Kalispell Senator Bruce Tutvedt recently introduced SB 288 in an attempt to carve out some measure of subrogation rights for workers' compensation insurers.
SB 288 proposes to amend 39-71-414, MCA to provide the right of insurers to subrogate against medical payments regardless of whether the injured worker has been made whole. The bill essentially leaves non-medical payments alone in that regard.
The inability to collect subrogation has long been a source of irritation among insurers and outright anger among policyholders. The Montana Supreme Court has precluded subrogation for the most part with its decisions in Francetich and McMillen, but more recently (Van Orden) suggested that it was not without exceptions.
The constitutional concerns of SB 288 are raised in the legal note accompanying the bill.
Tutvedt appears undeterred responding that he believes that workers' compensation subrogation is an equitable common law doctrine that is NOT dependent upon the right of full legal redress as provided for in the Montana Constitution.