Should I bother with a small injury claim if the insurance company will pursue subrogation?

UPDATED: Oct 1, 2022

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Should I bother with a small injury claim if the insurance company will pursue subrogation?

While shopping at Home Depot, a 65-lb box of tile fell on my toe, crushing the
bone. I have out of pocket medical expenses, missed-time work, etc. As I was
procuring medical invoices I asked my health insurance BCBS for copies of
bills. Of course, now they have opened up a subrogation process.

All in all, the total gross medical expenses are around 4,000 my personal
medical out-of-pocket is around 1,500. My legal claim to Home Dept is to cover
my own personal out-of-pocket medical expenses, time lost from work, and pain
suffering. My question/concern is that even though I’m asking for an
appropriate settlement specific to my burden, could BCBS still sue me for what
I get from Home Depot, that is rightfully my portion of repayment for this

Thus, is this lawsuit even worth my time to try to settle? I think BCBS should
file their own claim against Home Depot separate from me but I’m not in the
legal field – so that’s why I’m asking for your thoughts today

Thank you

Asked on June 6, 2019 under Personal Injury, Arizona


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

There is no reason to not sue in small claims court for the money. The insurer cannot seek from you any monies you recover so long as those amounts are documentably only for your own out-of-pocket payments, since they did not pay those amounts and thus have no claim for them. If you end up receiving more than your out-of-pocket costs and the insurer failed to pursue subrogation against the store and they become  aware of your settlement or judgment, then they could potentially seek any amounts over your out-of-pocket reimbursement from your settlement or award, but you'd still have your out-of-pocket recovery.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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