October 2014 Subrogation Newsletter
Intersection accidents represent a disproportionate share of vehicle crashes and, therefore, a disproportionate share of litigated cases. Credible witnesses are the key to winning cases, but credible witnesses are rare, can be cross-examined, and are often reluctant to cooperate. The growing ubiquitous presence of red-light cameras and traffic surveillance are beginning to serve as rock-solid witnesses in these often tragic incidents – witnesses who won’t recant, move to Mexico or crater on the witness stand. Even the most agnostic juries tend to believe their own eyes. With the help of research by Melissa Fischer, a Marquette law student and MWL law clerk, this article will take a closer look at how you can take advantage of this under-utilized and undisputable evidence.
Confusion and inconsistency abounds regarding when and whether a motorist in a funeral procession can run a red light. There is much more at stake than missing a funeral. As you can imagine, the likelihood of a serious accident involving personal injury or property damage increases exponentially if you have a long string of cars streaming through a red light in heavy traffic. Millions of claims and subrogation dollars hang in the balance. An understanding of how funeral processions affect the legal rights and remedies of motorists and their insurers is clearly a prerequisite to the effective handling and/or subrogation of the thousands of insurance claims that flow from accidents involving funeral processions.
A new Texas Supreme Court decision in Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 2014 WL 4116839 (Tex. 2014) narrows the stranglehold of the Economic Loss Doctrine (ELD) and states that the ELD precludes recovery in tort for economic losses resulting from a party’s failure to perform under a contract when the harm consists only of the economic loss of a contractual expectancy. It no longer bars all tort claims arising out of the performance of a contract.
In Humana v. Farmers Texas County Mutual, et al., 13-cv-006111 (W.D. Tex. Sept. 24, 2014), the plaintiff, a Medicare Advantage Organization (MAO), sought reimbursement from a no-fault auto insurer. The magistrate judge previously granted the defendant’s motion to dismiss holding that MAOs did not possess a private right of action under the Medicare Secondary Payer Act. Humana objected to the Order on Report and Recommendations and, on September 24th, the district court, Judge Lee Yeakel, overturned the recommendations and joined with the Third Circuit’s Avandia decision.