Big personal auto insurers will be examining past auto accident claims involving Toyota vehicles for possible subrogation action, an insurance arbitration executive predicted, as Allstate said it has a case review underway.

Mark Bunin, president and chief executive of Case Closure–a New York-based insurance arbitration and mediation firm–said large auto insurers are “going to amalgamate their serious claims involving Toyotas over the past five or six months, and see how many of them are tied to or could be tied to the gas pedal recall.”

“Then they are going to try and subrogate. And why not?” added Mr. Bunin.

At Northbrook, Ill.-based Allstate, Mike Siemienas, a spokesperson, said cases are being examined, but it is too early to discuss whether the company will be involved in subrogation activity.

“We will wait and see,” he noted.

“Allstate has processes in place because vehicle recalls occur regularly,” Mr. Siemienas added. “Allstate is in the early stages of reviewing claims involving Toyota's recalled vehicles. The results of this investigation will help Allstate determine the appropriate next steps to take on behalf of our customers.”

In the past after such reviews, the company has instituted subrogation actions, according to Mr. Siemienas.

Separately, State Farm also said it is considering subrogation action against Toyota for auto claims that occurred due to vehicle defects that have been the subject of recent vehicle recalls.

Kip Diggs, State Farm spokesperson for the Bloomington, Ill.-based insurer, told NU that subrogation is an option for the insurer if it can show that the product was in part or fully to blame for a given auto claim.

He said it is too soon at this point to have started the subrogation process on any specific auto claim, but that subrogation is something that is standard within the industry and would be a consideration going forward. “Any time a claim is filed, that's one of the things we look at–to see if there is a subrogation issue there,” Mr. Diggs said.

Regarding the Toyota recall specifically, he said, “[Subrogation] is something that we're considering.”

Actual legal actions against the carmaker on behalf of persons injured or killed from defects have been mounting. Since last November, at least 10 negligence lawsuits have been instituted seeking class-action status against Toyota in the United States and Canada, according to the Web site, www.attorneyatlaw.com.

Those cases seek compensatory damages for medical bills and other out-of-pocket expenses associated with the defective car parts and also punitive damages.

Mr. Bunin, who is an attorney, said it “may be a stretch,” but some plaintiffs with only one vehicle may sue the automaker for out-of-pocket costs and rental costs while they are unable to drive their own vehicle.

“Is Toyota insured for that?” he wondered, adding that “the consumer is going to go after the dealer. Does the dealer carry his own coverage? Is the dealer going to have to sue Toyota? That's another insurable issue. A lot of issues are going to have to get fleshed out.”

Toyota, Mr. Bunin said, will pay for the first few millions of dollars in claims itself, and then the firm's insurance layer would take over. “The worldwide market is involved in this. It is not a U.S. insurance question per se,” he remarked.

With all the publicity and notice surrounding the recall, Mr. Bunin said that an insurer could argue it has a right to deny a claim by someone who failed to bring in the auto for dealer repair.

“That's a valid defense. Clearly you [the car owner] were on notice. You are contributorily negligent. That's a basis for denial of coverage.”

According to Mr. Bunin, in addition to its other woes brought on by the recall, Toyota will now see warranty insurers charging Toyota more, because there are indications the firm knew of the gas pedal risk for some time.

There is one facet of the situation for which Toyota has no coverage, according to Mr. Bunin. The company is “not insured for loss of good will,” he said. “Toyota has lost a lot of good will.”

Meanwhile, the Property Casualty Insurers Association of America said the recall should not result in higher insurance rates for Toyotas.

“Looking forward, it is unlikely that rates would be affected by the recall,” said Robert Passmore, senior director of claims for PCI.

“Over the years, Toyotas have developed a good safety record as evidenced by the popularity of their vehicles, so it is unlikely that there will be enough accidents caused by the faulty pedals that rates will increase.”

“Insurers look at the cost of claims over a period of time for a vehicle. They are interested in how much it costs to repair a vehicle and how often the vehicle is involved in an accident,” he said in a statement.

He further advised that owners of Toyota vehicles follow the manufacturer's instructions regarding the recall and contact a dealer without delay if they have any accelerator pedal issues.

Mr. Passmore said, “In the rare occurrence where the recalled part causes an accident, the driver's automobile liability or physical damage insurance will provide coverage. If the pedal is a factor, the insurer will pay the claim for the driver and then likely seek to be reimbursed by Toyota.”

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Will Toyota Recall Spur Subrogation?

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