Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFirst Come, First Served: Subrogating Multiple Claims in Excess of Policy LimitsFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Total Loss Formula (See here for definition).
Cost of parts and labor minus the salvage value makes it uneconomical to repair or rebuild. Idaho Code § 49-123(2)(o).
Automobile and Property: No applicable statute, Administrative Code provision or case law exists. Idaho’s Department of Insurance orally expresses a preference that the insured be reimbursed its deductible first – no statutory support requires this.
Diminution of Value
First Party: Idaho courts have addressed diminution by speaking to the requirement, in a suit against a title company, to show some diminution in value of the real property. Boel v. Stewart Title Guaranty Co., 43 P.3d 768 (Idaho 2002).
Third Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits
An Idaho liability insurer’s actions in settling with one of several victims will be assessed on a case by case basis. McKinley v. Guaranty Nat’l. Ins. Co., 159 P.3d 884 (Idaho 2007). An automobile liability insurer’s delay in settling a claim arising out of accident with multiple victims was held not to be intentional infliction of emotional distress because the insurer needed time to investigate and did seek to settle within four months of the accident, and while it could have acted more expeditiously under the particular facts at issue in McKinley, its conduct was held not reckless or beyond the bounds of decency. Id.
Funeral Procession Traffic Laws
- Idaho law defines a funeral procession as two or more vehicles accompanying the body of a dead person in the daytime. Funeral processions have the right-of-way at intersections regardless of traffic control devices. The funeral escort vehicle may (1) direct the other vehicles in the procession to proceed through an intersection or to make any other movements or turns, regardless of any traffic control device, and (2) exceed the speed limit by up to 15 miles per hour when overtaking the procession to direct traffic at the next intersection. Processions must yield the right-of-way to emergency vehicles or when directed by a police officer. The law also provides that whenever the funeral escort vehicle enters an intersection, the other vehicles can follow without regard to any traffic control device, provided they exercise reasonable care. Idaho Code § 49-2701.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Negligence of the operator is imputed to the owner, via § 49-2417 [then § 49-1404] in all actions by or against third persons for civil damages. Bush v. Oliver, 386 P.2d 967 (Idaho 1963).
Negligence of driver is not imputed to owner/passenger unless there was joint enterprise. Gardner v. Hobbs, 206 P.2d 539 (Idaho 1949).
Vicarious Liability/Family Purpose Doctrine: No Family Purpose Doctrine.
The owner of a vehicle is automatically liable for the negligence of any permissive driver of that vehicle, up to the minimum limits of insurance required in Idaho. Idaho Code § 49-2417.
Sponsor Liability for Minor’s Driving: Idaho Code Ann. § 49-310(3): Any negligence or willful misconduct of the minor when driving a motor vehicle shall be imputed to the person who signed the application unless the minor has proof of financial responsibility as required under Idaho’s motor vehicle financial responsibility law (unless liability insurance is maintained on behalf of the minor).
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No driver may operate a hand-held wireless device and send, read, or compose text messages while driving a motor vehicle. Idaho Code § 49-1401A.
Other Prohibitions: No Applicable Laws.
Loss Of Use
Loss of Use: Yes. Collision damage may be calculated by:
- Replacement (recovery of the difference in the vehicle’s value before and after the accident, plus damages for loss of use).
- Repair (recovery of the reasonable cost of necessary repairs, including interest if borrowing is necessary, diminished value after the repairs, and damages for loss of use).
Spreader Specialists, Inc. v. Monroc, Inc., 752 P.2d 617 (Idaho App. 1987), overruled on other grounds by Walton, Inc. v. Jensen, 979 P.2d 118 (Idaho App. 1999). Rental value is not a measure of loss of use in Idaho, so whether a rental vehicle was actually procured is not relevant here. Loss of use does not appear to be recoverable for completely destroyed vehicles; the measure of damages for totally destroyed property is the value of the property at the time and place of its destruction. Skaggs Drug Centers, Inc. v. City of Idaho Falls, 407 P.2d 695, 699 (1965).
Lost Profits: Loss of use calculation, including the ability to recover lost profits, is not further supported by case law or statute but for any calculation, reasonable evidence must be presented to support it.
