Insurance Subrogation: Glossary
The principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy” State Farm Mutual Automobile Insurance Co. vs. Troy D. Cox, 873 N.E.2d 124 (Ind.App. 2007).
The legal doctrine by which any fault attributable to the plaintiff diminishes proportionately the amount of compensatory damages awarded. I.C. 34-51-2-5. In Indiana, if a plaintiff is found to be 51% or more at fault, a judgment will be entered in favor of the defendant. I.C. 34-51-2-6. In the event that the plaintiff is found to be exactly 50% at fault, judgment must be entered in favor of the plaintiff, and the damages sought reduced by 50%. Indiana Pattern Jury Instructions, Instruction No. 6.03(A), Comparative Fault – One Plaintiff/One Defendant. In Baker v. Osco Drug, Inc., 632 N.E.2d 794 (Ind.App. 1994), the court examined the legislative intent in adopting comparative fault. It determined that by adopting comparative fault, the legislature intended to eliminate other doctrines, such as “incurred risk”, which could have acted as a complete bar to recovery. at 797.
The legal doctrine whereby any fault attributable to the plaintiff acts as a complete bar to recovery. In Indiana, general tort claims are not subject to this doctrine. However, claims against Indiana governmental entities are subject to the defense of contributory negligence. Therefore, under Indiana law, where an Indiana governmental entity is the defendant, the plaintiff must be totally without fault and must prove that the defendant was 100% at fault for the damages. This is due to the fact that governmental entities were exempted from the comparative fault doctrine. I.C. 34-51-2-2. In Carter v. Indianapolis Power & Light Co., et al., 837 N.E.2d (Ind.App. 2005) the court reinforced that contributory negligence applies to governmental agencies. Carter, suing on behalf of a passenger who was killed in a car, which was being driven recklessly, filed suit against multiple defendants including Marion County, Indiana. The court ruled that by not objecting to the driver’s conduct, the passenger had assumed the risk inherent in such an activity, which contributed to his injuries. Therefore, Carter was barred from recovery from Marion County.
Tort Claim Notice
In Indiana, prior to filing a lawsuit in tort against the State, a written notice of the claim must be filed with the Attorney General or the state agency involved within 270 days of the date of loss. Filing the notice with the incorrect state agency will not act as a bar to the claim so long as the plaintiff reasonably attempts to ascertain the identity and serve notice on the correct agency. I.C. 34-13-3-6.
Further, prior to filing a suit against any other Indiana political subdivision (such as a city, town, county, school corporation, library, sanitary district, or public hospital), a notice of the claim must be filed with either the governing body of that subdivision or the Political Subdivision Risk Management Commission within 180 days after the date of loss. I.C. 34-13-3-8.
In Indiana, an injured party may file a tort action against the party who caused the alleged injuries. If the injured party’s insurance carrier has paid its insured, that carrier also has a cause of action in subrogation against the third party. However, if the injured party’s damage award is reduced due to comparative fault or for reasons of uncollectability of the full value, then the subrogation lien shall be diminished in the same proportion as the injured party’s recovery. I.C. 34-51-2-19. Under the prior statute, I.C. 33-4-33-12, this doctrine did not apply to workers’ compensation liens. However, under the current statute, the language exempting workers’ compensation was eliminated, meaning that the made whole doctrine now applies to workers’ compensation as well. Further, this reduction applies to all recoveries, whether they be through judgment or settlement. Department of Public Welfare, State of Indiana v. Couch, 605 N.E.2d 165 (Ind.1992).