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LEGAL AND PRACTICAL SUBROGATION ISSUES IN THE U.S.A.

LEGAL AND PRACTICAL SUBROGATION ISSUES IN THE U.S.A.

eceived $191,000 from

eceived $191,000 from its property insurer. The insured then brought an action onbehalf of itself and its insurer claiming that defendant’s polyurethane foam wasresponsible for spreading the fire. The defendant was also insured by the plaintiffsinsurer under a separate liability policy; however, that policy had a $5,000,000 self-insured retention. The defendant moved to dismiss the action arguing that the PiizsJzidoctrine precluded the insurer from suing its own insured.The court disagreed and said that in this situation Pinski would not apply. Inreaching its conclusion, the court said:“Upjohn has paid Aetna a premium for a products liabilitypolicy calculated on a deductible in the amount of$5,000,000, and its incurred losses for the relevant policyyear do not yet total that sum. To preclude any subrogationclaim by Aetna on behalf of any other company also insuredby Aetna which may have a valid claim against Upjohn whenthis deductible amount has not yet been exhausted mightallow Upjohn an un-bargained for, unpaid for, windfall; a risknot otherwise insured against would in effect be covered byUpjohn’s insurance policy with Aetna because of a fortuitousfact, i.e. that liability was asserted against Upjohn by a party,Transport, which also happens to be insured by Aetna. Aninsurance company might hesitate to pay promptly claims ofone insured if it could never assert a subrogation claimagainst any other insured. As a general rule, this seems anundesirable reallocation of risk.”Thus, in those instances when a defendant has a substantial self-insured retention in itsliability policy, subrogation may not be barred.In deciding whether to apply the Pinski rule, the courts will not condone tactics orpractices which demonstrate an element of bad faith to avoid the effect of Pinski. ForMP3 20204330.1-8-

example, in Keystone Paper Converters v. Neemar, Inc., l3 the subrogated insurer broughtan action against a defendant that it also insured under a separate liability policy. Ratherthan move to dismiss the action, the defendant joined two third-party defendants seekingindemnification from them. It appeared that counsel for the plaintiff and counsel for thedefendant had “scripted” this scenario to pass the liability through to the third partydefendants. The third party defendants sought dismissal of the third-party claims on thebasis that the primary subrogation claim was barred under the Pinski principle. The courtagreed and held that the defendant insured’s interests were in jeopardy even if it waspossible to pass the losses on to the third-party defendants. In the court’s view, thedefendant could end up with a judgment against it which might increase its insurancepremiums, make it a less insurable entity, or affect its credit rating. The lesson ofKeystone Paper is that courts will not condone collusive efforts to avoid the effects ofPinski.When an insurer finds itself on both sides of a subrogation action, subrogationmay be barred. One might ask why a subrogated insurer would pursue subrogationagainst an entity it was obligated to indemnify since it would seem to be taking moneyfrom one pocket and putting it in the other. However, consider the situation where thesubrogated insurer has a substantial claim against an entity it also insures, but that entityhas a low limit of primary liability and substantial excess coverage with a differentinsurer. In that situation, it would seem to be in the subrogated insurer’s interest tol3MP3 20204330.1562 F. Supp. 1046 (E.D. Pa. 1983).-9-

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