Tag Archives: Subrogation

Carmack Amendment Loss Claims Should Indicate a Specified or Determinable Amount of Money

This entry was posted by William L. Doerler on August 29, 2018.

In N.Y. Marine & Gen. Ins. Co. v. Estes Express Lines, Inc., 719 Fed. Appx. 691 (9^th Cir. 2018), the United States Court of Appeals for the Ninth Circuit (Appeals Court) addressed the question of whether an insurer, N.Y. Marine & General Insurance Company (N.Y. Marine), could recover from a cargo carrier under the Carmack Amendment, 49 U.S.C. § 14706, if the insured’s loss claim did not state a specified amount of money. Finding that § 14706 requires that a party filing a cargo loss claim state a specified or determinable amount of money, the Appeals Court affirmed the district court’s holding that neither the carrier, Estes Express Lines, Inc. (Estes) nor the broker, Exfreight Zeta, Inc. (Zeta), was liable to N.Y. Marine. Continue reading →

This entry was posted in Cargo - Transportation, Subrogation and tagged Cargo-Transportation, Subrogation.

New York Federal Court Holds That the Montreal Convention Does Not Allow a Party to Recover Inspection Costs Where Cargo Suffers No Physical Damage

This entry was posted by William L. Doerler on July 30, 2018.

In Indemnity Ins. Co. of N. Am. v. Agility Logistics Corp., 2018 U.S. Dist. LEXIS 104179 (S.D.N.Y.), the United States District Court for the Southern District of New York considered the “novel question” of whether the Montreal Convention allows recovery of inspection costs when there is no physical damage to the cargo at issue. Although acknowledging that its holding was, arguably, absurd, the court held that, based on the plain language of Article 18 of the Montreal Convention, the subrogating insurer could not recover the inspection costs its insured incurred. Continue reading →

This entry was posted in Cargo - Transportation, Subrogation and tagged Cargo-Transportation, Jurisdiction, Montreal Convention, Subrogation.

Northern District of Mississippi Finds That Non-Work Property Damages Are Not Subject to AIA’s Waiver of Subrogation Clause

This entry was posted by Shannon M. Warren on June 27, 2018.

In recent months, the Northern District of Mississippi has grappled with how to interpret waivers of subrogation in American Institute of Architects (AIA) construction industry contracts and, specifically, how they apply to work versus non-work property. The distinction between work and non-work property has been commonly litigated and remains a hotly debated topic when handling subrogation claims involving construction defects. Continue reading →

This entry was posted in AIA Contracts, Construction Defects, Mississippi, Subrogation, Waiver of Subrogation and tagged Mississippi, Subrogation, Waiver of Subrogation.

Pennsylvania Supreme Court Declares Future Credit on Medical Benefits Dead

This entry was posted by Robert Caplan on June 25, 2018.

On June 19, 2018, the Pennsylvania Supreme Court decided Whitmoyer v. WCAB (Mountain Country Meats), No. 52 MAP 2017, 2018 Pa. Lexis 2995. The decision reversed longstanding Pennsylvania law and the Commonwealth Court’s decision. The net result of this decision: an insurer can no longer assert a future credit on projected medical benefit payments when settling a third-party case. However, insurers may continue to assert a future credit on indemnity payments. Continue reading →

This entry was posted in Pennsylvania, Workers' Compensation and tagged Medical Benefits, Pennsylvania, Subrogation, Workers’ Compensation.

Connecticut Supreme Court Holds That Landlord’s Insurer Can Pursue Equitable Subrogation If Lease Requires Tenant Have Insurance and Holds Tenant Responsible for Damage

This entry was posted by Gus Sara on May 8, 2018.

In Amica Mutual Insurance Company v. Muldowney, 328 Conn. 428 (2018), the Connecticut Supreme Court considered whether a landlord’s insurance carrier could subrogate against the landlord’s tenants for property damage when the lease did not specifically authorize subrogation. The court held that, while subrogation was not expressly allowed, the language in the lease requiring the tenants to have liability insurance and holding them liable for damage was sufficient to overcome Connecticut’s common law presumption that a landlord’s carrier cannot subrogate against a tenant. This case emphasizes the importance of analyzing every aspect of a lease when determining the true intent of the parties with respect to subrogation. Continue reading →

This entry was posted in Connecticut, Landlord-Tenant, Subrogation, Subrogation – Equitable and tagged Connecticut, Subrogation.

Utah’s Supreme Court Addresses When an Insurer Can, Despite the Made Whole Doctrine, Proceed in Its Own Name

This entry was posted by Gus Sara on February 7, 2018.

In Wilson v. Educators Mut. Ins. Ass’n, 2017 UT 69, the Supreme Court of Utah considered whether an insurer had the right to bring a subrogation action in its own name despite the fact that its insured had not yet been made whole. The court held that, although the common law made whole doctrine generally bars an insurer from proceeding in its own name until after the insured has been made whole, the terms of an insured’s insurance policy can change the made whole doctrine. The Wilson case highlights the importance of reviewing the applicable insurance policy, in conjunction with the law of the applicable jurisdiction, to determine an insurer’s subrogation rights. Continue reading →

This entry was posted in Made Whole, Subrogation, Utah and tagged Made Whole, Parties, Subrogation, Utah.

Where the Insured Has Been Made Whole, a Subrogating Insurer Proceeding in the Insured’s Name Need Not Respond to Discovery Issued to the Insured

This entry was posted by William L. Doerler on December 28, 2017.

When an insurer files a subrogation suit in the insured’s name, questions often arise with respect to whether, by doing so, the insurer has to respond to discovery issued to the insured. In Aquatherm, LLC v. Centimark Corporation, 2017 U.S. Dist. LEXIS 85173 (C.D. Utah June 2, 2017), a case in which the insurer at issue made the insured whole, the District Court for the District of Utah answered the question in the negative. Continue reading →

This entry was posted in Discovery, Made Whole, Subrogation, Utah and tagged Parties, Subrogation, Utah.

Texas Clarifies the Notice Requirements for Damages Resulting from Construction Defects

This entry was posted by Shannon M. Warren on October 19, 2017.

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.

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This entry was posted in Construction Defects, Right to Repair Act, Subrogation, Texas and tagged Right to Repair Act, Subrogation, Texas.

Avoiding Split Decisions: The Pitfalls of Proceeding Separately from the Insured

This entry was posted by William L. Doerler on August 21, 2017.

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.

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This entry was posted in Subrogation and tagged Made Whole, Res Judicata, Subrogation.

In Ohio, When a Subrogating Insurer is the Plaintiff, Defendants Should not File Contribution or Indemnification Claims Against the Insured

This entry was posted by Lian Skaf on May 11, 2017.

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.

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This entry was posted in Anti-Subrogation Rule, Contribution-Apportionment, Indemnification, Ohio, Subrogation and tagged Anti-Subrogation Rule, Ohio, Parties, Subrogation.