What is a Limitation Period?

All legal proceedings, including subrogated recovery actions, must be commenced within a certain period of time set out by legislation. The time period in which an action can be brought is called a limitation period. It is also sometimes called a prescription period. If an action is not brought within the applicable limitation period, the claim will be forever lost. Even the most meritorious subrogated claim will disappear because of the expiry of a limitation period.

What is the Purpose of a Limitation Period?

The essential purpose of a limitation period is to place a reasonable limit on the amount of time which a party may take to commence an action. This serves a number of important purposes:

• It creates an incentive for plaintiffs to bring their lawsuits in a timely fashion.
• It defines a period of time in which a defendant can know with certainty that it will be free of ancient obligations.
• It prevents plaintiffs from bringing old claims in which evidence has been lost by the passage of time

When Does a Limitation Period Start to Run?

Each province has different rules about when a limitation period begins to run. For example, in some provinces, time will start to run as soon as the facts which give rise to the claim take place. In other cases, the limitation period may not begin to run until the plaintiff discovers that he or she has been wronged. In some cases, a limitation period may temporarily stop running while parties are attempting to reach a settlement agreement. A party’s conduct may also affect the running of a limitation period. Additionally, where a plaintiff is a minor or under a disability, the limitation period may not start to run until after that person reaches the age of majority or is represented by a litigation guardian.

Which Limitation Period Applies?

The limitation period that applies in a particular case is determined by a number of factors. Just as limitation periods vary from province to province, they may also vary depending on the nature of the subrogated claim or cause of action, or the subject matter of the claim. Furthermore, some actions are dealt with by federal law in which case there may be one single limitation period that applies across Canada. Limitation periods may also vary depending upon the identity of the party being sued. For example, different limitation periods may apply if an action is brought against a municipality or other government body. The applicable limitation period may also be affected by the identity of the plaintiff, for example, where the plaintiff is a minor or under a disability. Finally, in some provinces, but not all of them, parties can agree to a different limitation period than is set out in the legislation.

You will also notice that some provinces have a maximum time period, called an “ultimate limitation period”, after which time the claim will be barred, even if the person did not ever become aware of the circumstances giving rise to the claim. The ultimate limitation may be particularly significant in claims arising out of faulty construction or environmental contamination where a defendant’s wrongful conduct may often not be discovered for long periods of time  The following is intended as an educational overview of some of the general limitation periods that will apply in claims for property losses in Canada:

ALBERTA

• General Limitation Period - 2 years commencing when the cause of action is discovered. Limitations Act, R.S.A. 2000, c. L-12, s. 3(1)(a).
• Ultimate Limitation Period – 10 years commencing when the cause of action arises. Limitations Act, R.S.A. 2000, c. L-12, ss. 3(1)(b)

BRITISH COLUMBIA

• General Limitation Period – 2 years commencing when the cause of action is discovered. Limitation Act, R.S.B.C. 1996, c. 266, ss. 3(2), 6.
• Ultimate Limitation Period -  30 years commencing when the cause of action arises. Limitation Act, R.S.B.C. 1996, c.266, s. 8(1).

MANITOBA

• General Limitation Period - 2 years commencing when the cause of action arises. Limitation of Actions Act, C.C.S.M. c. L150, s. 2(1)(g).However, a court can grant leave to continue or begin an action if not more than 12 months have elapsed between date the action was “discovered” and date of application for leave, subject to ultimate limitation period. Limitation of Actions Act, C.C.S.M. c. L150, s. 14(1).
• Ultimate Limitation Period - 30 years commencing when the cause of action arises. Limitation of Actions Act, C.C.S.M. c. L150, s.14(4).

NEW BRUNSWICK

• General Limitation Period - 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S. N.B. 1973, c. L-8, s. 9.

NFLD. & LABRADOR

• General Limitation Period – 2 years commencing when the cause of action is discovered. Limitations Act, S.N.L. 1995, c. L-16.1, ss. 5(b); 13; 14.
• Ultimate Limitation Period - 10 years commencing when the cause of action arises. Limitations Act, S.N.L. 1995, c. L-16.1, s. 14 (3).

N.W.T.

• General Limitation Period – 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S.N.W.T. 1988, c. L-8, s. 2(e)

NOVA SCOTIA

• General Limitation Period - 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S.N.S. 1989, c.258, s. 2(1)(e). However, within 4 years of expiry of general limitation period, court may disallow the limitation period, having regard to circumstances of the case – Listed are enumerated factors to consider including date of “discovery” of claim, Limitation of Actions Act, R.S.N.S. 1989, c.258, s. 3.
• Note: A 2009 version of this Act has received royal assent but has not yet been proclaimed in force.

