subrogation - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. // Unlock Full Recovery: Using Subrogation Assignments to Your Advantage

Jeffrey P. Gale, P.A. — Wed, 10 Dec 2025 18:05:39 GMT

A core responsibility of lawyers representing clients with personal injury or property-damage claims is to maximize recovery. Conventional wisdom holds that recovery is limited to actual damages – the plaintiff cannot collect more than the loss suffered.

Florida law, however, provides a pathway to expand recovery when subrogation, reimbursement, or contribution rights exist.

In Despointes v. Florida Power Corporation, 2 So. 3d 360 (Fla. 2d DCA 2008), the insured had received $224,567.66 from her own insurer, CIGNA, for fire damage. Through an assignment of CIGNA’s subrogation rights, she was able to recover the same amount against a third party allegedly responsible for the loss caused by a defective surge protector. The trial court initially barred recovery, but the Second District reversed, noting that allowing the tortfeasor to avoid liability “because the victim was prudent enough to obtain insurance” would be unjust.

Assignments of subrogation or contribution rights are well-established under Florida law, as reflected in § 768.76(1), Fla. Stat., and cases like Robarts v. Diaco, 581 So. 2d 911 (Fla. 2d DCA 1991), where defendants assigned their rights of contribution to the plaintiff.

The key takeaway for practitioners: when a right of subrogation or reimbursement exists, consider obtaining an assignment. This strategy can unlock recovery beyond the client’s direct damages.

A word of caution: assignments often come at a cost. The assignor is relinquishing something of value, which may require negotiation, such as accepting a reduced settlement. In Despointes, while the opinion does not specify, the insured may have agreed to a lesser amount from CIGNA in exchange for the assignment.

By strategically leveraging subrogation or contribution assignments, plaintiffs can prevent tortfeasors from benefiting from the plaintiff’s foresight in obtaining insurance and potentially maximize overall recovery.

**********************

Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. /// Reimbursement Rights of Health and Disability Insurers in Florida Personal Injury Cases

Jeffrey P. Gale, P.A. — Tue, 10 Jun 2025 16:09:01 GMT

It is common for health and disability (lost wages) insurance carriers to pay benefits to their insureds who are injured due to someone else’s negligence. Many of these policies include reimbursement provisions allowing the insurer to recover payments from any personal injury settlement or judgment obtained by the insured.

How Much Must Be Repaid?

The reimbursement amount depends on two key factors:

Policy Language
The Source of the Settlement or Judgment

Most policies state that the insurer is entitled to full reimbursement from the insured’s recovery—often before the insured or their attorney receives anything. However, when the recovery is from a tortfeasor (the at-fault party), Florida law may limit the insurer’s rights.

Florida Statute § 768.76(4): The Governing Rule

When recovery is made from a tortfeasor, Florida Statute § 768.76(4) controls, regardless of what the insurance policy says. This was confirmed in Ingenix v. Ham, 35 So. 3d 949 (Fla. 2d DCA 2010). In that case, United Healthcare sought full reimbursement after paying most of the decedent’s medical bills. However, the court limited reimbursement based on the statutory formula in § 768.76(4), stating:

“A provider of collateral sources…shall have a right of reimbursement…if such claimant has recovered…from a tortfeasor.”

A Different Outcome: When the Statute Doesn’t Apply

In contrast, Travelers v. Boyles, 679 So. 2d 1188 (Fla. 4th DCA 1996), involved a settlement with an uninsured motorist (UM) carrier—not a tortfeasor. The court held that § 768.76(4) did not apply and allowed the health insurer to pursue full reimbursement under its policy terms. The statute wasn’t triggered because a UM carrier is not considered a tortfeasor under the law.

Importantly, the Ingenix court emphasized that the Travelers decision does not mean policy language trumps the statute when § 768.76(4) does apply.

When Both Standards Apply

In certain cases—such as auto accidents involving inadequate bodily injury (BI) coverage and a payment from an underinsured motorist (UIM) policy—both Ingenix and Travelers may apply. Reimbursement rights may then be split between the statutory formula (for the tortfeasor’s share) and policy language (for the UIM portion).

**************************************

Contact us at 305-758-4900 or by email (kgale@jeffgalelaw.com and jgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Florida PIP Payments in Uber Crashes

Jeffrey P. Gale, P.A. — Fri, 30 May 2025 16:41:32 GMT

Despite having many potential sources of payment for medical expenses in ride share-related crashes, Uber riders sometimes end up holding the bag.

The most common payment sources are PIP, MedPay, health insurance, Medicare, Medicaid, and bodily injury liability insurance.

