One of the most significant cases handed down by the Court of Appeals in 2009, Fasso v. Doerr, 12 N.Y.3d 80 (2009), was notable in part because it did not resolve important issues regarding a health insurer’s rights to intervention and subrogation. The war that has been waged in this realm, which centered on who would bear the cost of plaintiff’s medical expenses sustained by reason of defendant’s negligence, was primarily between the plaintiff’s health insurer and the defendant’s liability insurer, with the plaintiff also sustaining casualties. While the resolution of these matters remains subject to conflicting Appellate Division case law, the Legislature passed a piece of blockbuster legislation, which became effective on Nov. 12, 2009, that will likely silence most of the debate in this area, leaving both plaintiffs and liability insurers very content with the outcome.
This article will begin with a brief description of the intervention/subrogation problem, which arises to some degree in most substantial personal injury cases. We will then examine the outcome of the Court’s decision in Fasso, describing the rights of the parties and their insurers after the decision. Finally, we will outline and apply the new law to the Fasso facts to ascertain the broad impact of this legislation.
The Problem
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