NUNAVUT

• General Limitation Period – 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S.N.W.T. 1988, c.L-8, s. 2(e).

ONTARIO

• General Limitation Period – 2 years commencing when the cause of action is discovered. Limitations Act, 2002, S.O. 2004, c. 31, ss. 4,5.
• Ultimate Limitation Period – 15 years (commencing  from 2004 or when the cause of action arises, whichever is later). Limitations Act, 2002, S.O. 2004, c. 31, s. 15.
• Transitional Rules: Apply if a cause of action arose before January 1, 2004 and a proceeding has not yet been commenced:  (1) Claim not “discovered” until after Jan 1, 2004, then 2 years from discovery, s. 24(5)(1); (2) Claim “discovered” before Jan 1, 2004, then 6 years from discovery, s. 24(5)(4); (3); If former limitation period expired before Jan 1, 2004, then no proceeding shall be commenced, s. 24(3).

P.E.I.

• General Limitation Period – 6 years commencing when the cause of action arises. Statute of Limitations, R.S.P.E.I. 1988, c. S-7, s. 2(1)(g),

QUEBEC

• General Limitation Period – 3 years from time the right of action arises. Civil Code of Quebec, S.Q. 1991, c. 64, art. 2925.

SASKATCHEWAN

• General Limitation Period – 2 years commencing when the cause of action arises. Limitation of Actions Act, 2004, c.L-16.1, s.5.

YUKON

• General Limitation Period – 6 years commencing when cause of action arises. Limitation of Actions Act, R.S.Y. 2002, c. 139, s. 2(1)(e), (f)

Conclusion

Although it is important for subrogation professionals to be alert to some of the limitation periods which might commonly apply in property damage claims, the limitation period which finally applies in a given case can be a complex and difficult legal issue to determine and may require resort to both legislation and case law. Oftentimes, the seemingly obvious limitation period is not the correct one and in some cases, the correct limitation period may even be difficult for lawyers to identify or locate. The opinion of an experienced lawyer should always be obtained in order to ensure that a subrogated claim is not unintentionally forsaken.

I was recently interviewed by Norman Gautreau, author of “Sea Room” and “Island of First Light“, for Martindale Hubbel’s Legal News and View’s Member Spotlight with respect to its new social networking initatives. Needless to say, it was a very interesting experience. I have been asked to spread the article around (not a difficult chore). It is found on Martindale Hubbel’s “Legal News and Views” (which will require that you register), or you can view a pdf copy of the article at THIS LINK.

In Canada, generally speaking, subrogation refers to the legal right of an insurance company that has indemnified its customer for loss or damage pursuant to an insurance policy to ’step into the legal shoes’ of its customer and bring a lawsuit in the customer’s name against third parties that caused the loss or damage.  Subrogation serves a number of purposes including (1) preventing people from obtaining  ”double recovery” under both an insurance policy and a legal action; (2) ensuring that wrongdoers are held accountable for loss or damage that they have caused to others, notwithstanding that the victim may have insurance.

Canadian common law provides that an insurer must bring its legal action in the name of its customer, rather than in the name of the insurance company. The reason for this is largely historical. Originally, an insured customer was required to take all steps within his or her power to reduce a loss for which they received insurance, including exercising legal remedies against third parties. Since those remedies were personal to the customer, however, they could only be exercised in the name of the customer as a matter of procedural law. The common law did not provide a method whereby a person could be compelled to commence an action against another; therefore insurers had to apply to a Court to compel their customer to allow his or her name to be used for legal proceedings against third persons in order to reduce the loss.

Today, the right of subrogation will automatically accrue to insurers who have fully indemnified their customers under an insurance policy.  However, the legal action still must be commenced in the customer’s name, rather than in the insurance company’s name.  For more information on this topic, including Canadian case references which articulate this principle, please check out “Canadian law still requires that subrogated actions be brought in the name of insured rather than insurer“, at Cozen O’Connor’s Subrogation and Recovery Law Blog.

Check out more of Stu’s Cartoons!

If you are a dog owner in Toronto, you will know that restaurant, bar and café owners do not allow any animals, including dogs, to be brought on to their patios owing to a fear that they will be fined and risk losing their license. Yet experts have confirmed that dogs are not a health hazard. In fact, birds present more of a health risk than dogs, and yet no one appears to have informed the pigeons to keep off the patios!

