tions conducted by insurance companies that identify this defect and make it
public. If these investigations never occurred, how much longer would it take to
get these products off the market? How
much additional property damage or personal injury would occur? One example
of an insurance investigation resulting in
a safer society was covered in the Wall
Street Journal (Sept. 6, 2000). A researcher at State Farm received multiple reports
of Firestone tires on Ford vehicles that
were failing and causing property damage, injuries, and deaths. He ultimately
reported his findings to the National
Highway Transportation Safety Administration (NHTSA), which helped lead to
the recall of more than 14 million tires,
and undoubtedly the creation of safer vehicles. In many insurance claims, the subrogation investigation is the only inquiry
into the cause of a loss. The community
as a whole benefits each time a defective
product or procedure is identified. While
the benefits of subrogation seem quite
obvious, it may surprise you that there is
often great opposition to the practice by
the plaintiffs’ personal injury bar.
Confession #3
Subrogation counsel can assist plaintiffs’ personal injury counsel, and have a
positive effect on a case. I often work with
lawyers for injured parties who are making auto accident, worker’s compensation,
or health insurance claims. Some are ad-versarial from the outset, worried about
one thing: Is my client going to take money out of the client’s pockets when settlements are reached with the tortfeasor?
Plaintiffs’ counsel have the ethical duty to
represent their clients’ interests. I have the
ethical duty to represent mine. I firmly believe that these two goals can co-exist, and
that by working together, plaintiffs and
subrogated carriers can maximize results.
Subrogation attorneys can provide
many benefits to a claim. They may have
access to more information about what
happened initially than any other partici-
pant in the case. Because of the volume of
claims that subrogation attorneys handle,
they work with a cadre of experts around
the country on a regular basis who are
often leaders in their field of forensics.
Subrogation attorneys may have more
experience with product liability cases
than most plaintiffs’ firms. Subrogation
attorneys develop specialized expertise in
the handling of product cases due to the
volume of cases they receive from insur-
ance carriers. In injury cases involving a
work-related injury, workers’ compensa-
tion subrogation counsel can often ob-
tain the cooperation of the employer, and
therefore gain easier access to relevant
evidence which can be important to a
case. Subrogation counsel may have bet-
ter relationships with the defense counsel
than plaintiffs’ counsel might have. Subro-
gation counsel has a high volume of cases
and can develop relationships over time
that assist in moving cases towards reso-
lution Subrogation counsel is sometimes
viewed as a neutral observer by a media-
tor and may help the mediator find an av-
enue to reach consensus.
Confession #4
I am a plaintiff ’s attorney. In my early
days of practice, I used to belong to the
plaintiffs’ trade associations. I firmly believe in the power of organizations to
make professionals better at their jobs.
I have always viewed my practice as a
plaintiffs’ practice. I do plaintiffs’ work
for the insurance industry. However,
when I attended the plaintiffs’ bar meetings, I was always asked why I was there.
I would reply that I handled plaintiffs’
cases. The response from the other plaintiffs’ lawyers was always that I worked for
insurance companies, as if that disqualified my participation.
I never had any interest in belonging to
the defense bar associations. I was not a
defense attorney. It became clear to me
that subrogation was perceived by others as a world unto itself. The only solution was to create an association for
the subrogation community. In 1998,
the National Association of Subrogation
Professionals (NASP) was born. Approximately 2,500 professionals belong
to the association, including lawyers,
insurance professionals, and others who
support the industry.
Interestingly, people at the insurance
companies who worked in subrogation
had the same isolated feeling. They were
that one percent of people in the insur-
ance business who made claims instead of
defending them. There was very little un-
derstanding of the world of subrogation
by the rest of the claims world. NASP has
helped our industry by creating a sense of
unity and understanding. One constant
about subrogation nationally, leads me to
my last confession.
Confession #5
Truth is stranger than fiction. Many
people may view the work of an attorney representing an insurance company
as boring and mundane. I can tell you
without a doubt that representing an insurance carrier in a subrogation case can
be anything but boring. The factual scenarios giving rise to a subrogation claim
can range from the case of turkey bowling in a super market aisle, to fire caused
by spontaneous combustion of oil rags, to
something as tragic as the I-35W bridge
collapse.
The work of a subrogation lawyer requires ingenuity, creativity, and open-mindedness as the subrogation team develops and follows through on a theory of
liability aimed at a recovery. It is the experience of working through the challenging and unique cases, often with other
lawyers representing the injured parties
and defendants, that gives me satisfaction
in my field. Most Minnesota lawyers really do good work for their clients, even
subrogation lawyers.
Footnotes
1 Mason v. Sainsbury and Another (1782) 3
Doug. 61.
2 Westendorf by Westendorf v. Stasson, 330
N. W.2d 699 (Minn. 1983); Travelers Indemnity
Co. v. Vaccari, 310 Minn. 972, 45 N. W.2d 844
(1976); Time Ins. Co. v Opus Corp., 519 N. W.2d
470 (Minn. Ct. App. 1994).
3 RAM Mut. Ins. Co. v Rohde, 820 N.W.2d 1
(Minn. 2012).
4 NASP Automobile Subrogation Benchmarking Study.
Jeffrey M. Baill is a partner at Yost & Baill
LLP, where his practice areas include general subrogation litigation, fire and product
liability subrogation, subrogation consulting, arbitration, and mediation. He is also
a lifetime member of the NASP Board of
Directors. Baill may be reached at 612-338-
6000; jbaill@yostbaill.com.
