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

Asked over 2 years ago - 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)

  1. Craig A. Post

    Contributor Level 17

    7

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    Answered . 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.

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  2. Joseph Jonathan Brophy

    Contributor Level 20

    8

    Lawyers agree

    Answered . 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... more
  3. Jeffrey Mark Adams

    Contributor Level 20

    7

    Lawyers agree

    Answered . 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.

  4. Christian K. Lassen II

    Pro

    Contributor Level 20

    5

    Lawyers agree

    Answered . Discuss the Fasso case with your lawyer. Good luck.

    Philadelphia Personal Injury Lawyer. www.InjuryLawyerPhiladelphia.com

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