Filed Under:Claims, Litigation

Through the Looking Glass

Subrogation Issues for the Catastrophe Adjuster

Flooding, tornados, severe storms, and other catastrophic losses present unique complications when evaluating potential for subrogation recovery. In 2011, there have been many catastrophic losses: flooding in Australia with 35 fatalities and overall losses at $7.3 billion; severe storms and tornados affecting Missouri, Oklahoma, Arkansas, Minnesota, and Kansas, including a devastating twister that leveled the town of Joplin, Mo. on May 22. There were 170 fatalities related to U.S. severe storms, with overall losses at $7 billion.

Separately, 330 tornados hit five southern states between April 22 and 28, 2011, impacting towns in Mississippi, Oklahoma, Georgia, and Tennessee, resulting in 350 fatalities, with overall losses at $7.5 billion. New England also sustained a 6.3 magnitude earthquake, resulting in 181 fatalities and overall losses estimated at $20 billion. The enormity, scale and shortage of available resources in the loss areas further complicate recovery efforts.

CAT Subrogation Training
Most property insurers have CAT team members pre-designated to respond to catastrophic losses. Those CAT teams should receive pre-deployment subrogation issue-spotting training, which should occur prior to responding to the loss site to ensure potential subrogation opportunities are evaluated by the on-scene CAT team member.

It is important to keep in mind the basis for subrogation, which was developed to ensure a party who causes a loss is held responsible. It is not a rigid concept; it changes as justice dictates. As one court noted, “Subrogation advances an important policy rationale underlying the tort system by forcing a wrongdoer who helped to cause a loss to bear the burden of reimbursing the insurer for payments made to its insured as a result of the wrongdoer’s acts and omissions.” State Farm Gen. Ins. Co. v. Wells Fargo Bank, N.A. (2006) 143 Cal.App.4th 1098, 1119.

Training should cover how to properly secure a loss site; when to bring in security; how to identify potential parties and place them on notice; when to bring in building consultants and counsel; how scene inspections are conducted; maintenance and protection of the loss site while the investigation is ongoing; use of standardized procedures for inspections; handling of evidence; and preservation of evidence, and so on.

Training should also cover the need to obtain contracts or involved leases and their provisions’ potential impact on subrogation. Rapidly obtaining these documents is critical because it shapes who may be a viable, responsible party to pursue. Further, how best to preserve key critical witness statements about the loss needs to be covered.

Spotting product failures poses additional training requirements. The key is to accurately identify the product (type, brand, model/serial number, manufacturer, seller, and so on). The subrogation investigation training must also stress the need for prior repairs, maintenance, and recovering exemplars from the loss site.

Structural failures often require obtaining data on the weather to include wind speeds in the area, building specifications for wind and building code requirements. Evaluation of brackets, trusses, and membranes all need to be checked. The CAT team member’s checklist should cover those areas and others as part of his or her initial size-up of the loss.

A common sense review is best. CAT members will be stressed by the enormity of the losses, personal tragedies and extreme lack of resources in the affected areas. Nonetheless, when unusual damage is noted in areas not seen in comparable areas, further subrogation inquiry needs to be made. Why did that damage happen only there? Should a qualified building construction consultant be hired? Should counsel be retained? Having standardized evidence inspection, handling, cost sharing (maintenance, security, and so on), and testing agreements pre-drafted, with fill-in blanks ready to go, are strongly encouraged.

Get Ready, Be Safe, Go!
CAT team members need prepared kits to ensure their safety, as well as basic tools to evaluate subrogation issues. Emergency kits must have basic supplies often not available in a catastrophe zone. Water, non-perishable food, hand-crank radios with cell phone chargers and flashlights all need to be part of the emergency kit for work in the disaster area. The American Red Cross offers a detailed checklist online called “Be Red Cross Ready,” which covers what safety issues should be considered and specific catastrophes, such as earthquake, wildfire, flood, landslide, hurricane, tornado, and tsunami. As mentioned, blank prepared evidence inspection, handling, cost sharing (maintenance, security, and so on) and testing agreements need to be part of the CAT kit. Blank prepared standardized notice of loss letters should also be available. The most important rule is safety of all team members—to return unharmed.

In addition, an on-call list of consultants must be part of the CAT kit. That list should include mobile vendors that can respond to the loss site. Categories to consider are experts (building, general contractor, subcontractor specialties, and so on), security companies, remediation companies and counsel, amongst others. Those consultants who can independently deploy to the loss area are generally favored over those who cannot.

Getting to the Scene
Reaching the loss site can be challenging for professionals because of the devastation to roads, airports, and waterways. It is not uncommon for private helicopters to be contracted to get CAT members to severely impacted areas. It may be critical to photograph the loss areas from the air. A pattern of destruction versus no destruction may be apparent from above. Building construction issues implicating potential subrogation may exist because of differing materials and construction techniques used within those substantially similar buildings to explain damage versus no damage, and you may not be able to recognize those conditions from a street-level view. Video of the loss areas is also highly recommended.

“You must run at least twice as fast as that!” said the Queen
Management of a CAT loss requires “running twice as fast,” because of the lack of resources in the affected areas. Steps to follow include determining:

  • Potential parties
  • Area of origin of the loss
  • Security issues
  • Evidence preservation
  • Controls of site access
  • Protocols for investigation
  • Evidence removal procedures
  • Complete documentation for the area of origin
  • Communication systems are operable
  • Agreed-upon destructive testing protocols

Cost-sharing agreements for maintenance, security, cost of equipment rental and needed demolition.

Out of the Rabbit Hole
Preplanning, pre-staging, and training assists CAT members in evaluating subrogation issues as part of their claims handling duties. That preparation minimizes delays inherent in adjusting catastrophic losses. These suggestions provide claims professionals with a concise outline to manage a loss site while preserving subrogation opportunities and avoiding creating a “looking-glass book” while in the catastrophe zone.

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