Showing 19 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 ›

What is Cyber Subrogation?

Cyberattacks have become increasingly frequent and costly.  In 2015 alone, an estimated 300 million records were leaked and over $1 billion stolen.  By 2017, this number has only risen, with global companies becoming frequent targets.  This year, a specific malware cyber-attack orchestrated and launched on Tuesday, June 27, 2017 used a “NotPetya” attack.  The malware is called NotPetya because it masquerades as the Petya ransomware.  “This [malware] is definitely not designed to make money.  This is designed to spread fast and cause damage, with a plausibly deniable cover of ransomware”.[1] Read More ›

DTPA Claims: Upstream Liability and Subrogee Standing


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 ›

Subrogation: From Loss to Verdict

Subrogation is the right for an insurer to step into the shoes of their insured to sue, most often in the name of the insured, to recover money paid to the insured by their insurer as a result of a loss caused by a third party(ies).

Over the past 20+ years, Donato, Minx, Brown & Pool, P.C. (“DMBP”) has teamed up with various forensic experts, engineers and specialists to investigate numerous large losses (exceeding a combined $5,000,000,000+) in damages to insured facilities or sites throughout the world and 1,000s of incidents. 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. 

Read More ›

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 ›