With a few exceptions, every owner or registrant of a motor vehicle required to be registered and licensed in Florida must maintain PIP insurance. See Florida Statute 627.733. PIP, which applies without regard to fault, covers medical expenses and lost wages. Most Florida policies limit PIP coverage to $10,000 and apply deductibles.

One of the benefits of the ride share industry is that people can go without owning a vehicle. However, PIP is not automatically available to those PIP passengers who live in Florida and do not reside with a relative who maintains PIP insurance. Likewise, other medical insurance may not be available.

In some instances, ride share drivers have PIP coverage for passengers. The driver must inform his carrier of his ride share work and pay a premium for ride share coverage. If the driver fails to do this, the carrier will deny coverage. Uber is not required to maintain PIP in Florida, so it doesn’t.

Uber maintains bodily injury liability (BI) coverage and MedPay under its Florida insurance policies. Contrary to popular belief, it does not maintain UM/UIM coverage. Uber’s BI only applies if its driver is at-fault. It covers non-economic damages such as pain and suffering and economic damages such as income loss and medical expenses. Like PIP, MedPay applies without regard to fault. If PIP isn’t available or is exhausted, it will cover up to $5,000 in medical expenses. Unlike PIP, it must be reimbursed from BI payments (its own or from third-parties).

Health insurance, Medicare, and Medicaid may also cover medical expenses. Like MedPay, they must be reimbursed from BI money.

Medical expenses are costly. Steps can be taken to limit personal exposure to those expenses.

**************************************

Contact us at 305-758-4900 or by email (kgale@jeffgalelaw.com and jgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Comparative Fault Not Part of Manfredo Formula Equation

Jeffrey P. Gale, P.A. — Sun, 21 Jul 2024 23:18:24 GMT

Not infrequently, both a workers’ compensation case and a personal injury liability case will arise from the same accident. For example, a construction site supervisor involved in a motor vehicle crash while traveling to Home Depot for supplies can pursue workers’ compensation benefits from the employer and civil liability damages from the at-fault party.

Florida Statute 440.39(2) provides that “the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor.” This means that the employer and its workers’ compensation insurance carrier are entitled to recover a portion of their expenditures from money the injured employee receives from the at-fault third party.

Typically, it is not a dollar-for-dollar recovery. The formula for the recovery is contained in section 440.39(3)(a).

The formula’s interpretation has been challenged. Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990) put much of the uncertainty to rest. Manfredo explained that the percentage of the employer/carrier’s recovery is determined as follows:

Step 1. Establish the “full value” of the liability case.

Step 2. Reduce the actual recovery by attorney’s fees and costs to reach a net recovery.

Step 3. Divide the net recovery by the full value.

Step 4. The result in Step 3 is the percentage of the subrogation lien the employer/carrier is allowed to recover.

Let’s say the employer/carrier’s subrogation lien totals $100,000, and the net recovery divided by the full value is 20%, the employer/carrier’s recovery is $20,000.

Determining full value is an evidentiary matter. Experts, usually seasoned personal injury lawyers, give their opinions based on the facts of the particular case and their experience. The judge decides what evidence to accept.

Florida is a comparative fault state. See Florida Statute 768.81. This means that a tortfeasor only pays for damages in proportion to his or her percentage of fault. For example, if damages are $1,000,000, but the tortfeasor is only 60% at fault for causing the accident which has resulted in the damages, the at-fault party’s share is limited to $600,000.

Interestingly, comparative fault cannot be argued to reduce full value. See City of Hollywood v. Lombardi, 770 So. 2d 1196 (Fla. 2000) and Luscomb v Liberty Mut. Ins. Co., 967 So. 2d 379 (Fla. 3rd DCA 2007).

Another common factor preventing full recoveries is limited insurance coverage. Very few individuals maintain large bodily injury and uninsured/underinsured motorist insurance policy limits — I consider $1 million and above to be large. Damages usually exceed coverage limits.

While the cases cited in the section above discussing comparative fault do not explicitly say that limited coverage can be argued to reduce the full value assessment, it is my opinion that it cannot. There is nothing in the statute or the cases interpreting the statute saying it can. The language of the statute suggests that it cannot. Section 440.39(3)(a) contains the following language:

“[T]he employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, except, if the employee or dependent can demonstrate to the court that he or she did not recover the full value of damages sustained, the employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, a percentage of what it has paid and future benefits to be paid equal to the percentage that the employee’s net recovery is of the full value of the employee’s damages.”

Moreover, the Lombardi case involved a compromised policy limits settlement of $100,000 in which the trial court calculated full value at $250,000. The insurance company did not argue that full value should be limited to the $100,000 settlement.

*********************

Contact us at 305-758-4900 or by email to learn your legal rights.