The relevant law is an Ontario regulation, Food Premises, R.R.O. 1990, Reg. 562, enacted under the Health Protection and Promotion Act, R.S.O. 1990, c. H-7. The regulation prohibits a dog from being in a room where food is, among other things, “served, sold or offered for sale”,  unless the animal is “service dog”:

59. Every operator of a food premise shall ensure that in respect of the food premise,…

(e)    every room where food is manufactured, prepared, processed, handled, served, displayed, stored, sold or offered for sale is kept free from,…

(ii) subject to section 60, live birds and animals;

60. (1)  Subclause 59 (e) (ii) does not apply to,

(a)    a service dog serving as a guide for a blind person or for a person with another medical disability who requires the use of a service dog, if the service dog is in an area of the food premise where food is served, sold or offered for sale;

(2)   A dog other than a guide dog for the blind is a service dog for the purposes of clause (1) (a) if,

(a)    it is readily apparent to an average person that the dog functions as a service dog for a person with a medical disability; or

(b)    the person who requires the dog can provide on request a letter from a physician or nurse confirming that the person requires a service dog. O. Reg. 74/04, s. 4 (2).

Although the term “premises” is defined in the Health Protection and Promotion Act to include both land and structures, the regulation requires only that rooms be kept free of animals; the term “room” (which would logically seemed be a subset of a “premises”) is not defined in the regulation.

It is debatable whether a “room” would actually include a patio. For instance, the online Merriam-Webster dictionary defines the term “room” as “a partitioned part of the inside of a building”. It appears, however, that Toronto’s Public Health Inspectors are nonetheless interpreting the regulation as extending to patios.

In European countries, it is not uncommon to see pets, not just on patios, but also in the restuarants themselves. Is the concern really about health? Or is it instead an accomodation for a certain percentage of the population who feel that dogs just shouldn’t be there?  If this is the case, is this an issue that should be regulated or should it instead be left up to the owners of the premises to decide whether to allow dogs on their patios?

For those who feel strongly that dogs should be allowed on patios in Toronto,  Urban Dog Toronto is sponsoring a petition to change the current law (or, at least, its current interpretation).

Starting on October 26, 2009, it will be illegal for Ontario drivers to talk, text, type, dial or use email using hand-held cellphones or other hand-held communication or entertainment devices.   Bill 118, Countering Distracted Driving and Promoting Green Transportation Act, 2009, will amend Ontario’s Highway Traffic Act to include the following provision:

Wireless communication devices
78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

Entertainment devices
(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.

Hands-free mode allowed
(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.

Exceptions
(4) Subsection (1) does not apply to,

(a) the driver of an ambulance, fire department vehicle or police department vehicle;

(b) any other prescribed person or class of persons;

(c) a person holding or using a device prescribed for the purpose of this subsection; or

(d) a person engaged in a prescribed activity or in prescribed conditions or circumstances.

Same
(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services.

Same
(6) Subsections (1) and (2) do not apply if all of the following conditions are met:

1. The motor vehicle is off the roadway or is lawfully parked on the roadway.
2. The motor vehicle is not in motion.
3. The motor vehicle is not impeding traffic.

…

(8) In this section,

“motor vehicle” includes a street car, motorized snow vehicle, farm tractor, self-propelled implement of husbandry and road-building machine.

The Following a three-month period beginning Oct. 26, where the focus will be on educating drivers, police will start issuing tickets on Feb. 1, 2010, according to the Ontario government. Fines will range from  $60 – $500 for talking or texting when you should be paying attention to the road. Hands-free devices are still permitted, however, so  long as a driver uses a voice-activated system for dialing the number.

Sgt. Tim Burrows of the OPP says that if a driver is caught using a hand-held device, he or she may also be charged with careless driving — costing up to $1000, six demerit points and a driver’s license suspension. It will be up to the discretion of the police officer whether to charge a driver with distraction or careless driving – or the worst case scenario: both.

The House of Lords is no longer the highest  court in the United Kingdom; it has been replaced by the new Supreme Court of the United Kingdom, which has officially come into existence today (October 1, 2009).  According to the  Official Press Release, the Supreme Court will hear civil appeal cases from England, Wales, Northern Ireland and Scotland, as well as criminal appeal cases from England, Wales and Northern Ireland. The Supreme Court takes over the devolution jurisdiction of the Judicial Committee of the Privy Council (JCPC), which continues to be the final court of appeal for certain other Commonwealth countries (and was Canada’s final court of appeal until 1949)  and other jurisdictions, such as Crown Dependencies.

