault party and others mandating a global resolution of all claims.

Finally, each state has its own separate statutes of limitation that govern any tort claims against the alleged at-fault party. Maximizing subrogation recovery in any slip-and-fall case requires an awareness and understanding of the individual state’s laws that will govern your lien recovery. Consultation with legal counsel in this regard is recommended.

Jurisdiction Considerations

Slip-and-fall injury claims typically are based on a negligence theory. To establish liability for negligence, one must generally establish a legal duty, a breach of that duty through negligence, and damages proximately caused by that breach.

As a general rule, landowners have a duty of care to entrants they invite on their land. A possessor of property has a continuing duty to inspect the property to identify dangerous conditions and either repair them or provide appropriate warning about them to entrants. Reasonable care must be exercised to discover hazards through the inspection of one’s premises.

Generally, it must be shown that a defendant had either actual or constructive knowledge of a hazard and of its capacity to foreseeably produce injuries of the type sustained by the plaintiff. If an injury could reasonably have been foreseen from the act or omission of a property owner, possessor, or agent, a duty generally exists and will be enforced under principles of the law of negligence.

On the other hand, entrants to the land of another have a duty to exercise reasonable care for their own safety while on the premises. An entrant is entitled to assume that proper care has been exercised to make the premises safe, and she is not required to be alert for unusual circumstances or to use extraordinary caution.

If a hazard would not have been detected by the exercise of reasonable care or is unavoidable in making a necessary entry onto property, the entrant’s comparative fault generally will be minimal. However, when a hazard is “open and obvious,” the plaintiff may be guilty of comparative fault or assumption of the risk, which may reduce or bar recovery.

These are general features of the negligence law governing slip-and-fall cases across the U.S. Investigation should be undertaken of the specific laws of the jurisdiction governing your subrogation case to determine the precise nuances that will apply to your recovery effort.

Range of At-Fault Parties

The at-fault party in any slip-and-fall case is not necessarily limited to the owner of the property. Often, the party in control of the premises is a tenant who is leasing space from the property owner.

Tenants often contract property maintenance (e.g., snow removal, cleaning of public spaces) to third-party maintenance contractors. Property owners, tenants, and third-party maintenance contractors often have contractual indemnification and additional insured agreements governing their relationships with one another.

Sometimes, the contractual indemnification and additional insured agreements can actually run between the workers’ compensation carrier’s insured employer and the alleged third-party tortfeasor. Additionally, slip-and-fall claims can invite third-party claims of employer liability by the alleged third-party tortfeasor against the insured employer in those states recognizing the legal doctrine.

Additional insured agreements, where enforceable, can complicate subrogation recovery because the party against whom the workers’ compensation carrier is attempting to subrogate is also a party that the insured employer has added to its liability coverage policy and for which it is potentially legally responsible. Under those circumstances, the insured employer who sees the potential for its liability policy to be triggered through its workers’ compensation subrogation carrier’s lien claim may attempt to thwart the subrogation claim.

Some states also have anti-subrogation laws that limit or prevent a workers’ compensation subrogation lien claim when the lien recovery would be procured through the insured employer’s policy of insurance through another carrier.

Contractual Indemnification Agreements

Although many states limit or deem unenforceable contractual indemnification agreements by a party seeking indemnification for damages caused by its own negligence, contractual indemnification agreements seeking indemnification for another party’s negligence are often upheld.

Given the relationship between the employee’s insured employer, the premises owner/tenant, and the third-party maintenance provider, contractual indemnification agreements are often an issue in slip-and-fall cases. Where the agreement is between multiple alleged at-fault parties, the contractual indemnification agreement can result in finger-pointing and additional motions between the alleged at-fault parties that can bog down the case and workers’ compensation subrogation recovery efforts.

Where the contractual indemnification agreement exists between the workers’ compensation carrier’s insured employer and a third-party maintenance provider (e.g., a slip and fall on the insured employer’s premises through the alleged negligence of the third-party maintenance provider), a contractual indemnification agreement may provide an additional non-subrogation-based theory of recovery against the alleged at-fault party.

A number of jurisdictions recognize employer liability as a legal concept that can adversely impact potential subrogation recovery through lien reduction or cash contribution toward the tort damages awarded. Potential employer liability should be evaluated in any case that takes place in a jurisdiction recognizing that legal doctrine.

Strategies at the Accident Scene

The injured worker should be contacted as soon as possible after the accident to determine her recollection of the event, how it occurred, any witnesses, and the injured worker’s reporting of the incident to the alleged at-fault party. Information obtained should include a full description of what the injured worker was wearing at the time of the injury, including any footwear or eyeglasses.

The injured worker also should be questioned about the circumstances leading up to the injury, the injury event, and the circumstances following the injury. This should include a discussion of the applicable conditions at the time of the injury, including weather, lighting, temperature, or applicable internal conditions.

The injured worker should also describe the mechanism of the slip and fall and the precise injuries and symptoms sustained. Where possible, photographs should be taken to document the injury for later use in the litigated case.

Communications with the injured worker at this stage should be documented through detailed notes, marked “work-product, generated in anticipation of litigation,” rather than through recorded or signed statement.

Any witnesses identified should be questioned about the injury incident, including what they observed and the injured worker’s behavior before and after the incident. Information should be obtained regarding any statements or discussions the witnesses may have had with others regarding the injury. To the extent possible, this information should be captured through recorded or written statements. Maintenance logs for the premises should be obtained. If possible, the investigation of a slip-and-fall case should include travel to the accident scene as soon as possible after the injury event. The scene should be photographed and measured.

Employers should counsel employees to document and photograph non-employer-controlled injury sites with cell phone cameras before leaving the scene of an accident, to the extent possible.

Often, premises on which slip-and-fall accidents occur are controlled through surveillance cameras. Early investigation should include determining whether potential footage exists and retention/subpoena of it as soon as possible after the injury incident. Often, companies hold surveillance footage for only a few days after it is recorded, making it critical that this be one of the first areas of investigation in a slip-and-fall case. A request should be made to the alleged at-fault party to preserve any footage that may exist within hours of a slip-and-fall incident.

Also, where weather is a potential factor in causing a slip-and-fall injury, weather reports for the 24 hours before and after the injury incident should be obtained.

Subrogation recovery efforts must ultimately be adapted to the unique circumstances of each case and the information contained in this article is by no means exhaustive. However, recovery is most often maximized by developing an understanding of the specific laws governing your subrogation case, identification of the range of potential at-fault parties, and conducting an early investigation of the injury incident.  

Joseph M. Nemo, III, left, and Blake Duerre are shareholders and co-chairs of the subrogation department at Arthur Chapman Kettering Smetak & Pikala, P.A., a member firm of CLM. They can be reached at www.arthurchapman.com.

About The Authors
Multiple Contributors
Joseph M. Nemo, III

Joseph M. Nemo, III, is a shareholder and co-chairs the subrogation department at Arthur Chapman Kettering Smetak & Pikala, P.A., a member firm of CLM. He can be reached at arthurchapman.com.

Blake Duerre

Blake Duerre is a shareholder and co-chair of the subrogation department at Arthur Chapman Kettering Smetak & Pikala, P.A., a member firm of CLM. He can be reached at arthurchapman.com.  

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