Does the Anti-Subrogation Rule Exist in Canada?

What is the Anti-Subrogation Rule?

In its narrowest form, the anti-subrogation rule is a legal principle that an insurance carrier has no right of subrogation against its own insured. In other words, an insurance carrier cannot sue its own insured in a subrogated action to recover payments made for a risk that is covered by the insurance policy. In the United States, however, the bar against suing one’s own insured has been extended by some courts to preclude subrogated actions beyond situations in which a single insurance policy is involved, to encompass multiple policies. Consider a situation where a subrogating insurer has, by happenstance, issued a separate liability policy to a defendant in the action. The argument for precluding subrogation in such cases is that the insurer is “suing its own insured”, even though it is clear that the suit is not against the same insured to whom it made the payments giving rise to the insurer’s subrogation rights.

Does the Anti-Subrogation Rule Exist in Canada?

To date, there is one Canadian case that has applied the anti-subrogation rule – Lacombe v. Don Phillips Heating Ltd. [“Lacombe”], a 2005 Ontario decision of Master Beaudoin. In Lacombe, the plaintiffs, Mr. and Mrs. Lacombe, claimed for damages arising from an oil spill at their residence. Most of the loss was borne by Lacombe’s insurer, Aviva, which had paid for the costs of cleanup under a homeowner’s policy of insurance. Together, the Lacombes and Aviva sought recovery of insured and uninsured losses totalling $300,000.

The action was brought against a contractor for whom Aviva had issued a liability insurance policy that responded to the subrogated claim. Aviva brought a motion on behalf of the contractor to strike the subrogated claim before a Master, arguing that the anti-subrogation rule should be applied in Canada. Importantly, Aviva’s subrogation counsel did not challenge the motion – the Court was presented with a one-sided argument.

In the result, the portion of the action advanced on behalf of Aviva alone was dismissed, despite there being no real exposure to the insured contractor. Master Beaudoin adopted the reasoning of Home Ins. Co. v. Pinski Bros, Inc. 500 P.2d 945 (Mont. Sup. Ct. 1972) [“Pinski”], a decision of the Montana Supreme Court, which held that permitting an insurer to sue its own insured for a liability covered by the insurance policy would violate basic principles of equity and public policy by:

  • allowing the insurer to expend premiums collected from its insured to secure a judgment against the same insured on a risk insured against;
  •  giving judicial sanction to the breach of the insurance policy by the insurer;
  • permitting the insurer to secure information from its insured under the guise of policy provisions available for later use in the insurer’s subrogation action against its own insured, allowing the insurer to take advantage of its conduct and conflict of interest with its insured; and
  •  constituting judicial approval of a breach of the insured’s relationship with its own insured.

As a Master’s decision, however, Lancombe is not binding on Ontario judges, nor has the decision been followed by another court. The one-sided nature of the arguments presented to the Court provides a good basis for challenging the persuasiveness of the Master’s reasoning. Additionally, there are very good reasons to argue that the anti-subrogation rule, in its broader form, should not form part of Canadian insurance law:

1. The anti-subrogation doctrine misapplies the equitable principles of subrogation. Where a defendant is coincidentally covered under a policy issued by the same carrier as the plaintiff, the plaintiff is not “suing itself”. The carrier’s rights as a subrogee under a property policy are wholly separate and distinct from the duty owed to an entirely different party under a separate contract of liability. The subrogating insurer is not simply ‘bringing an action against itself for damages’ when it happens to provide liability insurance to a defendant under a separate and distinct policy.

2. The anti-subrogation rule is contrary to established goals of tort law and principles underlying Ontario’s Insurance Act. Subrogation is based on considerations of equity and good conscience. Subrogation is viewed as serving the ends of justice by placing economic responsibility for injuries upon parties who are at fault for causing a loss. The goal of tort law to place the burden of payment for negligently causing harm does not disappear due to the introduction of insurance in the modern world. Insurance is not, in and of itself, a risk transfer mechanism between parties unless they specifically agree to such an intent. This fundamental principle should not change due to the fortuity that the same insurer writes a property policy for one insured, a liability policy for a separate company, and the one company negligently causes harm to the other. The anti-subrogation doctrine, even in its most restrictive form, would result in what has been correctly characterized by some U.S. courts as an “unbargained for, unpaid for, windfall” because a risk not otherwise insured against is, in effect, due to the “fortuitous fact” that liability is asserted against the insured by a party that also happens to be covered by the same carrier”.