Med Pay/PIP Subrogation
Med Pay: Idaho Code § 41-2505; Rinehart v. Farm Bur. Mut. Ins. Co. of Idaho, 524 P.2d 1343 (Idaho 1974).
PIP: Coverage not applicable.
Made Whole: No reported state court cases applying Doctrine.
Statute of Limitations: The two (2) year personal injury statute of limitations runs from date of insured’s accident. Idaho Code §5-219 (1998).
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: Idaho Code § 49-602.
Common Law Rule: A vehicle owner is not liable for injuries to a third party caused by a thief driving negligently. The thief’s negligent operation of the vehicle is an intervening force constituting a superseding cause. Gamble v. Kinch, 629 P.2d 1168 (1981).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax. However, Idaho Department of Insurance’s website states that an insured can recover sales tax, title fees, and release of liability fees. http://www.doi.idaho.gov/consumer/claim_faq.aspx
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax. A claim against an insurer for breach of duty of good faith is only available to first-party insured parties. Idaho State Ins. Fund v. Van Tine, 132 Idaho 902, 908, 980 P.2d 566, 572 (1999).
Pedestrian and Crosswalk Laws
Idaho Code § 49-702: Vehicles must stop for pedestrians in crosswalk. Pedestrians must not leave curb when cars are too close to stop in time.
Idaho Code § 49-704: Pedestrians must yield to cars when outside of crosswalks. No crossing diagonally. At intersections with traffic signals, pedestrians must use crosswalk to cross.
Summary: Pedestrian crossing outside crosswalk in violation of ordinance before being hit qualifies as negligence per se. Rosevear v. Rees, 77 Idaho 270, 291 P.2d 856 (1955).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Recovery of physical damage and loss of use are not prohibited or otherwise regulated. Terms of rental agreement control. Collision Damage Waivers not regulated.
Recovery From Third-Party: Case law allows for loss of use damages for owner of commercial vehicle (manure spreader). Nothing specifically for rental cars. Loss of use may be calculated by: 1) replacement (recovery of the difference in the vehicle’s value before and after the accident, plus damages for loss of use), and 2) Repair (recovery of the reasonable cost of necessary repairs, including interest if borrowing is necessary, diminished value after the repairs, and damages for loss of use). Spreader Specialists, Inc. v. Monroc, Inc., 752 P.2d 617 (Idaho App. 1987), overruled on other grounds by Walton, Inc. v. Jensen, 979 P.2d 118 (Idaho App. 1999).
Rental Car Company’s Liability Insurance Primary or Excess
Summary: If the owner of the motor vehicle receives compensation from or on behalf of the operator for the temporary use of the vehicle, the owner’s insurance shall be primary, and the operator’s insurance shall be secondary or excess. Idaho Stat. § 49-1212(11)(b).
Slower Traffic Keep Right
Statute: Idaho Code § 49-630 (1) and (2) and Idaho Code § 49-632
Summary: Idaho requires motorists to drive in the right lane, except when overtaking and passing another vehicle proceeding in the same direction; when an obstruction exists in the right lane; when the roadway is divided into three marked lanes for traffic, or when the roadway is restricted to one-way traffic. Slower traffic must keep right. Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle. Any vehicle proceeding at less than normal speed of traffic must be driven in the right lane except when overtaking and passing another vehicle or preparing for a left-hand turn.
Sudden Medical Emergencies While Driving
Sudden Emergency Defense Discouraged. If a jury instruction on sudden emergency can be adequately covered by general negligence instructions which take into account the sudden emergency which confronted the defendant, a sudden emergency instruction should not be given. Bills v. Busco, 97 Idaho 182, 185, 541 P.2d 606, 609 (1975).
The court recognizes certain circumstances which furnish an excuse or justification for the negligence. These include (1) anything that would make compliance with a statute impossible; (2) anything over which the driver has no control which places his car in a position violative of a statute; (3) an emergency not of the driver’s own making by reason of which he fails to obey a statute; and (4) an excuse specifically provided by statute. However, no cases involve a sudden medical emergency. Bale v. Perryman, 380 P.2d 501 (Idaho 1963).
Suspension of Drivers’ Licenses
Administrative Suspension: Driving without insurance can form basis of suspension of driver’s license. It is a criminal process. Idaho Code § 49-1232; State v. Bedard, 120 Idaho 869, 820 P.2d 1226 (1991). Proof of financial responsibility is required to reinstate license that has been suspended, and proof of financial responsibility may be shown by certification of motor vehicle liability in place for vehicle. Idaho Code § 49-1210.
Judgment: If the driver does not respond, the Department will issue an “Order of Suspension” which will suspend the driver’s license and driving privileges. If a judgment issued is not satisfied, a driver’s license can be suspended. Idaho Code § 49-326. Suspension will continue until the judgment is satisfied and proof of financial responsibility is given. Idaho Code § 49-1205.
Contact Information: State of Idaho, Idaho Transportation Dept., Idaho Div. of Motor Vehicles, 3311 W. State Street, P.O. Box 7129, Boise, ID 83707-1129, (208) 334-8000, http://itd.idaho.gov/itddmv/.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: Idaho Code § 41-1328A-D.
Summary: Any non-OEM parts that are used must be marked with the name or logo of their manufacturer and the name and/or logo must visible after installation whenever practical. The insured must be given a written estimate that states that non-OEM parts will be used and what parts will be used must be identified specifically. Lastly, the estimate must have a disclosure attached that informs the customer that the manufacturer/distributor of the non-OEM parts has warranted them, not the vehicle manufacturer.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Idaho Tort Claims Act: Every “governmental entity” (including “political subdivisions” such as counties, cities, municipal corporations, school districts, etc.) is liable for its employees’ negligent acts within the scope of employment to the same extent a private person would be. Idaho Code § 6-903 (1976).
Notice Deadlines: Notice of Claim against “political subdivision” must be filed with the clerk or secretary within 180 days and action must commence within two (2) years. Idaho Code §§ 6-909 and 6-911. For county, suit must be filed within six (6) months after first rejection of claim. Idaho Code §§ 5-221.
Claims/Actions Allowed: A governmental entity will be held liable for the negligence of their employees while driving a motor vehicle as long as the employee was driving while in the scope of their employment and no exceptions apply. Teurlings v. Larson, 156 Idaho 65, 320 P.3d 1224 (2014). “Governmental entity” means and includes the state and political subdivisions as herein defined. Idaho Code § 6-903(2).
Comments/Exceptions: Idaho’s “political subdivisions” and their employees while acting within the scope of their employment and without malice shall not be liable for: (1) An act or omission in the execution of a statute or a discretionary duty; (2) Any claim arising out of assault, battery, misrepresentation, false imprisonment; and (3) Arises out of the collection of any tax or fee. See Idaho Code § 6-904; § 6-904 (a); and § 6-904 (b) for other specific exceptions.
Damage Caps: “Political subdivision” not liable for damages from a single occurrence exceeding $500,000. This limit does not apply if the political subdivision has purchased liability insurance in excess or if the action is caused by willful or reckless conduct. Idaho Code § 6-926. No punitive damages against “political subdivision.” Idaho Code § 6-918.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Idaho Tort Claims Act.
Every governmental entity is subject to liability arising out of its negligent or otherwise wrongful acts or omissions and those of its employees acting within the scope of employment to the same extent a private person would be liable. Idaho Code § 6-903 (1976).
Notice Deadlines: Tort claims against the State shall be filed with the Secretary of State within 180 days from when the claim arose and action must commence within two years. Idaho Code §§ 6-905 and 6-911.
Claims/Actions Allowed: A governmental entity will be held liable for the negligence of their employees while driving a motor vehicle as long as the employee was driving while in the scope of their employment and no exceptions apply. Teurlings v. Larson, 156 Idaho 65, 320 P.3d 1224 (2014).
Comments/Exceptions: Idaho and its employees while acting within the scope of their employment and without malice shall not be liable for:
(1) An act or omission in the execution of a statute or a discretionary duty;
(2) Any claim arising out of assault, battery, misrepresentation, false imprisonment; and
(3) Arises out of the collection of any tax or fee.
See Idaho Code § 6-904; § 6-904 (a); and § 6-904 (b) for other specific exceptions.
Damage Caps: Idaho shall not be liable for damages from a single occurrence exceeding $500,000. This limit does not apply if the State has purchased liability insurance in excess or if the action is caused by willful or reckless conduct. Idaho Code § 6-926. No punitive damages against the State. Idaho Code § 6-918.
General Tort Laws/Statutes
Prohibits Broad Indemnity. Applies to Construction Contracts or Agreements. Idaho Rev. Stat. § 29-114.
Did not affect contracts enacted prior to statute effective date in 1971.
Modified Joint and Several Liability. Joint and several only for vicarious liability and defendants acting in concert. Idaho Code § 6-803.
Contribution plaintiff is entitled to contribution from a tortfeasor whose liability was extinguished by the settlement, either in main action or separate action. Idaho Code § 6-803 (1971); Horner v. Sani-Top, Inc., 141 P.3d 1099 (Idaho 2006).
The statute of limitations is three (3) years. Idaho Code § 6-803; Porter v. Farmers Ins. Co. of Idaho, 627 P.2d 311 (Idaho 1981).
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 50% Bar. Damaged party cannot recover if it is 50% or more at fault. If 49% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff may not recover if he is 50% or more at fault. Idaho Code § 6-801.
Dog Bite Laws
Dog owner will be liable if they were negligent or had knowledge of the dog’s dangerous propensities. Idaho Code § 25-2805.
Economic Loss Doctrine
Majority Rule. Absent accompanying personal injury or property damage to property other than the product, purely economic losses alone are not recoverable in tort. Duffin v. Idaho Crop Improvement Ass’n, 895 P.2d 1195 (Idaho 1995). An exception exists when there is a special relationship involved, such as professional or quasi-professional relationships, or there is “parasitic injury to person or property.” Id.
In Safeco Ins. Co. of Illinois v. LSP Products Group, Inc., 12022 WL 3101577 (D. Idaho 2022), the insured purchased a newly built home which promptly sustained a water leak in the master bathroom. Safeco Insurance Company of Illinois (“Safeco”). Safeco paid the damages and sought subrogation against LSP Products Group, Inc. (“LSP”), the manufacturer of a water supply line, which was defective and caused the leak. Safeco sued based on product liability, negligence, breach of warranty, and malfunction/circumstantial evidence of defect. The defendant filed summary judgment arguing that these claims are all barred by Idaho’s Economic Loss Rule. The court granted the motion because it decided the ELD applied to the house, blinds, oven, dishwasher, and lost rental income. It agreed with the defendant that Idaho’s ELD depends on the subject of the transaction and that the whole house, and not only the supply line, was the subject of the transaction. As such, damage to the house is economic loss. When an item is purchased as part of a larger transaction, the item is integrated into the whole subject of the transaction. The court didn’t agree with plaintiff’s assertion that while a structure’s foundation is necessarily integrated into the whole structure, a small, replaceable supply line is not integrated into the whole house.
Willful Misconduct. Parents liable for willful economic loss (property damage, theft, medical expenses, lost wages) caused by child. Idaho Code § 6-210.
Minor’s Driving. Joint and several liability will be imposed on the person signing the application for minor’s driver’s license. Smith v. Sharp, 375 P.2d 184 (1962).
Child must be under 18-years-old. The limits of liability are $2,500.00.
Tort of Spoliation: The sale of the vehicle that is the subject of this lawsuit constitutes spoliation of evidence under federal law. “Spoliation of evidence is the destruction or significant alteration of evidence, or the failure to properly preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Balla v. Idaho State Bd. of Corr., 119 F. Supp. 3d 1271, 1282 (D. Idaho 2015). When spoliation of evidence occurs before the litigation is filed, the sanctions are governed by the inherent power of the Court to make evidentiary rulings in response to the destruction of relevant evidence. Performance Chevrolet, Inc. v. Market Scan Info. Sys., Inc., 2006 WL 1042359 (D. Idaho 2006); Glover v. BIC Corp., 6 F.3d 1318 (9th Cir. 1993). For many years, Idaho courts had discussed this tort but never formally recognized it. In Yoakum v. Hartford Fire Ins. Co., 923 P.2d 416 (Idaho 1996), the court said that assuming Idaho law would recognize the tort of spoliation, it would require the willful destruction or concealment of evidence. In that particular case, the court found that the plaintiffs had not demonstrated that the defendants destroyed any evidence which would justify holding them liable for this tort. On October 18, 2019, however, the Idaho Supreme Court finally adopted Third-Party Spoliation as an independent tort. In Raymond v. Idaho State Police, 451 P.3d 17 (Idaho 2019), the court adopted the tort of Intentional Interference with A Prospective Civil Action By Spoliation of Evidence by a Third Party (Third-Party Spoliation). This now allows an action for spoliation damages against third parties who are not part of the underlying civil lawsuit. In Raymond v. Idaho State Police, Raymond was killed in a car accident when a sheriff deputy passed him in the left lane as he was making a lawful left turn. Criminal charges were brought and Raymond’s family sued the State Police. The state covered up and destroyed evidence that the office was under the influence at the time, and the court for the first time recognized a tort of intentional interference with a prospective civil action by spoliation of evidence by a third party. The Supreme Court established the elements a plaintiff must prove to establish this new cause of action:
- a pending or probable lawsuit involving the plaintiff;
- the defendant’s knowledge of the potential or probable lawsuit;
- the wrongful destruction, mutilation, alteration, or concealment of evidence by the defendant designed to disrupt or defeat the potential lawsuit;
- disruption of the potential lawsuit;
- a causal relationship between the act of spoliation and the disruption to the lawsuit; and
- (6) damages proximately caused by defendant’s acts.
Evidentiary Rules/Sanctions: The Ninth Circuit “has not set forth a precise standard for determining when spoliation sanctions are appropriate,” but “the majority of trial courts have adopted the following test: (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the [evidence] w[as] destroyed with a culpable state of mind; and (3) the evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Bell v. City of Boise, 2015 WL 13778741 (D. Idaho 2015) (quoting Justice v. Rockwell Collins, Inc., 2015 WL 4507445 (D. Or. July 22, 2015). The party seeking spoliation sanctions has the burden of establishing the elements. Id. Idaho courts have recognized the spoliation doctrine as a form of admission by conduct. “By resorting to wrongful devices, the party is said to provide a basis for believing that he or she thinks the case is weak and not to be won by fair means…Accordingly, the following are considered under this general category of admissions by conduct:…destruction or concealment of relevant documents or objects.” Courtney v. Big O Tires, Inc., 87 P.3d 930 (Idaho 2003), citing McCormick On Evidence, 4th Ed. § 265, pp. 189-94 (1992) As an admission, the spoliation doctrine only applies to the party connected to the loss or destruction of the evidence. “Acts of a third person must be connected to the party, or in the case of a corporation to one of its superior officers, by showing that an officer did the act or authorized it by words or other conduct. Furthermore, the merely negligent loss or destruction of evidence is not sufficient to invoke the spoliation doctrine. Moreover, the circumstances of the act must manifest bad faith. Mere negligence is not enough, for it does not sustain the inference of consciousness of a weak case.” Id.
There may certainly be circumstances where a party’s willful, intentional, and unjustifiable destruction of evidence that the party knows is material to pending or reasonably foreseeable litigation may so prejudice an opposing party that sanctions such as those listed in Rule 37(b) of the Idaho Rules of Civil Procedure are appropriate. Id.
In State Farm Fire and Cas. Co. v. Gen. Motors, LLC, 2021 WL 2269972 (D. Idaho 2021), a subrogation lawsuit arose out of a house fire caused by a 2007 GMC Acadia (the vehicle). The vehicle owner filed a claim for the property damage with his insurer, State Farm Fire and Casualty. The vehicle was separately insured by State Farm Mutual Automobile Company. State Farm Fire requested that the vehicle not be sent to the auction, but instead to a different facility. However, State Farm Auto sent it to auction and it was sold, and a month later State Farm Fire sent General Motors a subrogation demand. With respect to the first element, “[a] party must preserve evidence it knows or should know is relevant to a claim or defense of any party, or that may lead to the discovery of relevant evidence.” Brown v. Reinke, 2016 WL 107926 (D. Idaho 2016). The duty to preserve evidence exists during litigation, and during the period before litigation “when a party should reasonably know that evidence may be relevant to anticipated litigation.” Id.
The Court found, and State Farm Fire did not dispute, that State Farm Fire had an obligation to preserve the vehicle at the time it was sold at the salvage auction. Nonetheless, State Farm Fire argued that this element is not met because it did not have control over the vehicle at the time it was sold and that, instead, it was State Farm Auto that had control over the vehicle. State Farm Fire argues that it therefore cannot be sanctioned for spoliation of the evidence. However, courts have extended the affirmative duty to preserve evidence to instances where that evidence is not directly within the party’s custody or control so long as the party has access to, or indirect control over, such evidence. Cyntegra, Inc. v. Idexx Labs., Inc., 2007 WL 5193736 (C.D. Cal. 2007). “Evidence in a party’s ‘control’” has been interpreted to mean evidence that the party has the legal right, authority, or practical ability to obtain by virtue of its relationship with the party in possession of the evidence.”
Statute of Limitations
Personal Property3 YearsIdaho Code § 5-218(2),(3)
Personal Injury/Death2 YearsIdaho Code § 5-219(4)
Breach of Contract/Written5 YearsIdaho Code § 5-216
Breach of Contract/Oral4 YearsIdaho Code § 5-217
Breach of Contract/Sale of Goods4 YearsIdaho Code § 28-2-725
Statute of Repose/Products10 YearsIdaho Code § 6-1403(3)*
Statute of Repose/Real Property6 YearsIdaho Code § 5-241**
Breach of Warranty/ U.C.C./Personal Injury2 YearsIdaho Code § 5-219(4)
Breach of Warranty/U.C.C./Property Damage4 YearsIdaho Code § 28-2-725(1)
Workers’ Comp Third Party Case2 YearsIdaho Code § 72-223
Strict Product Liability2 YearsIdaho Code § 5-219
Statute of Limitations Exceptions
*10 Years or after product’s “useful safe life.” Idaho Code § 6-1403(3) (Rebuttable Presumption).
**6 Years from final completion of improvement to real property. Idaho Code § 5-241.
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 2 Years. Idaho Code § 5-219(4).
Subrogation of Medical and Disability Benefits are allowed. Smith v. USAA Property & Cas. Ins., 974 P.2d 1095 (Idaho 1999). Made Whole Doctrine does not apply. Common Fund applies. Seineger Law Office, P.A. v. North Am. Ins. Co., 178 P.3d 606 (Idaho 2008).
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: State v. Merwin, 962 P.2d 1026 (Idaho 1998).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: No.
Failure To Disclose A Basis For Bad Faith: Courts in Idaho have held that an insurer must exercise good faith in considering offers of compromise of an injured party’s claim against the insured for an amount that is within insured’s policy limits. McKinley v. Guaranty National Ins. Co., 159 P.3d 884, 888 (Idaho 2007); see also Truck Insurance Exchange v. Bishara, 916 P.2d 1275, 1280 (Idaho 1996) (holding that insurer must give “equal consideration” to interests of its insured in evaluating offers to settle). There is no duty to disclose insurance policy limits prior to the filing of a lawsuit. Idaho Rules of Civil Procedure 26(b)(2) states that a “party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.”
One-Party Consent: An individual has the right to record or disclose the contents of an electronic, oral or wire communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. Idaho Code Ann. § 18-6702(2)(d).
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 2 years for personal injury and wrongful death. Idaho Code § 6-1403(3). Statute of Repose is 10 years. Idaho Code § 6-1403(2).
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Modified Comparative. Idaho Code § 6-1404.
Non-Economic Caps/Limits On Actual Damages: Non-Economic Cap.
Punitive Y/N and Limits: Yes (Limits).
Heeding Presumption?: Limited.
Innocent Seller Statute: Yes. Idaho Code § 6-1407.
Joint and Several Liability: No. Idaho Code § 6-803.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; State of the Art; Presumption; Alcohol/Drugs; Seatbelts; Sophisticated User.
Restatement 2nd or 3rd?: Restatement 2nd.
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Condominium/Co-Op Waiver of Subrogation Laws
No language barring condo associations’ right to subrogation. Idaho Code § 55-1517.
Damage to Property Without Market Value
Service Value: No Case Law
Intrinsic Value: “Where personal property, which is injured or destroyed by the wilful (sic) or negligent act of another, has no market value, its value to the owner may be used as a basis for determining damages.” Zenier v. Spokane Intern. R. Co., 300 P.2d 494 (Idaho 1956).
Sentimental Value: “…such property should be appraised according to the actual worth of the articles to the owner, for use in the condition in which they were at the time of the fire, excluding any fanciful or sentimental consideration.” Boise Ass’n of Credit Men v. U.S. Fire Ins. Co., 256 P. 523 (Idaho 1927).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.
Idaho has avoided per se rules with regard to the “Sutton Rule” (see Oklahoma) and taken a more flexible case-by-case fire approach, holding that a tenant’s liability to the landlord’s insurer for negligently causing a fire depends on the intent and reasonable expectations of the parties to the lease as ascertained from the lease as a whole. Bannock Bldg. Co. v. Sahlberg, 887 P.2d 1052 (Idaho 1994).
An insurer cannot subrogate against an alleged wrongdoer who is an insured under the policy. Pendlebury v. W. Cas. & Sur. Co., 406 P.2d 129 (Idaho 1965).
According to Idaho statute, a court can order a defendant determined guilty of a crime which results in an economic loss to the victim to make restitution to that victim. Restitution can be ordered for any economic loss, and the existence of an insurance policy providing coverage for the victim’s loss won’t eliminate the defendant’s obligation to pay restitution.
Idaho statute defines a “victim” who could receive restitution as someone “directly injured,” a health care provider who provides medical treatment to such a victim, or a person or entity “who suffers economic loss because such person or entity has made payments to or on behalf of a directly injured victim pursuant to a contract including, but not limited to, an insurance contract…” Idaho Code Ann. § 19-5304 (West).
Made Whole Doctrine
There are no reported state court cases in which Idaho adopts the Made Whole Doctrine as it would be applicable to automobile insurance subrogation. The 9th Circuit has adopted the Made Whole Doctrine into federal common law as a default rule, but only as to ERISA health insurance subrogation. Barnes v. Indep. Auto Dealers Ass’n of Cal. H&W Benefit Plan, 64 F.3d 1389 (9th Cir. 1995). The Court in Barnes held that, unless the Plan language specifically disclaims the Made Whole Doctrine, a health Plan may not enforce its subrogation rights until the Plan beneficiary has recovered all of his damages and has been made whole.
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: For years, Idaho followed the common law CSR. Brinkman v. Aid Ins. Co., 766 P.2d 1227 (Idaho 2006). CSR modified by statute in 1990. Section 6-1606 says that plaintiff can only recover damages that that exceed the amount of “collateral sources.” After verdict, court adjusts the award, reducing for all payments made by “collateral sources.” Idaho Code § 6-1606.
Recovery of Medical Expenses Rule: Medical expenses are a “collateral source” which must be set-off against a verdict. Slack v. Kelleher, 104 P.3d 958 (Idaho 2004). Juries are allowed to see evidence of the market value, billed amount of medical expenses, not the discounted written-down amount paid under contract.
Medicare/Medicaid: These are “collateral sources.” Dyet v. McKinley, 81 P.3d 1236 (Idaho 2003).
Private Insurance: No case law on point. Courts will probably treat private insurance company write-offs similarly to Medicare and Medicaid write-offs. However, no collateral source if there is subrogation.
Related Law/Comments: “Collateral sources” do not include benefits paid under federal programs which by law must seek subrogation, death benefits paid under life insurance contracts, benefits paid by a service corporation organized under chapter 34, title 41, Idaho Code, and benefits paid which are recoverable under subrogation rights created under Idaho law or by contract. Idaho Code § 6-1606. Subrogation right itself dictates whether an award will be reduced, not whether evidence exists to show an intent to exercise that right.
Employee Leasing Laws
Similar to Georgia, if either the employee leasing company or its client provides workers’ compensation coverage to the employee, both entities are protected under the Exclusive Remedy Rule. Idaho Code § 72-103.
Hospital Lien Laws
Statute: Idaho Stat. §§ 45-701 – 705. Hospital and Nursing Care Liens.
Perfecting Lien: In order to perfect a lien in Idaho:
(1) An officer or agent of such hospital, before, or within 90 days after, such person shall have been discharged therefrom, shall file in the office of the recorder of the county in which such hospital shall be located a verified statement in writing setting forth the name and address of such patient, as it shall appear on records of such hospital, name and location of such hospital, and name and address of the officer or agent of such hospital filing the lien, dates of admission to and discharge of such patient therefrom, amount claimed to be due for such hospital care, and, to the best of claimant’s knowledge, names and addresses of all persons, firms, or corporations claimed by such injured person or the legal representative of such person, to be liable for damages arising from such injuries. § 45-701.
(2) Such claimant shall also, within one day after filing of such claim or lien, mail a copy thereof, postage prepaid, to each person, firm, or corporation claimed to be liable for such damages, at address so given in such statement. § 45-701.
Comments: The filing of such claim or lien shall be notice thereof to all persons, firms, or corporations liable for such damages, whether or not they are named in such claim or lien. § 45-701. No release of the cause of action or of any judgment shall affect the lien unless the lienholder releases the lien. § 45-704. The lien does not attach to any workers’ compensation benefits. § 45-705.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: No statute or case law specifically dealing with effect of OCIP/CCIP.
Statutory Employer Law: Statutory employers are entitled to immunity regardless of whether they actually pay the workers’ compensation benefits. Fuhriman v. State, Dept. of Transp., 153 P.3d 480 (Idaho 2007). Employee cannot sue (1) statutory employer who hired contractors and is liable to provide comp benefits, and (2) owner of premises. Idaho Code § 72-223; Venters v. Sorrento Delaware, Inc., 108 P.3d 392, 396 (Idaho 2005).
Comments: Because § 72-216 requires the general contractor to be responsible for workers’ compensation benefits to an employee of a contractor or subcontractor who has not complied with the provisions of § 72-301, a general contractor may be considered a statutory employer, while an owner of property or a project may not. Robison v. Bateman-Hall, Inc., 76 P.3d 951 (Idaho 2003). To find a person or business to be a statutory employer, the work being carried out by the independent contractor on the owner or proprietor’s premises must have been the type that could have been carried out by the employees of the owner or proprietor in the course of its usual trade or business. Harpole v. State, 958 P.2d 594 (Idaho 1998).
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? Undecided.
Statute/Case Law: None.
Rule Summary: There is no authority or precedent allowing or prohibiting the attempted recovery of damages for increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
No statute, regulation, or case decision on point. Section 386-8 describes the carrier’s subrogation interest as follows:
“…the amount of the employer’s expenditure for compensation.”
Section 386-1 defines “compensation” as follows:
“Compensation” means all benefits accorded by this chapter to an employee or the employee’s dependents on account of a work injury as defined in this section; it includes medical and rehabilitation benefits, income and indemnity benefits in cases of disability or death, and the allowance for funeral and burial expenses.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: Idaho Code § 72-223
Waiver Allowed? Nothing in the Idaho Workers’ Compensation Act or applicable case law prohibits the use or efficacy of a waiver of subrogation.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided.
Other Applicable Law: None.
Statute of Limitations: 2 Years. Idaho Code § 72-223.
Can Carrier Sue Third Party Directly: Yes.
Right to Intervene: Yes.
Recovery from UM/UIM Benefits: Undecided.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: The carrier gets first money; dollar-for-dollar.
Employer Contribution/Negligence: No subrogation when the employer is comparatively negligent.
Attorney’s Fees/Costs: Apportionment is based on the activity of each party.
Future Credit: Yes, the carrier is reimbursed attorney’s fees on each payment.
Auto No-Fault: No.
Workers’ Compensation Claims by Undocumented Employees
Statute: “Illegal alien” must be lawfully admitted for permanent residence and permanently resides in the U.S. Idaho Code Ann § 72-1366(19)(a).
Case Law: Undecided.