According to an interesting article posted by Shaunna Mireau,  ‘Substitutional Service via Facebook in Alberta’ on Slaw,  on February 5, 2009  Master Breitkreuz ordered in Knott v. Sutherland that the plaintiffs could substitutionally serve one of the multiple defendants by publication of a notice in the newspaper, by forwarding a copy of the statement of claim to the human resources department where the defendant (formerly) worked, and also by sending notice of the action to the Facebook profile of the defendant. Precedent for service in civil matters via Facebook exists from Australia and New Zealand, but has not been previously been allowed in Canada.

The Order can be cited as: This order can be cited Knott v. Sutherland (5 February 2009), Edmonton 0803 02267 (Alta. Q.B.M.)

Cozen O’Connor’s Subrogation & Recovery Blog is finally up!  The Blog deals with current issues and developing trends in the field of subrogation and recovery, both in Canada and the US. The contributors include some of the leading attorneys in this area.

As a lawyer once remarked when explaining his trial strategy to clients, “If the law is on your side, pound on the law. If the facts are on your side, pound on the facts. If neither is on your side, pound on the table.”  During the process of adjusting and investigating a claim, the notion of “proving one’s case” in a subrogated action for property damage may oftentimes appear to be an unlikely feat. Frequently, an adjuster or subrogation specialist will simply choose not to pursue a subrogated action for fear that the claim is a “table-pounder”; the claim initially appears weak or seems to be based on little or no evidence. The reality may be, however, that the claim gives rise to excellent recovery prospects.

Establishing whether the plaintiff or defendant will have the burden of proof in the subrogated action can mean the difference between winning and losing a case. In a claim for property damage it is usually the plaintiff, the insurance company suing in its insured’s name, who has the burden of proving that a defendant is responsible for the loss. However, the burden of proof is ultimately determined by the facts of each case and there are important exceptions to the general rule that the plaintiff has this burden.

WHAT IS NEGLIGENCE?

The most commonly raised allegation in subrogated property damage actions, both in the United States and Canada, is that of negligence. Negligence is legally defined as the failure to use reasonable care. A person is considered negligent at law if he or she fails to act as a reasonable and prudent person and causes harm as a result. In other words, a negligent person has done something which a reasonable person would not do or has failed to do something which a reasonable person would do, which results in damage or loss.

The Reasonable Person: A Prudent ‘Joe Six-Pack’

The reasonable person is a legal fiction created by judges to set an objective standard against which a defendant’s conduct can be evaluated. Courts have said that this reasonable person is not superhuman. He or she is not a genius, nor able to predict the future. The reasonable person has a normal level of intelligence, and makes prudence a guide to his or her conduct.  His conduct is the standard adopted in the community by persons of ordinary intelligence and prudence.

It is important to keep in mind that one of the main purposes of our negligence law is to enforce reasonable standards of conduct to prevent reasonably foreseeable risks. The law seeks to impose a disincentive for people to engage in risk-taking behavior. At the same time, a law that requires people to be overly cautious is detrimental because it is inefficient. Accordingly, the law does not require defendants to take every possible precaution to prevent a risk of harm; rather it only requires defendants to take reasonable precautions, having regard to the circumstances.[2] As you may suspect, what is reasonable in the circumstances is the subject of much debate among opposing lawyers, and often necessitates the evidence of experts.

The Elements of a Negligence Action

In order to succeed in a negligence action, the following four elements must be established:

1)            A Duty of Care - A duty of care arises when a defendant can (or should) foresee that his or her failure to act ‘reasonably’ will expose another to a risk of harm. That is to say, if a reasonable person would anticipate that a defendant’s conduct would create a risk of harm to another person or their property, then the defendant is said to owe a duty of care to that person.

2)            A Breach of this Duty – A breach of a duty of care occurs when a defendant fails to act as a reasonable person would have acted in the same circumstances. Recall that the law does not hold defendants to the standard of perfection. For example, if there is a very small (but foreseeable) risk of a very small harm occurring, but the cost of implementing precautions to prevent that harm is high, it might be unreasonable to require a defendant to take the precautions. In such a case, a defendant might not be in breach of the duty of care.

