There has been a growing trend among states to enact statutes that impose specific notice requirements when bringing claims against construction professionals. These notice requirements may apply to the subrogated carrier bringing a claim against a construction professional for certain types of damages. Failure to comply with the notice requirements can result in a dismissal of the subrogation action. Accordingly, caution must be exercised when notifying construction professionals of certain claims, and not just claims for construction defects.
In subrogation actions, the insurer, as subrogee, steps into the shoes of its insured. However, problems can arise when an insured has uninsured losses. In this situation, both the insurer and the insured have a right to file suit against the tortfeasor. The possibility of two different lawsuits raises a number of issues, such as whether: 1) proceeding separately impermissibly splits the cause of action; 2) the insured’s attorney is entitled to attorney’s fees under the common fund doctrine; and 3) the insurer can proceed before the insured is made whole. In light of these issues, subrogating insurers should proceed with caution before filing suit separately from the insured.
For subrogation professionals, it is important to limit the liability exposure of your insured. In cases where the insurer, as subrogee, is proceeding as the plaintiff, this means limiting any direct claims against the insured – whether for contribution or indemnity – to affirmative defenses as opposed to third-party claims. Limiting direct claims against insureds not only keeps captions clean, but avoids strategic maneuvering by the defense that could negatively impact your case. In Ohio, when a defendant tries to pursue direct claims against the insured for contribution or indemnification, practitioners should, consistent with the analysis set forth in Continental Casualty Company v. Equity Indus. Maple Heights, LLC, 2017 U.S. Dist. LEXIS 54440 (N.D. Ohio, April 10, 2017), argue that defendants can no longer attempt this maneuver and that they are limited to raising affirmative defenses against the plaintiff’s subrogor.
In Franklin Mut. Ins. Co. v. Castle Restoration & Constr., Inc., 2016 N.J. Super. Unpub. LEXIS 2300 (App. Div. Oct. 20, 2016), the Appellate Division of the Superior Court affirmed the dismissal of a subrogating property insurer’s claim based on New Jersey’s entire controversy doctrine, a doctrine that requires a party to litigate all aspects of a controversy in a single legal proceeding. Although the decision is unpublished and based on the specific factual circumstances of the case, the decision sends a cautionary reminder to insurers involved in a declaratory judgment action that they should not wait for the declaratory judgment action to be decided before taking action to protect their subrogation rights.
In Melrose Gates, LLC v. Chor Moua, et al., 875 N.W.2d 814 (Minn. 2016), the Supreme Court of Minnesota, applying the factors the court first articulated in RAM Mutual Insurance Company v. Rohde, 820 N.W.2d 1 (Minn. 2012), analyzed whether the parties to an apartment lease reasonably expected that the tenants would be liable in subrogation for fire damage caused by the tenants’ negligence. The Melrose Gates court held that, based on the language of the lease, the type of insurance the parties purchased, and the fact that the building was a multi-unit structure, the parties intended that the tenants would be responsible for damage to their leased unit but not for damage to other property. Thus, while the landlord’s insurer could recover the amount it paid to repair the damage to the tenants’ unit, it could not recover the amount it paid to repair other units or common areas of the building.
When an insurer, as subrogee of its insured, files suit against a defendant to recover its subrogated payments, the defendant, not infrequently, files a third-party complaint against the insured. Typically, the defendant alleges that, if it is liable, then the insured, based on his or her contributory negligence, is liable to the defendant for contribution. Insureds, however, cannot be liable in tort to themselves.
In Board of Commissioners of County of Jefferson v. Teton Corp., 30 N.E.3d 711 (Ind. 2015), Jefferson County hired Teton Corporation to perform renovation work on the Jefferson County courthouse. Teton hired subcontractors to perform the roofing work.
Jefferson County’s contract with Teton incorporated American Institute of Architects (“AIA”) General Conditions form A201-1987. The AIA contract required Jefferson County to obtain property insurance and included a waiver of subrogation clause that stated, in pertinent part: “The Owner and Contractor waive all rights . . . for damage caused by fire or other perils to the extent covered by property insurance obtained pursuant to this Paragraph 11.3 or other property insurance applicable to the Work.” (Emphasis added). Instead of procuring a separate builder’s risk policy for the renovation work, Jefferson County relied on its existing “all risk” property insurance policy to cover the entire courthouse, including the renovation work.