Skip to main content

Will the " Made Whole Doctrine " apply in my personal injury claim ?

Auburn, NY |

2 yrs. ago, my wife was injured in an mva. her injuries include a fractured wrist, a fractured ankle. 3 herniated disks in the cervical spine, one of which has been fused and she still needs another surgery on another. her no-fault carrier ( Kemper ) has paid out $100,000 in medical and lost wages because we purchased apip coverage. now Kemper Insurance wants to subrogate her third party settlement . my wife's damages far out way the $100,000 liability limits available in her claim and when you take out 1/3 for her attorney fees it will not even come close to what she deserves. My question is this: Does the " Made Whole Doctrine " for New York apply in her case ? If so how does that process work ? Sum/Um does not apply neither does ERISA laws. Thank You for your consideration.

Attorney Answers 4

Posted

The "made whole" doctrine or equitable subrogation is alive in NY. See, Fasso v. Doerr, 12 NY3d 80 (2009) and cases thereafter. The extent to which it may appy in your case is not an easy question to answer based solely on the information provided. You should discuss Fasso and GOL Sec. 5-335 with your attorney to determine if the carrier's subrogation rights still exist. Good luck.

Disclaimer- The information you obtain at our web-site or through postings on such sites as this is not, nor is it intended to be, legal advice. You should consult an attorney for specific advice regarding your individual situation. Any response given here is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response may change appropriately.

Mark as helpful

7 lawyers agree

Posted

Your attorney is the person who must navigate this process. Auburn does have a very able firm that I am acquainted with. If it is them, you have very competent attorneys. Good luck.

Mark as helpful

7 lawyers agree

Posted

I agree with Jeff Adams. Any competent personal injury attorney should be able to apply the "made whole" doctrine to the facts of your case to reduce or eliminate any subrogation claim. Since you are represented it would not be appropriate for attorneys on Avvo to second guess your lawyers' judgment.

Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.

Mark as helpful

8 lawyers agree

Posted

Discuss the Fasso case with your lawyer. Good luck.

Philadelphia Personal Injury Lawyer. www.InjuryLawyerPhiladelphia.com

Mark as helpful

5 lawyers agree

Employment topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics