Setting the Record Straight
We are just as guilty as everyone else. Words matter, and in our industry, they are our tools. Therefore, using the right words would seem to be a priority. Making them up isn’t. Our firm reviews two to three dozen new claim files/catastrophic injury cases every day. We review these files for many reasons, but primarily to determine if the loss/injury was the result of negligence on the part of some “third party” other than the insured. This “third party” is also known as a “tortfeasor” – an individual or corporation that commits a wrongful act or fails to act in a prudent manner, thereby causing injury or damage to one of our clients’ insureds for which the law provides a legal right on the part of the insured or our insurer (via subrogation) to seek relief and damages by way of a civil lawsuit. After this lawsuit is filed, the tortfeasor is known as a “defendant” and the insured (or subrogated insurer) becomes a “plaintiff.” This tortfeasor is not a “claimant.”
There is an important difference between the insured/plaintiff and the tortfeasor/defendant in a subrogation lawsuit. Conflating the two can lead to confusion, misunderstandings, and missed subrogation opportunities. This difference reflects who was at fault in causing the accident and who is making a “claim.” An “insured”, of course, is a person or organization covered by insurance. In the context of an insurance “claim” file, therefore, the insured is almost always the one “making a claim.” The Free Dictionary defines a “claimant” as “a person who makes a claim.” International Risk Management Institute (IRMI) defines “claimant” as: “The person making a claim. Use of the word ‘claimant’ usually denotes that the person has not yet filed a lawsuit.” The Insurance Industry Glossary defines “claimant” as “The party making a claim under an insurance policy.”
One of the most common mistakes in terminology we see in insurance claim files (occurring in approximately half of the files we review) is the inappropriate reference to the third-party tortfeasor as the “claimant.” The tortfeasor isn’t making a claim; he is having a claim made against him. The claimant may be the insured. Under liability policies, the claimant is a third party, and this may be the genesis for the confusion. No matter which definition you use, a “claimant” is somebody making a claim – not somebody against whom a claim will be made.
Another word that is misused is one that is seemingly made up. “Subrogable” isn’t a word. “Subrogatable” is. Both are purportedly adjectives and derivations of the word “subrogation.” Subrogation is the substitution of one person or group by another in respect of a debt or insurance claim, accompanied by the transfer of any associated rights and duties; and from that definition has sprung an entire industry. However, when we try to create an adjective from the noun “subrogation”, we end up with many derivations, only one of which is correct. Subrogation is a noun. Subrogate is a verb. Subrogated is a past tense form of the verb, referring to subrogation in the past. Subrogating is a present participle form of the verb, referring to subrogation in the present.
The suffix “-able” comes from the word “able”, an adjective meaning “having the power or ability to do something.” Adding this suffix to a simple verb creates an adjective. As an example, the verb “inflate” becomes an adjective when you drop the “e” and add the suffix: “inflatable.” The same is logically true with the verb “subrogate.” You drop the “e” and add the suffix and arrive at: “subrogatable.” Subrogable isn’t a word—at least not yet; and not in English. It is a word in Spanish. Pronounced “soo-bro-gob-lay”, it means “surrogate.” If you think about it, that isn’t far from the true meaning of subrogation.
Our industry has been using the word “subrogable” for a generation. Its repeated use may—over pronounced time, gain it entry into the word of legitimate English words. In the world of today’s lexicography, usage is king. Dictionaries are, in the language of the business, descriptive dictionaries: they record, they collate, they analyze, and they describe what people actually say and write. If enough English speakers decide that some word or phrase has value, to the extent that those who encounter it are likely to need to consult the dictionary in search of its meaning, then it is put into new editions. The word (or non-word) “subrogable” hasn’t reach those user proportions yet. But one day it might. The definition of “claimant” on the other hand, would be hard to change. I can see the dictionary definition now:
claim·ant
/ˈklāmənt/
Noun
• a person making a claim, especially in a lawsuit.
• a person against whom a claim is made, especially in a lawsuit.
Synonyms: applicant, candidate, supplicant.
No confusion there.
If you should have any questions regarding this article or subrogation in general, please contact Gary Wickert at gwickert@mwl-law.com.
