February 2014 Subrogation Newsletter
Two Texas vehicle owners driving identical vehicles are involved in accidents caused by a negligent tortfeasor. One vehicle is repairable, the other is “totaled.” The owner of the vehicle being repaired obtains a rental car the day of the accident and has transportation until he gets his vehicle back. The owner of the totaled vehicle must wait for his claim to be processed, reports to be written, salvage to be determined, and a check in the amount of the market value of his vehicle – a process that could take one week to several months. The entire time he is without the use of his totaled vehicle. Texas law allows the owner of the repaired vehicle to recover loss of use damages (i.e., rental charges), but doesn’t allow the owner of the totaled vehicle to recover such damages. The logic and underlying reasoning for the disparate treatment of these two vehicle owners is lacking in Texas and it’s time for a change.
In a mysterious legal sleight of hand that would make David Copperfield envious, the Arizona Court of Appeals has reinvented the English language by making it possible to reassign something that wasn’t assigned in the first place. In Acosta v. Kiewit-Sundt, the Court essentially rewrote § 23-1023, Arizona’s workers’ compensation subrogation statute. Although it defies logic that a claim clearly subject to “reassignment” wouldn’t have to be assigned in the first place, it remains to be seen whether the Arizona Supreme Court fixes the court’s error.
Whether you are investigating a subrogation claim or conducting interviews of injured claimants, being able to record a conversation and refer back to it can be indispensable to the handling of a matter before or during litigation. Today’s technology makes obtaining recordings of conversation with witnesses easy to obtain, and in an industry where words matter, the precise wording used by a witness can make all the difference. However, if you do plan to record (or videotape) a witness, with or without the permission of one or more parties to the conversation, you must be aware of the state and federal wiretapping laws which govern this activity.