DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part of the
legislative instrument. The keyword, one-liner, abstract, and digest do not constitute part of the law
or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 440 Engrossed 2025 Regular Session Henry
Abstract: Provides relative to a claimant's duty to mitigate damages with respect to the actions for
recovery.
Present law prohibits insurers of automobile liability insurance policies from limiting the time period
during which an insured is entitled to payment or reimbursement for medical expenses as a result
of injuries caused by a covered accident. Present law applies when a policy provides coverage for
medical payments and the insured's injuries are diagnosed within one year of the accident and
reported to the insurer within three years of the accident.
Proposed law reduces the prescriptive period for which an insured can report covered injuries to the
automobile liability insurer from three years to two years. Otherwise retains present law.
Proposed law provides that a claimant's failure to use available health insurance to pay for medical
expenses for injury or damages creates a rebuttable presumption that the claimant failed to mitigate
damages.
Proposed law authorizes a claimant to rebut the presumption through evidence showing that the
claimant's failure to utilize health insurance was reasonable under certain circumstances.
Proposed law provides that a party alleging that the claimant failed to mitigate damages with use of
health insurance has the burden of providing evidence to support the presumption of the claimant's
failure to mitigate.
Proposed law provides that if the claimant does not refute the presumption, the trier of fact may
reduce the claimant's damage award by an amount equal to what the claimant's available health
insurance would have covered for medical expenses related to the injury or damages in question.
Further provides that the reduction applies only to medical expenses for which the claimant did not
utilize available health insurance. Requires the trier of fact to determine the appropriate reduction
based on the evidence presented regarding the claimant’s insurance coverage in application with
proposed law.
Proposed law does not apply to cases brought for claims pertaining to medical malpractice (R.S.
40:1231.1 et seq.) or malpractice liability for state services (R.S. 40:1237.1 et seq). and provides
only for prospective application.
Effective January 1, 2026. (Amends R.S. 22:1891)
Summary of Amendments Adopted by House
The Committee Amendments Proposed by House Committee on Insurance to the original bill:
1. Reduce the prescriptive period for which an insured can report covered injuries to the
automobile liability insurer from three years to two years.
2. Remove the requirement for an insured to first file a medical claim with private health
insurance.
3. Remove authorization for the health insurer to subrogate against the automobile liability
insurer.
4. Make technical changes.