As a subrogation professional, often times one of the hardest aspects of the career to understand is that you have to put on your plaintiff’s “hat” in order to prove your case and make a recovery. This involves gathering facts and understanding how tort law applies in your claim.
Inevitably, when a fellow attorney or subrogation adjuster asks me for guidance on how to handle a file, I will first look for the timeline of events and try to understand what happened and when it happened, and then try to understand or explain why it happened and how it happened.
In other words, “What’s the Story?”
Every subrogation claim has a story that tells your audience (a colleague, a supervisor, a liability adjuster, an expert, adverse defense counsel, a jury) what happened. The story is the roadmap for how you will handle the subrogation claim, and explains to an adverse party what their liability is and why they should pay you for the damages incurred.
However, often times, the subrogation claim’s story gets lost. In order to properly tell a claim’s story, you will first need to perform some investigation and ask some questions.
Initially, your insured will be the best source for the facts of a subrogation claim. Not only should you gather information related to the date of loss, but also, what occurred in the past? When was the part installed? Were any previous repairs made to the product or in the area of the loss?
Next, because the insured may have limited information (maybe they recently purchased the house or a contractor was involved in making repairs), it is also critically important to identify all of the parties that are involved in the loss. This will allow you to not only identify any additional documents that you should request (service invoices, purchase receipts, etc.), but you will also have a list of parties that should be placed on notice of any potential inspections.
A subrogation claim can be challenging because you never know where the facts will lead or what facts, that seem innocuous at first, will help you (or potentially could be the key to your case) in the future. The only thing that you can do is have processes and procedures in place for investigating potential subrogation claims, to make sure that you are giving yourself the best chance at success.
Once you have a timeline of events (what happened and when it happened), you will be in a better position to explain why and how the loss occurred. If you need to involve an expert to support your position, the timeline and the documentation gathered will be invaluable.
Your story needs a favorable conclusion, so be sure to involve subrogation counsel early to assist you in recovering on the file.
A subrogation claim’s story will often dictate the outcome of the claim and the success that you have in recovering money in the matter. The better story you are able to tell, the more success you will have in obtaining a recovery.
If you should have a question regarding this article or product liability subrogation, please contact Aaron Plamann at aplamann@mwl-law.com.
