July 2016 Subrogation Newsletter
In the 2003 Walt Disney blockbuster Pirates of the Caribbean: The Curse of the Black Pearl, Hector Barbossa and the crew of the Black Pearl are in a cavern trying to reverse their curse when Elizabeth invokes the right of parley and notes that, according to the Pirate Code, she must be taken to their captain. Barbossa reluctantly agrees, but later reneges on this promise stating, “The Code is more what you’d call ‘guidelines’ than actual rules.” The same can be said of current sovereign immunity law regarding when a state or a local political subdivision of a state can be sued in tort. Knowing when and how a tort action against governmental entity can be pursued, including pursuit of subrogation claims, is indispensable for today’s claims professionals. A link to our newest chart entitled “State Sovereign Immunity and Tort Liability In All 50 States” is provided.
In a recent major water and mold damage subrogation case in New York, the focus was on negligent maintenance and the failure to detect a major defect in a commercial HVAC system, which ultimately led to major water and mold damage and a large subrogation claim. The interesting aspect of this case, aside from the recovery we obtained, was not the science or HVAC technology involved. It was the English language. Words matter, and at times, can be the subrogation professional’s best friend – or worst enemy.
The residential home moving industry is changing rapidly and it’s essential that the subrogation professional keep up to date on the most recent developments. Commercial carriers and other entities have entered the residential home moving industry and this has led to some major innovations. These changes are not limited to the moving industry, but are also having a profound impact on the subrogation field.
While drafting this article, I looked up at a video monitor in my office which streams Fox News. Two men playing Pokémon Go had just fallen off a cliff in Encinitas, California. It was not reported at the time what injuries they sustained, but the men were taken to a trauma center. One of them fell onto a beach about 80 feet below, while the other dropped 50 feet. The men told rescue officials they had been trying to catch a Bulbasaur when they fell. Pokémon Go has become a cultural phenomenon overnight, and it won’t be long before we see the first lawsuits against the creators of the game. Lawyers are already advertising for clients who have been injured while playing.
Matthiesen, Wickert & Lehrer, S.C. (“MWL”) is pleased to announce that Sara Schmeling and Amy Smith has joined the firm as an insurance litigation associates.
Nancy A. Case will be presenting a live webinar on Improving Plan Subrogation Language on September 21, 2016 from 10:00-11:00 a.m. (CDT). This webinar is free to attend and will assist subrogation professionals and plan underwriters in addressing weaknesses in their plan’s subrogation language which can potentially cost the plan millions of dollars. For more information on this webinar and/or to register for it, click HERE.