A07828 Summary:
BILL NO | A07828A |
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SAME AS | SAME AS S05715-A |
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SPONSOR | Weinstein |
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COSPNSR | |
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MLTSPNSR | |
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Amd SS5-101 & 5-335, Gen Ob L | |
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Protects the parties to a tort settlement from any claims by an insurer. |
A07828 Actions:
BILL NO | A07828A | |||||||||||||||||||||||||||||||||||||||||||||||||
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06/05/2013 | referred to judiciary | |||||||||||||||||||||||||||||||||||||||||||||||||
06/12/2013 | reported referred to codes | |||||||||||||||||||||||||||||||||||||||||||||||||
06/17/2013 | reported referred to rules | |||||||||||||||||||||||||||||||||||||||||||||||||
06/17/2013 | amend and recommit to rules 7828a | |||||||||||||||||||||||||||||||||||||||||||||||||
06/18/2013 | reported | |||||||||||||||||||||||||||||||||||||||||||||||||
06/18/2013 | rules report cal.479 | |||||||||||||||||||||||||||||||||||||||||||||||||
06/18/2013 | ordered to third reading rules cal.479 | |||||||||||||||||||||||||||||||||||||||||||||||||
06/20/2013 | passed assembly | |||||||||||||||||||||||||||||||||||||||||||||||||
06/20/2013 | delivered to senate | |||||||||||||||||||||||||||||||||||||||||||||||||
06/20/2013 | REFERRED TO RULES | |||||||||||||||||||||||||||||||||||||||||||||||||
06/21/2013 | SUBSTITUTED FOR S5715A | |||||||||||||||||||||||||||||||||||||||||||||||||
06/21/2013 | 3RD READING CAL.1619 | |||||||||||||||||||||||||||||||||||||||||||||||||
06/21/2013 | PASSED SENATE | |||||||||||||||||||||||||||||||||||||||||||||||||
06/21/2013 | RETURNED TO ASSEMBLY | |||||||||||||||||||||||||||||||||||||||||||||||||
11/01/2013 | delivered to governor | |||||||||||||||||||||||||||||||||||||||||||||||||
11/13/2013 | signed chap.516 |
A07828 Floor Votes:
Yes
Abbate
Yes
Crespo
No
Goodell
Yes
Lupardo
Yes
Paulin
Yes
Simanowitz
Yes
Abinanti
Yes
Crouch
Yes
Gottfried
Yes
Lupinacci
Yes
Peoples-Stokes
Yes
Simotas
Yes
Arroyo
Yes
Curran
Yes
Graf
Yes
Magee
Yes
Perry
Yes
Skartados
Yes
Aubry
Yes
Cusick
Yes
Gunther
Yes
Magnarelli
Yes
Pretlow
Yes
Skoufis
Yes
Barclay
Yes
Cymbrowitz
Yes
Hawley
Yes
Maisel
Yes
Quart
Yes
Solages
Yes
Barrett
Yes
DenDekker
ER
Heastie
Yes
Malliotakis
Yes
Ra
Yes
Stec
Yes
Barron
Yes
Dinowitz
Yes
Hennessey
Yes
Markey
Yes
Rabbitt
Yes
Steck
Yes
Benedetto
No
DiPietro
Yes
Hevesi
Yes
Mayer
Yes
Raia
AB
Stevenson
Yes
Blankenbush
Yes
Duprey
ER
Hikind
Yes
McDonald
Yes
Ramos
Yes
Stirpe
Yes
Borelli
Yes
Englebright
Yes
Hooper
Yes
McDonough
Yes
Reilich
Yes
Sweeney
AB
Boyland
Yes
Espinal
Yes
Jacobs
Yes
McKevitt
Yes
Rivera
Yes
Tedisco
Yes
Braunstein
Yes
Fahy
Yes
Jaffee
Yes
McLaughlin
Yes
Roberts
No
Tenney
Yes
Brennan
Yes
Farrell
Yes
Johns
Yes
Miller
Yes
Robinson
Yes
Thiele
Yes
Brindisi
Yes
Finch
Yes
Jordan
Yes
Millman
Yes
Rodriguez
Yes
Titone
Yes
Bronson
Yes
Fitzpatrick
No
Katz
Yes
Montesano
Yes
Rosa
Yes
Titus
Yes
Brook-Krasny
No
Friend
Yes
Kavanagh
Yes
Morelle
Yes
Rosenthal
No
Walter
Yes
Buchwald
Yes
Gabryszak
Yes
Kearns
Yes
Mosley
Yes
Rozic
Yes
Weinstein
Yes
Butler
Yes
Galef
Yes
Kellner
Yes
Moya
Yes
Russell
Yes
Weisenberg
Yes
Cahill
Yes
Gantt
Yes
Kim
Yes
Nojay
Yes
Ryan
Yes
Weprin
Yes
Camara
Yes
Garbarino
Yes
Kolb
Yes
Nolan
Yes
Saladino
Yes
Wright
Yes
Ceretto
Yes
Gibson
No
Lalor
Yes
Oaks
Yes
Santabarbara
Yes
Zebrowski
Yes
Clark
Yes
Giglio
Yes