3)            Causation – A negligence action will not be successful simply because a defendant has been negligent; the defendant’s negligent act must also be the cause of the loss or damage. At some point in our day to day lives, we have all taken unreasonable or ‘negligent’ risks – for example, talking on a cell phone while driving. However, the law will only hold a person responsible for unreasonable conduct that causes another person to suffer a loss or harm.

4)            Damages – The plaintiff is required to prove his or her damages. A defendant is usually only held liable for reasonably foreseeable damages, however the law recognizes that damage can be physical, economic or psychological.

It is usually, but not always, the plaintiff who must prove to a court that more likely than not, a defendant has been negligent.  If the evidence shows that it is just as unlikely as likely that a defendant has been negligent, a plaintiff has not proven its case. Furthermore, it is not uncommon in property damage claims that the cause of a loss is equivocal. Consider the facts of Canadian National Railways Co. v. Hammil:

The plaintiff sent a refrigerated railway car to the defendant to be loaded with potatoes. Before the defendant could finish loading the railway car, a fire occurred which destroyed the potatoes and damaged the car. Unfortunately, there was no evidence showing how the fire might have started except for the plaintiff’s unsupported suggestion that the defendant’s employees may have been smoking cigarettes while loading the car. The defendant denied all liability on the basis that it was just as likely that the fire started accidentally as by its negligence.

On the facts of this case, it would be extremely difficult for the plaintiff to convince a court that, more likely than not, the fire was caused by the defendant’s negligence because no one knew what caused the fire. However, if this were a case where the defendant had the burden of proof, then the plaintiff could relax – the defendant would have to show that more likely than not, it had not been negligent and did not cause the fire. The lack of evidence would become the ‘defendant’s problem’. In other circumstances, a defendant may be responsible for the damage even where it can prove that it was not negligent.

It is therefore important for subrogation professionals to be aware of cases where the burden of proving a case may rest with a defendant, rather than a plaintiff. A claim for property damage that initially appears weak or that seems to be based on little or no evidence may actually give rise to excellent recovery prospects.

CIRCUMSTANCES AFFECTING THE BURDEN OF PROOF

A. Bailment

“Bailment” is a legal relationship that arises when a person, the “bailee” agrees to hold property belonging to another, the “bailor”, for a certain period of time and then return the property to the owner once that time has elapsed. When a person accepts payment for holding another’s property, they are held to a higher standard of care than a “gratuitous bailee” who holds property for another without benefit. A bailee who accepts payment is required to take the same care of the property in his or her possession as would a reasonable and prudent owner and will be responsible for any damage to the property caused by his or her negligence.

A bailee is not an insurer of property in his or her possession. However if the property is damaged, then the bailee is presumed to be responsible for the loss unless he or she can prove that the loss or damage was not caused by his or her negligence. This is essentially the reverse of the typical negligence action described above where the plaintiff must prove on a balance of probabilities that the defendant was negligent. The law’s rationale for placing the onus on the bailee is simply that as the person in charge of the property, the bailee is the one who has the best information about the loss. As a result, the bailee should have the burden of explaining himself when the property is damaged.

The case of Hammil, above, is an example of a bailment. The bailment was created when the defendant took possession of the plaintiff’s railway car for the purpose of loading it with potatoes. Accordingly, the plaintiff did not have to prove that the defendant had been negligent and that this caused the fire. Instead, it was the defendant who had to prove that the fire was not caused by its own negligence. The defendant could not give a sufficient explanation for the cause of fire and was accordingly held liable for the full amount of damages.

B. Carriage of Goods

A “carrier” is a party who contracts to transport goods. The common law distinguishes between a “common” carrier who carries goods for everyone on regularly scheduled routes and a “private” carrier who reserves the right to reject unattractive offers to carry goods. In either instance, a carrier has a duty to transport goods safely from the place of shipment to the place of delivery. In common law, a private carrier will be regarded as a bailee for any damage to property that has been entrusted to him for transit. However, a common carrier is liable almost to the degree of an insurer of the cargo. Regardless of whether a common carrier has caused the loss, he or she will be liable for damage to the cargo during transport unless he or she can establish that the loss falls within a relatively few classes of exemptions, as follows:

1)      Damage caused by an “Act of God”, an event of nature that is beyond the carrier’s power to predict or control;

2)      Damage caused by a “public enemy” (i.e. an act of terrorism);

3)      Damage caused by the fault of the owner, such as the owner’s failure to properly pack the goods before transport; or

4)      Damage caused by natural deterioration of the goods.

