Category Archives: Subrogation

New York: The “Loss Transfer” Opportunity to Recover Otherwise Non-Recoverable First-Party Benefits


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New York’s “no-fault” legislation reflects a public policy designed to make the insurer of first-party benefits absorb the economic impact of loss without resort to reimbursement from its insured or, by subrogation, from the tortfeasor. Country Wide Ins. Co. v. Osathanugrah, 94 A.D.2d 513, 515 (N.Y. 1st Dept. 1983).  The no-fault concept embodied in New York’s Insurance Law modifies the common law system of reparation for personal injuries under tort law.  Safeco Ins. Co. of Am. v. Jamaica Water Supply Co., 83 A.D.2d 427, 431 (N.Y. 2nd Dept. 1981).  “[F]irst party benefits are a form of compensation unknown at common law, resting on predicates independent of the fault or negligence of the injured party.”  Id. at 431.  The purpose of New York’s no-fault scheme is “to promote prompt resolution of injury claims, limit cost to consumers and alleviate unnecessary burdens on the courts.”  Byrne v. Oester Trucking, Inc., 386 F. Supp. 2d 386, 391 (S.D.N.Y. 2005).

New York’s no-fault scheme—contained in Article 51 of its Consolidated Laws (“Comprehensive Motor Vehicle Insurance Reparations”)—requires owners of vehicles to carry insurance with $50,000 minimum limits which covers basic economic loss, i.e., first-party benefits, on account of personal injury arising from the use or operation of a motor vehicle. Basic economic loss includes, among other things:  (1) medical expenses; (2) lost earnings up to $2,000 per month for three years; and (3) out-of-pocket expenses up to $25 per day for one year.  N.Y. INS. LAW § 5102(a).

Where workers’ compensation insurance coverage exists for an injured motorist— i.e., where the motorist is operating a vehicle while in the course and scope of her employment—the workers’ compensation insurer must pay the injured motorist’s basic economic loss up to $50,000.  N.Y. INS. LAW § 5102(b)(2).  The compensation insurer in this scenario is said to become “primary.”  And since first-party benefits are guaranteed regardless of fault, there is no corresponding right of subrogation for the carrier reimbursing an injured motorist for items of basic economic loss. Condon v. Hathaway, 740 N.Y.S.2d 600, 603 (N.Y. Sup. Ct. 2002).

Instead, New York provides a compensation insurer with what is referred to as “loss transfer.”  Loss transfer is simply an opportunity to recover from the negligent motorist’s vehicle insurer the first-party benefits the compensation insurer became obligated to pay as a result of the accident.  But the right of a compensation insurer to recover under the loss transfer exception depends on the existence of either of two conditions: At least one of the motor vehicles involved (1) weighs more than 6,500 lbs. unloaded, or (2) is used principally for the transportation of persons (e.g., taxi, bus) or property for hire (e.g., FedEx, delivery truck)1.  N.Y. INS. LAW § 5105(a).  If one of these two conditions is met, a compensation insurer is free to pursue a loss transfer against the negligent motorist’s vehicle insurer for the recovery of the $50,000 first-party benefits it became obligated to pay under Section 5102(b)(2).

The “sole remedy” for pursuing a loss transfer against the negligent motorist’s vehicle insurer is, without exception, arbitration. N.Y. INS. LAW § 5105(b).  Thus there is no signatory requirement as arbitration is the sole remedy of any insurer seeking a loss transfer arising from a motor vehicle accident in New York. The New York Insurance Department has selected Arbitration Forums as the administrator of loss transfer arbitration and, through its regulations contained in 11 NYCRR § 65.10 (2003), has granted Arbitration Forums the authority to “make appropriate administrative rules for arbitration.”

It is important to remember that loss transfer is only applicable to the $50,000 first-party benefits a compensation insurer becomes obligated to pay under Section 5102(b)(2) of New York’s Insurance Law. Recovery of “APIP” 3 —or, additional benefits paid over and above the $50,000 no-fault threshold—can be had through conventional workers’ compensation subrogation provided under N.Y. WORKERS’ COMP LAW § 29.

New York’s loss transfer scheme is fraught with nuance and hidden exceptions, found not only in Article 51 itself, but also in the Insurance Department’s extensive regulations and in the rules promulgated by Arbitration Forums pursuant to its authority given by the Insurance Department. It is critical that counsel be sought as soon as practicable in a potential loss transfer case to not only preserve a loss transfer opportunity but to develop a comprehensive strategy for a successful recovery.

Robert M. Caplan is Counsel with White and Williams LLP and Workers’ Compensation Subrogation Team Leader. In addition to litigating and trying cases, Rob is a frequent lecturer at national and regional conferences held by the National Association of Subrogation Professionals (NASP) where he has been a Track Leader for the Workers’ Compensation Subrogation Track. Rob can be reached at caplanr@whiteandwilliams.com and 215.864.7012.