Lavine
Yes
O'Donnell
Yes
Scarborough
Yes
Mr. Speaker
Yes
Colton
ER
Gjonaj
Yes
Lentol
Yes
Ortiz
Yes
Schimel
Yes
Cook
Yes
Glick
Yes
Lifton
Yes
Otis
No
Schimminger
No
Corwin
Yes
Goldfeder
Yes
Lopez
No
Palmesano
Yes
Sepulveda
‡ Indicates voting via videoconference
A07828 Memo:
Go to topNEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)   BILL NUMBER: A7828A SPONSOR: Weinstein
  TITLE OF BILL: An act to amend the general obligations law, in relation to protecting parties to the settlement of a tort claim from certain unwarranted lien, reimbursement and subrogation claims   PURPOSE OF BILL: Chapter 494 of the laws of 2009, inter alia added a new subdivision 4 to section 5-101 of the general obligations law and amended section 5-335 of the general obligations law. That legislation was intended to protect parties to the settlement of a tort claim from certain unwarranted lien, reimbursement and subrogation claims by insur- ers. The purpose of this bill is to correct any misunderstanding as to the applicability and scope of that law by refining its definition and applicability to precluding liens, reimbursements and subrogation claims with respect to any cost of health care services, loss of earnings or other economic loss to the extent those losses or expenses have been or are obligated to be paid or reimbursed by an insurer.   SUMMARY OF PROVISIONS OF BILL: This bill would provide for the following: 1) It will now be conclusively presumed that, except with respect to Medicare, Medicaid, Automobile No-Fault or Workers' Compensation payments for which there is a statutory right of reimbursement, the monies paid in settlement of any personal injury or wrongful death action did not include compensation for the losses or expenses that were or will be paid by an insurer; and 2) Except for those payments made by Medicare, Medicaid or an insurer providing Workers' Compensation benefits for which there is a statutory right of reimbursement, no defendant that enters into a settlement with the personal injury or wrongful death plaintiff shall be thereafter subject to any insurers' claim for subrogation or reimbursement.   JUSTIFICATION: In 2009, the legislature enacted the current General Obligations Law §§ 5-101 and 5-335 to protect plaintiffs and defendants from unwarranted liens, reimbursement and subrogation claims by insur- ers. Since the 2009 enactment of the current law, it has been relied upon by all parties to settlements involving tort claims. In a recent federal court decision (Wurtz v. Rawlings Co., LLC, 2013 WL 1248631 (E.D.N.Y.)), federal ERISA law was found to preempt New York's General Obligation Law with regard to an insurer's (of an ERISA plan) right of subrogation, undermining the intent of this legislature. This bill is a corrective measure that will bring the General Obligation Law clearly under ERISA's savings clause, which allows States to regu- late an insurer's subrogation rights. As this was the legislature's original intent, the bill will apply to all settlements entered into on or after November 12, 2009 -- the effective date of that year's amend- ments to the relevant provisions of the General Obligations Law. This will ensure that parties who have entered into settlements in the expec- tation that New York law apply, will not now be harmed by this federal court's ruling.   LEGISLATIVE HISTORY: New bill, 2013.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENT: None.   EFFECTIVE DATE: Immediately apply to any settlement entered into on or after November 12, 2009.
