Governor Signs Anti-Subrogation Law

NYSTLA achieved an extraordinary legislative victory when Governor Paterson signed into effect new General Obligations Law §5-335 on November 12, 2009. This law now bars any benefit provider, such as an HMO or private health insurer, from seeking any reimbursement or subrogation against any settling party to a personal injury or wrongful death action with respect to benefits it may have paid or is obligated to pay. The only exceptions are for claims for which there is a statutory right of reimbursement (e.g., Medicaid, Medicare, workers' compensation) and subrogation claims to recover excess no-fault benefits.



This new law directly overrules two problematic Court of Appeals decisions, Teichman v. Community Hosp. Of Western Suffolk, 87 N.Y.2d 514 (1996), and Fasso v. Doerr, 12 N.Y.3d 80 (2009), to the extent they recognized non-statutory rights for reimbursement or subrogation against a settling party.



Moreover, this law takes effect immediately and applies both to future actions and all pending cases that have not settled or gone to trial as of today.



This law is a major victory in protecting our injured clients against the proliferation of unwarranted claims for windfalls by way of subrogation and reimbursement asserted by health insurers in recent years. It will significantly facilitate the prosecution of our cases and remove major obstacles to their resolution.



The bill also eliminates the exception under CPLR §4545 that barred a public employer sued by its employee from reducing a future lost earnings award by the amount of future pension benefits that plaintiff will receive (Iazzetti v. City of NY, 94 N.Y.2d 183, 701 N.Y.S.2d 332 [1999]). Under this new law, a public employer sued by its employee will now be entitled to the same collateral source setoff for future benefits as all other defendants are already entitled to receive. Even here, NYSTLA effectively rebuffed the City of New York's overreaching attempts to have the law changed not only for new actions but also all those now pending. Thus, unlike the new GOL §5-335 above, this amendment to CPLR §4545 applies only to actions commenced on or after its effective date.



We salute the leaders and officers of NYSTLA who gave so much of their time and effort to arrive at this superb achievement. Those labors can especially be appreciated from the fact that the bill was passed with something as rare in Albany as it is in Washington – almost unanimous bipartisan support. The vote was 135-0 in the Assembly and 59-2 in the Senate.



Read NYSTLA's memorandum in support of the legislation here.



Click here to read news article on anti-subrogation in the New York Law Journal by NYSTLA Board Members Thomas A. Moore and Matthew Gaier.





Declaratory Judgement Bill Signed



In July of 2008, Governor David Patterson signed a NYSTLA supported bill into law that provides for declaratory judgment action against an insurer directly where a claim is brought for personal injury or wrongful death against another. This bill: (1) permits a party suing an insured in a personal injury or wrongful death case to commence a simultaneous declaratory judgment

action against the defendant's insurer, in limited circumstances, to challenge the insurer's denial of coverage based on the failure to provide timely notice; and (2) prohibits certain liability insurers from denying coverage for a claim based on the failure to provide timely notice, unless the insurer suffers prejudice as a result of the delayed notice.



Text of A.11541/S.8610





Jury Diversity

On April 30, 2009, the Assembly Standing Committees on Judiciary and Codes convened a hearing on Assembly Bill 2374, which proposes to expand and update source lists from which jury pools are created, and to retain demographic data including race, ethnicity, age and sex of people who participate in jury pools.



NYSTLA supports this bill because we are deeply committed to ensuring that jury pools become more diverse and are more representative of the communities from which they are drawn. We believe that having greater jury diversity brings a larger range of different viewpoints and different life experiences into the jury room, some of which might not otherwise be considered. We believe that more views considered the more enlightened the debate and more thoughtful the deliberation in jury rooms, which increases the likelihood of a fair and just verdict.




Jury Diversity Fact Sheet
 




Child Victims Act

The New York State Legislature is considering bills, A.2596 and S.2568, which would temporarily lift the statute of limitations for lawsuits alleging the sexual abuse of children. The current time limit is five years after the victim turns 18. Under the proposed changes, people claiming they were sexually abused as children would be given a one-year exemption from the statute of limitations. At the year's end, time limits on such claims would be restored, but with a wider window: Instead of a five-year period after turning 18, victims would have 10 years to file claims. Opponents of such unlimited time frames of liability contend that decades-old memories of childhood events are not reliable.



Religious Leaders Battle Abuse Bill in New York NY Times