On Subrogation

This week, join us as we revisit our episode on Daubert and What Makes a Good Expert! Original Air Date: June 25, 2021. Witnesses can testify based on what they saw and heard or they can be called to the stand with expert knowledge supported by scientific data or specialized training.  But expert witnesses must satisfy the court with more than a good resume – they must also show that the methodology they used to draw their conclusions are sound. On this week’s installment, join Rebecca and Steve as they discuss the evolution of trial court standards for admitting expert testimony, from the Frye test, to the Daubert standard and beyond, and discuss what you should look for in a good expert witness.

Corporations are recognized as legal entities and separate from their shareholders, officers and directors. Does that mean that a corporate owner can never be held liable for the company’s wrongdoing?  Of course not!  “Piercing the corporate veil,” refers to the exception to this principle, where courts disregard this separateness and hold an owner responsible for the corporation’s actions as if it were their own. On this week’s podcast, join Rebecca and Steve as they explore the circumstances in which you can ask the court to ignore the corporate entity, and reach the assets of the owners.  The standards are very high, but if there is enough proof, and your facts are egregious, you may be able to get through a corporate fraud and recovery from the owners’ assets.

This week, join us as we revisit our episode on the Made Whole Doctrine for a refresher! Original Air Date: May 28, 2021. The Made Whole Doctrine protects an insured’s right to recovery before recovery is collected by its insurer.   But what if the tortfeasor does not have enough insurance to cover the loss? Is the insured entitled to recovery for pain and suffering? And the ultimate question, when is the insured considered fully compensated for the loss? Being “made whole” varies even in those states that do apply the Made Whole Doctrine. Listen as Steve and Rebecca lead you through several states’ application of the doctrine, from those that require a legal determination that the insured has been made whole before any subrogation recovery, to those that parse out the doctrine based on damage types, to those that reject it entirely.   

Workers Compensation is a very state specific thing, and recently, we have heard a lot of excited talk about work comp subrogation in Nevada.  That’s because the Nevada Supreme Court changed the long-standing common law rules establishing the system for calculating the amount an insurer could recover on a workers compensation claim in a decision handed down in 2024.  Listen in as Rebecca and Steve walk through the rules as they developed in the common law over 38 years, then suddenly changed in 2024, and the legislature’s response in 2025, to answer the question: where do Nevada work comp subrogation claims now?

 This week, join us as we revisit our episode on the Anti-Subrogation Rule for a refresher! Original Air Date: June 11, 2021. The idea that an insurance company cannot subrogate against its own insureds seems like common sense, but is this a hard-and-fast rule?  What happens when an insurance company tries to seek reimbursement for medical expenses paid to their insured when they also insure the tortfeasor who caused those injuries? What if that insured seeks her own recovery against the tortfeasor for the same medical expenses? What if an insured’s intentional act was the cause of serious injuries or death? Does their insurance company have a right to subrogate to recover those amounts from their insured? In this installment in our series, follow Rebecca and Steve as they navigate the anti-subrogation rule and explain why insurance carriers cannot typically subrogate against their own insureds, and when such actions may be permitted. 

Sometimes, the best evidence to support your subrogation case are records that were created by another company.  Will a court permit these records to be introduced, or are they destined to be barred by the hearsay rule?  Thankfully, the Business Records Doctrine allows a company to enter records previously created by an outside entity into  evidence to prove their case. On this week’s episode, Rebecca and Steve discuss what is required to properly introduce these records and how much they can influence a case. Whether invoices, emails or reports from others, find out how these records can become an influential part of a case, and how to determine if your records have the requisite indicia of trustworthiness.

This week, join us as we revisit our episode on Hearsay for a refresher! Original Air Date: July 23, 2021. Rumor has it…there are times when the evidence you are seeking to introduce in court does not come from a witness there in court, but by someone who heard something that someone else said. If you are seeking to introduce this evidence to prove the truth of what was heard, then what you have is hearsay.  Contrary to what you may have heard, hearsay isn’t always inadmissible, and sometimes, hearsay isn’t even (technically) hearsay.  As usual, it depends – on whether the speaker is available, when and why they were speaking, and what motivated that statement. On this week’s installment, Rebecca and Steve navigate the hearsay rule, its exceptions, and the exceptions to those exceptions to provide insight on precisely when out of court statements can be deemed admissible and when a court should refuse to play telephone.