This entry was posted in New York, Subrogation, Workers' Compensation and tagged .

Insurer’s Failure To Give Notice Before Repairing Its Insured’s Home Bars The Insurer’s Subrogation Claim Under California’s Right To Repair Act


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By: Edward A. Jaeger, Jr.

In KB Home Greater Los Angeles, Inc. v. Superior Court (Allstate Ins. Co.), 168 Cal. Rptr. 3d 142 (Cal. Ct. App. 2014), the California Court of Appeal addressed the question of whether a subrogating insurer’s failure to comply with the pre-litigation procedures of the California Right to Repair Act (Cal. Civ. Code § 895 et seq.) (the Act) – which require that a homeowner give a builder notice and an opportunity to repair alleged defects – barred the insurer’s claim under the Act. The Court of Appeal held that the insurer’s failure to comply with the pre-litigation procedures of the Act prior to repairing the insured’s home barred the insurer’s cause of action under the statute.

In KB Home, Dipak Roy (Roy), the insured, bought a home from builder KB Home in 2004. Roy’s purchase agreement with KB Home contained a right to repair addendum that advised Roy of the pre-litigation procedures of the Act and directed that notices of defect claims be sent to KB Home’s corporate address in Los Angeles. The limited warranty section of the agreement provided for telephone notice in cases of emergency, followed by a promptly submitted written warranty claim.

In March 2010, Roy’s property manager discovered a water leak in the home, which was vacant at the time. The property manager shut off the water service to the home and called Roy, who, in turn, called his insurer, Allstate Insurance Company (Allstate). Allstate hired a mitigation company to remove excess water, damaged dry wall, and carpet. Allstate inspected the home in April 2010 and completed repairs in June 2010. In July 2010, Allstate sent KB Home a notice of its intent to pursue subrogation claims arising from the water leak. Allstate sent the notice to an address in Irvine, not to KB Home’s corporate address in Los Angeles. In November 2010, however, Allstate’s counsel sent a settlement demand to KB Home’s Los Angeles address. KB Home did not respond to Allstate’s demand.

In March 2011, Allstate filed a subrogation complaint against KB Home. In March 2012, Allstate filed a second amended complaint that alleged causes of action for negligence, strict liability, breach of implied warranty, and violation of the Act. KB Home demurred and the trial court overruled the demurrer, reasoning that the Act did not apply to subrogation claims. On KB Home’s petition, the Court of Appeal issued an alternative writ, directing the trial court to sustain the demurrer as to the negligence and strict liability claims, and to overrule the cause of action under the Act.

After the matter was sent back to the trial court, KB Home filed a motion for summary judgment against Allstate, arguing that it was not given timely notice and an opportunity to repair the defect. Allstate filed a cross-motion for summary judgment, arguing, among other things, that the Act did not require that notice be given to builders before repairs are made and that Allstate complied with the statute’s notice requirements. The trial court denied KB Home’s motion for summary judgment, finding that Allstate’s July and November 2010 letters to KB Home substantially complied with the notice requirements of the Act, and that KB Home forfeited its right to repair when it failed to respond to those letters. In addition, the trial court granted Allstate’s motion for summary judgment, finding that KB Home violated the building standards of the Act. Upon KB Home’s petition, the Court of Appeal issued an alternative writ of mandate, directing the trial court to grant KB Home’s motion for summary judgment and to deny Allstate’s cross-motion for summary judgment. Instead, the trial court upheld the rulings and returned the matter to the appellate court.

Upon return, the Court of Appeal addressed the issue of whether the Act – which applies to the original construction of individual homes sold after January 1, 2003 – requires that notice be given to a builder before repairs are made to a home. Pursuant to Chapter 4 of the Act, a homeowner is required to provide written notice to the original builder of a violation of any of the building standards identified in the statute. Although Allstate argued that the Act does not expressly require that builders be given notice of a defect before repairs are made, the Court of Appeal rejected Allstate’s argument because the pre-litigation procedures in the Act are sequential, and designed to give a builder the opportunity to resolve a homeowner’s construction defect claim “in an expeditious and nonadversarial manner.” As such, completing repairs before providing notice defeats the purpose of the pre-litigation procedures by prohibiting a builder from inspecting the alleged defect and making an offer to repair. The Court of Appeal also found that Allstate’s notice to KB Home did not substantially comply with the Act’s requirements because Allstate gave notice to KB Home months after the defect was repaired. Specifically, the appellate court observed that the notice letter merely asserted Allstate’s subrogation rights, made no reference to the Act, and identified a defect that no longer existed at the time. Because the Act required that Roy, the insured, give KB Home timely notice of the alleged construction defect and KB Home did not receive such notice, Allstate’s subrogation claim under the Act failed.

