It should seem fundamental to attorneys and subrogation professionals that when a subrogation lawsuit is brought, the insured cannot be named as a defendant in the action. However, there are instances where the uninitiated defendant seeks to name the carrier’s insured as a third-party defendant to force the insured to become a party to the...
A recent federal case provided an excellent example that not all supposed waivers of subrogation are, in fact, waivers. In National Surety Corp., et al. v. Bozeman, 2022 WL 953053, No. 1:20-cv-01187-WJM-GPG (D. Colo. March 30, 2022), National Surety filed a subrogation action alleging the defendant – the owner of the unit where the fire...
As stated by Justice Abella in Sable Offshore Energy Inc. v. Ameron International Corp., “a Pierringer Agreement allows one or more defendants in a multi-party proceeding to settle with the plaintiff and withdraw from the litigation, leaving the remaining defendants responsible only for the loss they actually caused. There is no joint liability with the...
There are many challenges to subrogation recovery when the fire originates at a neighboring property. To assist with the challenge of pursuing liability, one tip is to look for evidence supporting the fire spread theory. In some jurisdictions, common law negligence claims and code violations are allowed to hold the property owner or property manager...
Litigants in New York now face new requirements for the production of liability insurance information at the onset of a civil action. The “Comprehensive Insurance Disclosure Act” (the “Act”) was signed into law by New York Governor Kathy Hochul on December 31, 2021. This legislation alters C.P.L.R. § 3101(f) with new requirements for defendants, third-party...
A key issue that usually surfaces during a maritime subrogation action involving an allision (the striking of one ship upon another ship that is stationary) is the Limitation of Liability Act. The Limitation of Liability Act generally allows a vessel owner to limit its liability exposure after a maritime incident or casualty to the post-casualty...
When evaluating the potential recovery for pursuing a subrogation action, insurance carriers must consider to what extent, if any, its insured negligently contributed to its injuries. Accounting for the insured’s potential liability is a significant part of the cost-benefit analysis for pursuing any subrogation claim. But in certain circumstances, the carrier may be concerned that...
Evidence of a defendant’s liability insurance is typically precluded from trial to prevent a jury’s decision being prejudiced by the source of potential funds. However, whether this same principle should apply to evidence of first party property insurance when a carrier pursues a subrogation claim has been somewhat murkier. The Massachusetts Court of Appeals recently...
It seems like a deceivingly simple question as most attorneys assume statutes of limitations apply to all proceedings, despite the forum. However, this is not the case. The answer to whether a statute of limitations applies to your arbitration claim depends on the following questions: Has your state legislature or court decided that statutes of...
The Economic Loss Doctrine (ELD) is a legal principle that bars negligence claims when damages are deemed purely “economic.” While more commonly applied in product defect cases, limited jurisdictions may also use the ELD to bar negligent construction claims. And in these instances, a plaintiff’s property damage claim may be required to stem from a...