The MCS-90 endorsement is a federally mandated provision that essentially transforms an insurance policy into a tool to protect the public. While often misunderstood, this endorsement isn’t about shielding the policy holder, but rather ensuring victims are compensated, even when coverage technically doesn’t apply.  If the endorsement requires an insurer to pay for damages that wouldn’t have been covered, however, they are not totally without options.  Instead, they are placed in the unusual position of having a claim against their own insured.  On this week’s episode, Rebecca and Steve explore the interesting avenues for recovery when an MCS-90 endorsement  results in payment outside of a policy, and how this endorsement allows for recovery from your insured. 

This week, join us as we revisit our episode on MCS-90 for a refresher! Original Air Date: July 30, 2019. Big trucks require big coverage – at least according to the Motor Carrier Act of 1980.  To make sure that coverage protects the public in accidents involving these big trucks, the Act requires that coverage to include an MCS-90 endorsement.  What is the MCS-90 endorsement, and what does it mean for a subrogation case involving a tractor-trailer or other large or hazardous vehicle?  Join Rebecca and Steve as they discuss the MCS-90 endorsement, and how knowing what it says can help you in your negotiations of trucking cases. You can find more information on the Financial Responsibility Requirements for large or hazardous vehicles on the Federal Motor Carrier Safety Administration’s website, and the Form MCS-90 Endorsement here.

Subrogation damages, like most civil lawsuits, are a matter of proof.  You need evidence to prove that you and your insured suffered the losses you are claiming.  So what happens when those losses are not for damaged property or medical bills, but for lost profits?  Can you ask the court to look into the future to pay for sales your insured would have made, but for the incident at issue?  On this week’s episode, Rebecca and Steve explore real scenarios to guide listeners through the legal standards that shape these complex claims and break down the core elements behind successful lost profit recovery cases.  Whether the insured business is a long-term established entity, or a brand new storefront, you may be able to successfully recover lost profits, as long as you have receipts. 

This week, join us as we revisit our episode on Third Party: Government Entities as a refresher! Original Air Date: May14, 2021 Federal and State Governments are powerful entities. But are they so powerful that they can never be sued for damages? In this installment in our series on third party liability, join Rebecca and Steve as they explain why sovereign immunity can be a liability for your case if your third party is a government entity.   The special forums for these claims, the special rules, time limits, and notice requirements that apply, and whether the entity can be sued for subrogation at all depend on which state or political subdivision is at fault.  So buckle up and take notes for your next cross country claim.

Most automobile subrogation cases are the result of negligence, but when the tortfeasor’s driving was reckless or intentional, we sometimes call it Road Rage.  Though a road rage incident may seem like an easy case, it often  proves to be quite complex, calling into question whether the opposing  insurance carrier can deny coverage, potential assumption of risk, or even if an employer could be held responsible for an employee’s rageful driving. In this week’s episode, Rebecca and Steve explore what really happens when road rage turns into a legal battle and break down real legal concepts with insight into how the law handles anger on the asphalt.

This week, join us as we revisit our episode on Third Party: Dram Shop & Social Host as a refresher! Original Air Date: April 30, 2021 You’ve seen it before: drinks flowing at your local bar on busy Saturday night. A patron who’s had too much leaves behind the wheel. If this person goes on to cause an accident, can the bar owner or bartender be held responsible for serving too much? What if it’s a house party, instead of a bar? The answer is, they might be. Sit back and drink up this intoxicating subject as Steve and Rebecca use multi-state case law as real examples for when someone other than the inebriated party can be held responsible for a victims’ injuries. From dram shop laws creating liability for bar owners, to social host laws that do the same for homeowners, use this episode as one more reason to take the keys from your own guests who have had too much. 

