February 2016 Subrogation Newsletter
Damage resulting from falling limbs or trees remains one of the most overlooked areas of third-party liability and subrogation. They are also the most poorly investigated. Whether the owner of a tree that has fallen is a private citizen or a municipality, subrogation professionals must be aware of available tort remedies and be prepared to properly and promptly investigate and dispatch the appropriate expert to document the condition of a fallen tree before the critical evidence reaches the chipper.
Winter storms this season have produced all-time record snowfall records in Maryland, Pennsylvania, and parts of New York. We are all familiar with the rise in insurance claims which go hand-in-hand with such weather events, including slip and fall injuries, ice dams, frozen pipes, water losses, etc. The melting of such accumulation also causes water seepage which rots roofs, damages insulation, leaks into attics, ruins gutters, and unleashes havoc to the interior of homes. Unfortunately, such huge snowfalls also bring with them huge property loss claims resulting from the collapse of roofs not able to withstand the weight of snow and ice. Successfully subrogating these roof collapse losses – which are often overlooked as resulting from an “Act of God” – requires both prompt and aggressive subrogation action and functioning slide rule.
Massachusetts Supreme Court Ignores Clear Wording of Workers’ Compensation Subrogation Statute and Intent of Legislature
Since 1939, § 15 has provided that a workers’ compensation carrier receives first priority recovery from a third-party settlement or judgment. In particular, it provides that “the sum recovered” in the third-party action (also defined as the “gross sum received in payment for the injury…shall be for the benefit of the insurer, unless such sum is greater than that paid by it to the employee, in which case the excess shall be retained by or paid to the employee.”). English rarely gets clearer. The Massachusetts Legislature clearly intended to provide the carrier with a first money right of recovery. However, that hasn’t stopped Massachusetts’ highest court, with five of its seven members appointed by Democrat governors, from taking the advice of trial lawyers who wished it read otherwise.