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Statutorily Excluded Claims – Punitive Damages
Indiana Wisconsin Ins. Sec. Fund v. Labor and Indus. Review Comm’n, 2005 WI App 242,
288 Wis.2d 206, 707 N.W.2d 293. Wisconsin Labor and Industry Review
Commission ordered employer to reimburse worker’s health insurance carrier
after finding worker’s injury compensable. Where employer’s workers’
compensation insurance carrier is insolvent, Wis. Stat. § 646.31(11), which
provides that a subrogated insurer may not assert a claim against the insured of
an insurer in liquidation, precludes order mandating insured employer
reimburse worker’s subrogated insurer.
Missouri
Pannel v. Missouri Ins. Guar. Ass’n, 595 S.W.2d 339 (Mo. Ct. App. 1980). The
court ruled that the state statute clearly insulated the Association from claims of
liability for exemplary damages.
Statutorily Excluded Claims – Amounts Due Other Insurers as Subrogation Recoveries or
Otherwise
California
Florida
E.L. White, Inc. v. City of Huntington Beach, 138 Cal. App. 3d 366, 187 Cal. Rptr.
879 (1982). The court held that the insurer could not subrogate, as precluded by
state statute.
Don Reid Ford, Inc. v. Feldman, 421 So.2d 184 (Fla. Dist. Ct. App. 1982), after a
Fund pays a claim, it has the right to subrogate the claim as if it were the insurer,
subject to the statute of limitations.
Cordani v. Roulis, 395 So.2d 1276 (Fla. Dist. Ct. App. 1981). The court rejected an
attempt by a solvent insurer to subrogate against the insured of an insolvent
insurance company.
Illinois
Pierre v. Davis, 165 Ill.App.3d 759, 520 N.E.2d 743 (1987). The court held that the
state statute did not intend that the Fund would allow a solvent insurer to be
reimbursed by Fund proceeds.
Nebraska Alsobrook v. Jim Earp Chrysler‐Plymouth, Ltd., 274 Neb. 374, 740 N.W.2d 785
(2007). Car owner filed lawsuit against mechanic after a retaining nut
disconnected from the connection post on his car causing him to crash. The car
owner filed a claim with his own insurer, who paid the claim less the $1,000
deductible. After this payment, the car owner filed a lawsuit against the
mechanic seeking damages which included the $1,000 deductible. The car
owner’s attorney filed a motion with the Nebraska Property and Liability
Insurance Guaranty Association (the “Association”) asserting that Property and
Liability Insurance Guaranty Association Act (the “Act”) provided for payment
of certain claims against insolvent insurance companies. The Association
determined that the vehicle owner’s subrogation claim was not a covered claim
under the Act. The Act provided that a covered claim could not be any amount
due any insurer pursuant to a subrogation claim. The Supreme Court of
Nebraska held that it is clear that the claim is not a “covered claim” as that term
is defined in the Act, and that the language of the Act reveals that the
Legislature intended that the Act protect not only the claimants making claims
on the Association, but also the insured of an insolvent insurance company.
New Jersey
Sandson’s Bakery v. Glover, 162 N.J.Super. 225, 392 A.2d 640 (1978). The court
rejected an attempt by a solvent insurer to subrogate against the insured of an
insolvent insurance company.