The policy reasons for imposing this level of liability on carriers are similar to those in cases of bailment. The carrier, as the party in possession of the goods, has the sole opportunity to protect the goods and has all the evidence about how the loss occurred.

However, the liability of carriers has been modified by various provincial and federal statutes which, depending on the context, may replace the common law. These statutes tend to broaden the categories of exemptions available to a carrier to exclude, for example, liability for damage resulting from riots or strikes, quarantine or the authority of law. These statutes may also impose monetary limits on a carrier’s liability based on the number of packages being carried or the weight of the goods. Carriers may also further attempt to limit their liability by contract. As a result of the complexities of this area of law, the advice of a lawyer who is experienced in handling carrier claims is usually necessary.

C. Nuisance

A person may commit a legal nuisance when he indirectly causes physical injury to another person’s land or interferes unreasonably with that person’s use or enjoyment of their land.[2] The question that is asked in a nuisance case is: “Is the defendant using his property in a reasonable manner, having regard to the fact that he has a neighbor?” To illustrate, in determining what constitutes “unreasonable” interference, Canadian courts have considered the following factors:

1)      The severity of the interference, having regard to its nature, duration and effect;

2)      The character of the locale;

3)      The usefulness of the defendant’s conduct; and

4)       The sensitivity of the property or use interfered with.

Examples of common nuisances include vibrations caused by construction work that damages the foundation of nearby buildings, or damage caused by burst water or sewage pipes. If a plaintiff can establish that a defendant has created a nuisance, the defendant may be liable for resulting damages even if the defendant has not been negligent.  Importantly, negligence is not a prerequisite to proving nuisance. Negligence examines the reasonableness of a defendant’s conduct, whereas nuisance law only considers whether the effect of the defendant’s conduct, from the plaintiff’s point of view, is reasonable in the circumstances.

D. Dangerous Activities

Where a person engages in an activity that is hazardous or inherently dangerous, that person may be absolutely liable for any resulting damage. All the plaintiff is required to demonstrate is that it has suffered loss at the hands of the defendant and, unlike in a case of bailment, the defendant cannot excuse itself on the basis that it took every possible precaution to prevent the damage from occurring.

A classic example used to illustrate absolute liability is that of the owner of a tiger rehabilitation center. Notwithstanding that the owner buys the strongest tiger cages available, erects ‘state of the art’ tiger-proof fencing and hires experienced tiger keepers to watch over the animals, if a tiger should accidentally escape, the owner is liable for any and all damages that result. Another example is that of a factory-owner who houses dangerous chemicals in his warehouse and carefully ensures that the storage of the chemicals accords with all industry guidelines. If the chemicals somehow escape from their containers, the owner is still liable for the damage. The absence of negligence is not a defense.

The law imposes this absolute liability in situations that are inherently dangerous in order to discourage reckless behavior and unnecessary loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying litigation and allowing a plaintiff to become whole more quickly.

SUMMARY

In property damage claims where there is little or no evidence as to what has caused a loss, a subrogating insurance company may nevertheless have an excellent opportunity to recover against a potential defendant. A defendant who was in possession of the plaintiff’s property as a bailee or carrier at the time of loss may have to prove that it was not responsible for the plaintiff’s loss or that it satisfies an exception to liability. The common rationale for calling on a defendant to account for loss in these cases is that the defendant, as the party with control of the goods at the relevant time, will have the best knowledge of events leading up to the loss and the opportunity to have taken precautions to prevent the damage from occurring.

Alternatively, where a defendant’s actions or conduct have the effect of damaging the plaintiff’s property, a plaintiff may be able to hold a defendant liable even without proving negligence. If the defendant’s actions are inherently dangerous or interfere unreasonably with the plaintiff’s property, the defendant may be liable. In order to obtain optimal recovery in subrogated property claims, subrogation professionals and their legal counsel must be alert to potential theories of liability that arise on the facts of each case.

Facebook, Inc. has announced that beginning Saturday, June 13th at 12:01 a.m. U.S. EDT, users of the Facebook website will be allowed for the first time to create personalized URLs for their Facebook pages (facebook.com/yourname).  Facebook, Inc. has created an online form for rights owners interested in preventing their trademarks from being registered as usernames by Facebook users . Trademark owners can reserve their trademark on the Facebook platform by submitting relevant information to Facebook, Inc. through their trademark protection contact form. Facebook has set up this page with some additional information and FAQs.