On November 12, 2009, section 5-335 was added to the New York General Obligations Law (GOL). That day I blogged about that bill and that section here. I quoted the new statutory sections, listed their effective dates, and explained what types of claims were and were not encompassed by the new law.
Just recently a New York auto insurer client contacted me to report that intercompany arbitrators have been routinely rejecting the company's med pay intercompany subrogation claims based on GOL § 5-335. Reportedly, the arbitrators were citing that statute for the proposition that it statutorily precludes all such claims. It does not.
Assuming there has been no settlement between the insured and the negligent party against whom the auto insurer is subrogating (and be sure to verify that before filing your intercompany arb), your subrogation departments should include the following in their intercompany arb submissions:
Please note that New York General Obligations Law § 5-335(a) does not apply to preclude this subrogation claim. That statute only applies to situations in which the injured person has entered into a settlement with the negligent party. That statute states, in pertinent part:
Except where there is a statutory right of reimbursement, no party entering into such a settlement shall be subject to a subrogation claim or claim for reimbursement by a benefit provider and a benefit provider shall have no lien or right of subrogation or reimbursement against any such settling party, with respect to those losses or expenses that have been or are obligated to be paid or reimbursed by said benefit provider (emphasis added).There has been no such settlement, and the respondent’s insured is not a settling party within the meaning of section 5-335(a). Thus, General Obligations Law § 5-335(a) does not apply to this matter to bar or preclude recovery of this subrogation claim.