Property subrogation cases that proceed against developers and seller-builders of homes are suddenly apt to being diverted from judicially engaged litigation into the province of Judicial Reference pursuant to California Code of Civil Procedure Section 638. In essence, this Code section exercises to remove judicial litigation and substitute independent arbitration pursuant to a written agreement...

In Fortis Benefits v. Cantu, 234 S.W.3d 642 (Tex.2007), the Texas Supreme Court held that the “made whole” doctrine does not apply where the parties’ agreed contract provides a clear and specific right of subrogation. Despite this ruling, the Austin Court of Appeals was recently confronted with a situation where a trial court attempted to...

Thinking about subrogating against a tenant in Washington? Think again because the Washington Court of Appeals has re-affirmed existing law and increased the risks of such a challenge.  Since Cascade Trailer v. Beeson was decided 1988, Washington courts have held that tenants are implied co-insureds under a landlord’s property policy. This holding leaves the landlord’s insurer without...

The sooner evidence can be evaluated and preserved, the better the prospects for a successful outcome. The Federal Rules of Civil Procedure afford to potential plaintiffs and defendants a uniform standard when pre‐action “discovery” can be obtained. Strictly speaking, the relief sought is not discovery, as the rule is utilized to preserve evidence. Federal Rule...

The Wisconsin legislature enacted a comprehensive tort reform package in early 2011. Part of the legislation changed Wisconsin’s evidence rules governing the admissibility of witness testimony on scientific, technical or specialized subjects. Wisconsin law now aligns with federal standards, which means that Wisconsin practitioners will have to identify any expert opinions they may need in a particular...

In situations where the Long Island electrical distribution system is involved in causing the loss, it is critically important to make sure that you adhere to certain particular Notice of Claim requirements, heed the shortened statute of limitations period, and also identify any additional maintenance vendors as potential targets for recovery. LIPA The Long Island...

Recovery professionals handling claims in Arbitration Forums, Inc.’s Property Arbitration Forum should be aware that, as of March 1, 2012, Arbitration Forums will be implementing new rules for hearings. Rule 3-7 now states that the written Contentions and supporting evidence submitted are all that is to be considered by an arbitrator, and that a party...

 A beautiful Michigan home burned down in 2007 due to an improperly ­installed fireplace. The home was re-built in 2007, but a year later, the home burned again. The insurer paid both losses, and asked subrogation counsel to investigate the matter for subrogation potential. The experts concluded that the second house fire was due to...

  It is not uncommon for subrogation counsel to file suit in the name of the insured for a variety of reasons. The most obvious is when counsel represents the insured for their uninsured losses or their deductible. However, there are times that for tactical reasons, counsel files suit in the name of the insured to try...

Defendants often claim that the negligent work they are being sued for was done by “an independent contractor”—thus attempting to alleviate their responsibility. This defense is often raised in cases where construction is being performed. However, it can also be raised when one party contracts with another for a specific type of installation or delivery...