University of South Dakota School of Law Professor Emeritus Roger Baron was cited by the Hawai’i Supreme Court in YUKUMOTO v. TAWARAHARA (2017 WL 2303528), an opinion handed down this past Friday, May 26, 2017. The decision resolved an issue of first impression concerning the ability of a health insurer to be subrogated against third-party tortfeasors. This opinion cites other authorities in support of its ruling, but Prof. Baron’s 1996 subrogation article published in the South Dakota Law Review is the first secondary (non-judicial) authority cited in the opinion.
This case presented the Hawai’i Supreme Court with its first opportunity to address the Hawai’i legislature’s statute addressing subrogation by a health insurer. Under the new statute, subrogation is limited and, in some cases, prohibited altogether. In this case the tort plaintiff was catastrophically injured while riding a moped in Honolulu. The trial court denied recovery to the health insurer and the Hawai’i Supreme Court affirmed. This opinion rejects the assertion that the health insurer has superior rights based upon contract and based upon equity.
The citation to Professor Baron’s article is found in the Court’s initial discussion and is reproduced here:
Subrogation is a “creature of equity,” and is premised on the notion that an insured should not be able to “unduly benefit from a loss and thereby enjoy a ‘double recovery’ from both the insurer and the tortfeasor.” St. Paul Fire & Marine Ins. Co. v. Liberty Mut. Ins. Co., 135 Hawai‘i 449, 452, 353 P.3d 991, 994 (2015); Roger Baron, Subrogation: A Pandora’s Box Awaiting Closure, 41 S.D. L. Rev. 237, 241 (1996);
The Hawai’i Supreme Court joins a growing list of courts that have cited this South Dakota Law Review article authored by Professor Emeritus Roger Baron. This same article has been cited by the Alabama Supreme Court, Alabama Civil Court of Appeals, California Appellate Court, Nebraska Federal District Court, New Jersey Supreme Court, New Jersey Appellate Court, New Jersey Superior Court, New Jersey Federal District Court, Pennsylvania Commonwealth Court (dissenting opinion), Puerto Rico Supreme Court (opinion in Spanish) and the Wisconsin Supreme Court.
By Marie H. Ruettgers, Partner and Managing Attorney at Goosmann Law Firm, PLC of Sioux Falls, South Dakota.