Chapter 140 of the Texas Civil Practice & Remedies Code is intended to limit the subrogation rights of an injured person’s health insurance provider. When this statute was first enacted in 2014, an esteemed personal injury attorney told me that the new law was simple, “Everyone gets a third of the gross settlement. The insurance company gets a third, the attorney gets a third, and the client gets a third.” That certainly sounded simple enough. It was a couple of months later, when applying the new statute to one of my cases, that I realized it was not that simple. In fact, the “simple” explanation only caused me to question my own analysis of the law.
After reading Chapter 140 a dozen times and reading a handful of blogs, articles, and CLE papers, I finally realized that all of the commentators were assuming that the plaintiff’s attorney took the case on a 30% contingency. While that is a safe assumption, Chapter 140 does not actually limit an attorney’s contingency fee to 30%.
You can review the actual wording of Chapter 140 HERE, but allow me to restate the basics in plain language:
Applicability of Chapter:
- Plaintiff is injured by Defendant.
- Plaintiff is insured by an insurance company described in the statute (there are exceptions).
- Insurance pays for healthcare resulting from injury.
- Insurance company has subrogation rights.
- Plaintiff obtains a recovery from Defendant (i.e., the case settles).
Calculating Insurance Company’s Portion:
- When Plaintiff is not represented by an attorney:
- Insurance company gets lesser of:
- 1/2 gross recovery; or
- Total cost of benefits paid
- When Plaintiff is represented by an attorney:
- Insurance company gets lesser of:
- 1/2 gross recovery, minus 1/3 of Insurance Company’s share for the attorney and minus legal expenses; or
- Total cost of benefits paid, minus 1/3 of Insurance Company’s share for the attorney and minus legal expenses
- Insurance company gets lesser of:
- Insurance company gets lesser of:
As stated previously, these are just the basics; there is a lot more in the statute. However, this explanation is intended to get past the overly simplistic 1/3, 1/3, 1/3 explanation that was previously given to me.
Let’s apply this explanation to an example:
Paul Plaintiff is injured by Dan Defendant. Paul’s insurance company pays $50,000 for his healthcare resulting from the injury and asserts its right to subrogation under Paul’s policy. Paul hires an attorney. Paul agrees to pay his attorney 40% of his gross recovery plus expenses. Paul’s attorney settles Paul’s claim against Dan for $90,000.
If my friend were correct, everyone would get $30,000. The insurance company would have to eat $20,000, and Paul’s attorney would eat $6,000 plus his expenses (let’s say $1,000). That is incorrect.
According to the statute, the math should look like this:
Insurance company’s portion starts at 1/2 the gross recovery ($45,000). It is then reduced by a 1/3 ($15,000), and is further reduced by Paul’s legal expenses ($1,000): $45,000 – $15,000 – $1,000 = $29,000. The insurance company gets $29,000 and is going to write of $21,000.
Paul’s attorney is going to get 40% of the gross recovery ($36,000), plus his expenses ($1,000), for a total of $37,000.
Paul gets $24,000.
While Paul gets less than everyone else, he is still better off than he would have been under common law, which required the insurance company be made whole. Under the common law, Paul would have received $3,000 ($90,000 – $50,000 – $37,000 = $3,000).
What does this mean for the practicing attorney? I think it makes smaller personal injury cases more attractive and easier to settle. If Paul would have been forced to pay his insurance company $50,000 of the proceeds, Paul’s attorney could never have settled his case for $90,000. As a result of Chapter 140, Paul and his attorney are happy campers and Dan Defendant’s insurance carrier is also quite pleased.
If you see a flaw in my reasoning or my math, or if you would simply like to share your thoughts, please leave a comment below.