3. Those who incur higher losses should pay higher premiums. Premiums for such insurance are determined, in large part, by the loss history of an insured. An individual with many losses will, and should, pay more than those who have few or none. For example, section 412(6) of Ontario’s Insurance Act provides that a system for calculating premiums must be just and reasonable, be reasonably predictive of risk and distinguish fairly between risks. Underwriters calculate the total anticipated losses for policy periods in determining the premiums to charge insureds for each policy period. The anti-subrogation rule would have the effect that the victim, rather than the tortfeasor, would bear the costs of higher insurance premiums and the possibility of becoming a less insurable entity.

4.  The anti-subrogation rule presumes bad faith conduct on the part of insurers. The concerns expressed in Pinski, adopted by Master Beaudoin, presume that insurers will breach their duties of good faith to their insured with respect to the provision of insurance under the policies in question. It anticipates that insurers will act in bad faith and then seeks to impose a ‘blanket’ remedy without regard to the circumstances of a given case. The anti-subrogation rule therefore “puts the cart before the horse”. There are other, more appropriate, remedies available to deal with any bad faith conduct on the part of an insurer. For example, the concerns expressed in Pinksi and Lancombe with respect to potential conflicts of interest and the sharing of an insured’s confidential information are not insurmountable. “Chinese walls” are a favoured technique for dealing with conflicts of interest that arise from carrying on business by large financial institutions as well as many legal and accounting firms. Chinese walls are designed to insulate sensitive documentation from the wider firm in order to prevent conflicts of interest by restricting the flow of information between different departments of the same organization.

5. The adoption of the anti-subrogation doctrine in Canada represents a marked departure from common law principles. The anti-subrogation doctrine is a recent product of American common law that is not recognized in Commonwealth countries. There is no such bar in the United Kingdom.

6. Insurers have valid reasons for pursing such claims. As recently noted by Campbell J., a duty of good faith, and in some circumstances fiduciary duty, does exist between primary insurers, excess insurers and reinsurers. This may arguably include an obligation on the part of insurers to subrogate losses for the benefit of the insurance group. Additionally, policies of reinsurance may contractually oblige primary insurers to pursue subrogated claims for the benefit of the re-insurers.

7. The anti-subrogation rule is open to exploitation by savvy defendants. As noted by the Court in Fashion Tanning, “a potential defendant could contrive to avoid being held accountable for the full measure of its product liability by merely securing small liability policies from a host of carriers, thereby frustrating any subrogation action brought against it by any of those insurers”.

8. A variety of factual patterns suggest that the anti-subrogation rule expressed in Lancombe should rejected. Consider, for example:

  • Insurance carriers with similar names are not “the same”. Some insurers are separate companies with the same parent or have related names but are really operated as separate companies. To what extent are related companies considered to be the “same entity” for the purposes of this rule?
  • What if ABC Insurance Company pays $500,001 to its insured plaintiff, but also happens to write an excess policy covering the defendant for liability limits above $500,000? Is ABC Insurance Company completely barred even though most of its claim falls below the excess limits?
  • What if ABC Insurance Company writes the first $10,000 of coverage to a tortfeasor who has adequate excess or umbrella coverage with another liability carrier? Can ABC Insurance Company collect for an amount above the first $10,000 layer of coverage?

Conclusion

Lacombe is an Ontario and the first Canadian case to consider the anti-subrogation doctrine. Although it is a 2005 decision, it has not been followed in Ontario or applied in other provinces. This effort to import the anti-subrogation rule in Canada is at the expense of historically sound tort and insurance law risk allocation schemes. As such, the reasoning underlying this decision is ripe for challenge in Canada. We will see what the future brings.

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Limitation Periods for Property Damage Losses in Canada

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:

(NOTE: Depending on the circumstances, different limitation periods may apply, or additional notice requirements may be applicable. For example, claims involving assaults or intentional acts, claims against municipalities, claims against medical professionals may be subject to additional notice requirements AND shorter limitation periods. For this reason alone, you should always seek legal advice specific to your circumstances).

ALBERTA

BRITISH COLUMBIA

MANITOBA

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.
  • UPDATE:  As of May  1, 2010, there is a general limitation period of 2 years, and an ultimate limitation period of 15 years. Limitation of Actions Act, S.N.B. 2009, c. L-8.5.

NFLD. & LABRADOR

N.W.T.

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

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.

QUEBEC

SASKATCHEWAN

YUKON

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.

What is Subrogation?

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.

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New Subrogation & Recovery Blog!

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.

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Understanding the “Burden of Proof” in Subrogated Actions: A Brief Tutorial

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.