Showing 17 posts in Subrogation.

Potential Barriers and Limitations to Successful Cyber Subrogation

In a previous blog, we discussed “What is Cyber Subrogation?”  This week's blog will focus on potential barriers and limitations to successful cyber subrogation.  While this list is non-exhaustive, it gives an overview to the various barriers and limitations to successful cyber subrogation.  These barriers include (1) contractual waivers and limitations; (2) a lack of clear applicable standards; and (3) the first individuals to investigate the breach or attack are likely the later target defendants, i.e., the fox guarding the henhouse analogy. Read More ›

DTPA Claims: Upstream Liability and Subrogee Standing

Introduction

While the legislative purpose underpinning the Texas Deceptive Trade Practices Act (DTPA) urges flexible interpretation and application, the DTPA was neither intended to impose liability on upstream parties nor provide a separate cause of action for assignees and subrogees seeking to recover from large consumer businesses.  The Texas Supreme Court has mandated a liberal construction of the DTPA[1] to “protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.”[2]  However, the Legislature intended there to be limits on the DTPA, including its scope of liability and standing requirements.[3] Read More ›

The New Mexico Oilfield Anti-Indemnity Act

New Mexico has enacted an oilfield anti-indemnity act, much like the legislation enacted in Texas, Louisiana and Wyoming, and previously discussed in other blogs. While the New Mexico Oilfield Anti Indemnity Act (the “Act”) is similar to other states' oilfield anti-indemnity acts in many respects, it does also contain a few distinguishing characteristics. Read More ›

The Louisiana Oilfield Anti-Indemnity Act

Last year, we began a series of posts concerning Oilfield Anti-Indemnity Acts starting with the Texas Oilfield Anti-Indemnity Act (“TOAIA”). TOAIA is the least restrictive of the anti-indemnity acts, especially in regards to the procurement of insurance. Recall that under TOAIA, parties may expressly agree to procure liability insurance to cover their own respective indemnity obligations in a reciprocal insurance agreement and not trigger the application of TOAIA. Further, parties may even enter unilateral indemnity agreements so long as the agreement caps the amount of insurance the indemnitor obtains at $500,000. Essentially, TOAIA expressly allows parties to avoid the prohibition on certain indemnity agreements by providing insurance. Read More ›

Types of Subrogation

Subrogation rights can arise in three distinct ways: equitably, contractually, and statutorily.  Read More ›

Subrogation: An Insurer’s Rights

Subrogation is broadly defined as the substitution of one person in the place of another with reference to a lawful claim or right. 

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An LHWCA Insurer’s Right to Jones Act Subrogation

The Longshore and Harbor Workers’ Compensation Act (LHWCA), like other workers’ compensation schemes, provides a compromise between land-based maritime workers and their employers: workers who are injured on the job receive quick, guaranteed compensation from their employers regardless of fault, and employers are generally absolved from any further liability in relation to such injuries. However, the LHWCA generally preserves an injured worker’s remedies against third parties who may be “liable for damages.” Read More ›

The “Anti-Subrogation Rule”: An Insurer’s Right of Subrogation Against Its Own Insured

“Subrogation” is the legal doctrine which allows one party to take over the rights or remedies of another party against a third party. In other words, subrogation allows one party to “step into the shoes” of another. Read More ›

Defining and Obtaining Loss Specific Technical Specialists

Due to large-loss subrogation’s complexity and often highly technical aspects, a key component of an efficient and successful subrogation action is the technical members of the large-loss investigation team. These technical members will often be mechanical, chemical, civil, electrical, structural, and metallurgical engineers who are generally familiar with the design, operation and failure modes of industrial machinery and processes. Read More ›

Subrogation Standards, Codes, & Procedures

A large loss investigation, conducted for the purpose of subrogation, may require following procedures and codes in many different areas: inspection, testing of evidence, and defective equipment to name a few. The organizations listed below are suggestions of places to begin when investigating the loss of a typical facility, such as a refinery or power plant. Read More ›

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