In analyzing Allstate’s claim, the Court of Appeal also addressed Allstate’s argument that the Act’s notice requirements are not practical when a construction defect causes actual damage, requiring emergency repairs. The appellate court, in dicta, rejected this argument, stating that the Act does not prevent homeowners from seeking immediate redress. Rather, under the Act, a homeowner can comply with the pre-litigation procedures by contacting the builder immediately, through any applicable normal customer service procedures and, then, providing the statutorily required written notice. As stated by the Court of Appeal, because the Act requires the builder to compensate the homeowner for consequential damages, including the cost of repairing actual property damage, the builder has an incentive to act quickly in cases of emergency.

The analysis in KB Home highlights the fact that, when a home is subject to the requirements of the Act, subrogating insurers should comply with the written notice requirements of the Act. In cases of emergency, insurers should contact the builder through its normal customer service procedures and send written notice as required by the Act. Absent compliance with the Act’s notice and opportunity to repair requirements, an insurer’s subrogation claim may be barred.

For more information regarding this alert, please contact Ed Jaeger (215.864.6322 / jaegere@whiteandwilliams.com).

This entry was posted in California, Litigation, Right to Repair Act, Subrogation and tagged , .

Rhode Island Recognizes Limits to the Anti-Subrogation Rule


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by: Edward A. Jaeger, Jr. and William L. Doerler

In Nationwide Property & Cas. Ins. Co. v. D.F. Pepper Construction, Inc., — A.3d –, 2013 WL 313933 (R.I. Jan. 28, 2013), the Supreme Court of Rhode Island addressed the question of whether the anti-subrogation rule precluded Nationwide Property & Casualty Insurance Company (Nationwide) from pursuing a subrogation action against a corporation solely owned by its insured. Recognizing that the corporation owned by Nationwide’s insured is a separate and distinct legal entity from Nationwide’s insured, the court held that the anti-subrogation rule did not apply.

The dispute at issue in D.F. Pepper arose from events that occurred after a snow storm in February of 2009. On the date of the storm, Dean Pepper (Pepper) was driving a truck owned by his company, D.F. Pepper Construction, Inc. (DFP, Inc.). While driving the truck home, the truck slid off of the road and hit Pepper’s home. Nationwide insured Pepper’s home. Merchants Mutual Insurance Company (Merchants) insured the truck. Nationwide paid Pepper for the damage to his home and filed a subrogation action against DFP, Inc. Nationwide alleged that Pepper was negligent, that he was acting within the course and scope of his employment, and that DFP, Inc. was vicariously liable for Pepper’s conduct under both the doctrine of respondeat superior and state law.

Pursuant to G.L. § 31-3-6, “the owner of a vehicle may be vicariously liable for the conduct of someone who has consent to drive the vehicle if the underlying driver is in fact negligent.” DFP, Inc. acknowledged that Pepper had consent to drive the truck and, thus, the only issues for trial were the issues of negligence and damages. The trial justice found that Pepper was negligent when he drove the truck.

DFP, Inc. argued that Nationwide’s claims were barred by the anti-subrogation rule. The trial justice held that DFP, Inc. and Pepper are separate entities and, because there was no allegation that DFP, Inc. was a sham corporation, the anti-subrogation rule did not apply.

On appeal, DFP, Inc. argued that the court should apply the anti-subrogation rule because, if Nationwide was allowed to recover, then Merchants, as the insurer of the truck, would pay the claim and then exercise its right of subrogation against Pepper. The court refused to engage in speculation as to whether Merchants would, in fact, pursue Pepper. However, the court recognized that if Merchants chose to proceed against Pepper, Merchants may, itself, be attempting to subrogate against its own insured as Merchants’ policy defined the term “insureds” to include both DFP, Inc. and “[a]nyone else while using with [DFP, Inc’s] permission a covered ‘auto.’”

Ultimately, although the Supreme Court recognized that it has not yet embraced the anti-subrogation rule and that the question of whether the rule should be adopted would have to wait for another day, the Supreme Court agreed with the trial court’s analysis. As noted by the court, DFP, Inc. is a distinct legal entity from Nationwide’s insured, Pepper. Thus, the court held that even if it were to recognize the anti-subrogation rule, the rule would have no application to the facts and circumstances of the case at issue.

The analysis in D.F. Pepper highlights the fact that courts, in general, treat corporations as separate legal entities unless the circumstances of a case dictate that the corporate form is a sham or, stated another way, that the corporation is the alter-ego of its owner. As the analysis in D.F. Pepper shows, absent circumstances justifying ignoring the corporate form, an insured who is the sole owner of a corporation should be treated as a separate entity from the corporation for purposes of deciding whether the anti-subrogation rule will preclude the insurer from pursuing a subrogation claim.

For more information regarding this alert, please contact Ed Jaeger (215.864.6322 / jaegere@whiteandwilliams.com) or Bill Doerler (215.864.6383 / doerlerw@whiteandwilliams.com).

This entry was posted in Anti-Subrogation Rule, Rhode Island, Subrogation and tagged , .