April 2015 Subrogation Newsletter
Tort and subrogation cases continue to be heavily mined and booby-trapped with potential spoliation danger. The law in this area is far from clear and spoliation rules and laws vary greatly from state to state. As in most states, Texas does not recognize an independent cause of action for intentional or negligent spoliation of evidence by parties to litigation. Recently, the Supreme Court in Brookshire Brothers v. Aldridge, 438 S.W.3d 9 (Tex. 2014) crafted a new set of rules and standards for Texas spoliation claims.
Claims history is littered with billion dollar claims resulting from catastrophic losses caused by natural disasters (“Acts of God”). When God sends a hurricane, tornado, flood, or naturally-occurring fire, the resulting losses can be enough to put many insurance companies into receivership. However, these losses present tremendous recovery potential for the proactive claims professional. It is said that opportunity is missed by most because it is dressed in overalls and looks like work. If a carrier is willing to invest the time and effort necessary to investigate third-party potential in the face of disaster, it is possible to turn tragedy into triumph.
The well-orchestrated attack on subrogation continues. Trial lawyer listservs, legal conferences, and organizational efforts to combat subrogation on all fronts have resulted in a rash of class action suits aimed at subrogated carriers based on alleged violations of the Made Whole Doctrine, alleged failures to reimburse deductibles, and alleged violations of fair debt collection practices legislation in a number of states. In the State of Washington, the battle is hot and heavy.
This month, Claimwire.com featured an in-depth and personal interview with Gary L. Wickert, partner at Matthiesen, Wickert & Lehrer, S.C. Claimwire serves the insurance industry by providing forms, news, resources, and vendor information to assist insurance professionals involved in the field of workers’ compensation. The interview itself took several hours and, according to Gary, delved into some rather interesting and personal areas far afield from his role as subrogation counsel. The entire interview can be read HERE.
April Toy will be presenting a complimentary webinar on Introduction To Cargo Subrogation on May 7, 2015 from 10:00-11:00 a.m. (CST). This webinar will introduce the subrogation professional to the basic concepts of subrogating cargo claims under the Carmack Amendment and Carriage of Goods Sea Act (COGSA). The webinar will identify major pitfalls that can befall an unsuspecting claims professional, such as notice requirements, preemption of state law claims, and liability limitations, which can affect recovery. It will also cover investigation techniques and how to preserve relevant documents and evidence to establish a prima facie case. For more information on this webinar and/or to register for it, click HERE.