A07828 Text:
Go to top STATE OF NEW YORK ________________________________________________________________________ 7828--A 2013-2014 Regular Sessions IN ASSEMBLY June 5, 2013 ___________ Introduced by M. of A. WEINSTEIN -- read once and referred to the Committee on Judiciary -- reported and referred to the Committee on Codes -- reported and referred to the Committee on Rules -- Rules Committee discharged, bill amended, ordered reprinted as amended and recommitted to the Committee on Rules AN ACT to amend the general obligations law, in relation to protecting parties to the settlement of a tort claim from certain unwarranted lien, reimbursement and subrogation claims The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative intent. The legislature finds that the resol- 2 ution and settlement of certain types of claims have been impeded as a 3 result of health insurers' attempts to intervene into pending liti- 4 gation, as well as similar attempts to institute subrogation and 5 reimbursement actions against litigants. As a result, settlement of 6 claims made by accident victims and others are imperiled and prevented, 7 thus causing undue burdens and pressures upon the court system. In addi- 8 tion, defendants in such actions are being subjected to claims made by 9 health insurers, exposing them to additional liability. 10 Chapter 494 of the laws of 2009 was enacted to add a new subdivision 4 11 to section 5-101 of the general obligations law and to add a new section 12 5-335 of the general obligations law "in relation to protecting parties 13 to the settlement of a tort claim from certain unwarranted lien, 14 reimbursement and subrogation claims". However, one federal court, the 15 United States District Court for the Eastern District of New York, in 16 Wurtz v. Rawlings Co., LLC, 2013 WL1248631 (E.D.N.Y), has held that this 17 legislation was preempted to the extent it applies to any insured 18 employee benefit plan covered by the Employee Retirement Income Security 19 Act of 1974, as amended (ERISA). The instant legislation is intended to 20 make clear the original purpose of sections 5-101 and 5-335 of the 21 general obligations law which is to ensure that insurers will not be EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11329-05-3A. 7828--A 2 1 able to claim or access any monies paid in settlement of a tort claim 2 whether by way of a lien, a reimbursement claim, subrogation, or other- 3 wise so that the burden of payment for health care services, disability 4 payments, lost wage payments or any other benefits for the victims of 5 torts will be borne by the insurer and not any party to a settlement of 6 such a victim's tort claim. This law is specifically directed toward 7 entities engaged in providing health insurance, thus falling under the 8 "savings" clause contained in ERISA, which reserves to the states the 9 right and the ability to regulate insurance. 10 § 2. Subdivision 4 of section 5-101 of the general obligations law, as 11 added by section 7 of part F of chapter 494 of the laws of 2009, is 12 amended to read as follows: 13 4. As used in section 5-335 of this article, the term ["benefit14provider"] "insurer" means any [insurer, health maintenance organiza-15tion, health benefit plan, preferred provider organization, employee16benefit plan] insurance company or other entity which provides for 17 payment or reimbursement of health care expenses, health care services, 18 disability payments, lost wage payments or any other benefits under a 19 policy of insurance or an insurance contract with an individual or 20 group. 21 § 3. Section 5-335 of the general obligations law, as added by section 22 8 of part F of chapter 494 of the laws of 2009, is amended to read as 23 follows: 24 § 5-335. Limitation of [non-statutory] reimbursement and subrogation 25 claims in personal injury and wrongful death actions. (a) When a [plain-26tiff] person settles [with] a claim, whether in litigation or otherwise, 27 against one or more [defendants in an action] other persons for personal 28 injuries, medical, dental, or podiatric malpractice, or wrongful death, 29 it shall be conclusively presumed that the settlement does not include 30 any compensation for the cost of health care services, loss of earnings 31 or other economic loss to the extent those losses or expenses have been 32 or are obligated to be paid or reimbursed by [a benefit provider, except33for those payments as to which there is a statutory right of reimburse-34ment] an insurer. By entering into any such settlement, a [plaintiff] 35 person shall not be deemed to have taken an action in derogation of any 36 [nonstatutory] right of any [benefit provider] insurer that paid or is 37 obligated to pay those losses or expenses; nor shall a [plaintiff's] 38 person's entry into such settlement constitute a violation of any 39 contract between the [plaintiff] person and such [benefit provider] 40 insurer. 41 [Except where there is a statutory right of reimbursement, no party] 42 No person entering into such a settlement shall be subject to a subroga- 43 tion claim or claim for reimbursement by [a benefit provider] an insurer 44 and [a benefit provider] an insurer shall have no lien or right of 45 subrogation or reimbursement against any such settling [party] person or 46 any other party to such a settlement, with respect to those losses or 47 expenses that have been or are obligated to be paid or reimbursed by 48 said [benefit provider] insurer. 49 (b) This section shall not apply to a subrogation claim for recovery 50 of additional first-party benefits provided pursuant to article fifty- 51 one of the insurance law. The term "additional first-party benefits", as 52 used in this subdivision, shall have the same meaning given it in 53 section 65-1.3 of title 11 of the codes, rules and regulations of the 54 state of New York as of the effective date of this statute. 55 (c) This section shall not apply to a subrogation or reimbursement 56 claim for recovery of benefits provided by Medicare or Medicaid, specif-A. 7828--A 3 1 ically authorized pursuant to article fifty-one of the insurance law, or 2 pursuant to a policy of insurance or an insurance contract providing 3 workers' compensation benefits. 4 § 4. This act shall take effect immediately and shall apply to all 5 settlements entered into on or after November 12, 2009.