Lawsuits can often take years to conclude, and as life goes on, sometimes it could come to the inevitable end for people involved in the case. But what happens if a deceased individual could bring value to a case? Can testimony about their communications be presented to the court from  beyond the grave? On this week’s installment, join Rebecca and Steve as they explore this quirky, and sometimes frustrating, rule about how a witnesses’ passing could derail a case and just how to navigate the challenge of death in a subrogation case.

This week, join us as we revisit our episode on Third Party: Employer Liability as a refresher! Original Air Date: April 16, 2021 A tortfeasor goes on a donut run driving the company car and causes an accident with your insured.  Can the insured - or her insurance company - also recover damages from the company?  The answer is, “it depends.” Rebecca and Steve return to explain the factors that turn an employee’s actions from a frolic into a detour, a single liable tortfeasor into a viable claim against the employer, via the doctrine of respondeat superior.  What is within the course and scope of employment, when is an errand a frolic instead of a detour, and how can you prove this person was an employee in the first place? Listen to learn the tools you need to determine whether or not an employer has exposure when their employees cause damage both inside and outside the workplace.

When property owners fail to maintain their buildings or equipment, the damage can be costly, and even dangerous. Once you have identified that negligent maintenance was the cause of your insured’s claim, you often run into the added hurdle of maintenance agreements that seem to shift the responsibility between various potential tortfeasors.  What does this mean for your subrogation rights? On this week’s podcast, join Rebecca and Steve as they discuss the nuances of negligent maintenance and how it applies in property claims. From structure fires to faulty HVAC systems, discover the elements necessary to prove these claims and recover damages and whether subrogation rights can be waived if damages were caused by gross negligence.

This week, join us as we revisit our episode on Negligent Maintenance in Auto Claims as a refresher, then join us for our next new episode, Negligent Maintenance in Property Claims! Original Air Date: March 24,2023 That little “Maintenance Required” light on the dashboard - it’s something everyone dreads. Even worse, what if maintenance was completed as required, but not completed properly? Maintenance reminders and having them completed at a reputable shop can make or break your position in an accident. On this week’s podcast, Rebecca and Steve discuss what happens when an accident occurs as a result of negligent maintenance. Owners are required to properly maintain their vehicles, but how can you prove that an owner was negligent in failing to perform routine maintenance?  What happens if it’s the mechanic’s fault for shoddily performing that work?  Whether passenger vehicles or heavy trucks, listen in to discover how to identify responsible parties and recover on claims for negligent maintenance. 

Gifts may be nice in your personal life, but in the world of subrogation a voluntary payment can turn an insurer into an  “officious intermeddler,” without a right to recovery. What makes a payment voluntary, and who is responsible for proving it? On this week’s episode, join Rebecca and Steve as they discuss contract language, what the parties knew and when they knew it, and when issues of public policy come into play to make sure that your good claim handling does not turn into an unrecoverable gift.

This week, join us as we revisit our episode on evaluating your claims throughout the investigation process as a refresher! Original Air Date: April 2,2021 As that great American philosopher, Kenny Rogers, once sang, "You got to know when to hold 'em, know when to fold 'em" But how do you know when to walk away?  Join Rebecca and Steve as they walk through the process of evaluating a claim that looked great on intake, to tease out whether or not it was a good bet as a subrogation case for the client.  From determining the filing jurisdiction, to identifying claims and challenges, learn the steps to take to evaluate the cards you were dealt.

In our previous episode, we refreshed our 2021 episode on service by social media.  As predicted in that episode, adoption of these types of service has spread. Over the years, American’s engagement in online activities have grown and they will continue to grow for years to come. So, if we are trying to make defendants aware of a pending lawsuit, what better place to look for them than the internet? On this week’s episode, join Rebecca and Steve as they explain the innovations made to the online service process and discuss how, under the right circumstances, requests to use a defendant’s social media account as an alternative means of effectuating service of process will be granted by U.S. courts