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

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

insured’s building.

insured’s building. Home Indemnity then brought a subrogation action against severaldefendants, including an architectural firm who had a liability insurance policy with theHome Insurance Company. The court assumed that the Home Insurance Company andthe Home Indemnity Company were one and the same.The issue was whether the Home Indemnity Company could maintain asubrogation action against a third party who it also insured under a separate and unrelatedliability policy. The Montana Supreme Court refused to allow the action to proceed anddismissed the Complaint. In reaching its decision, the court said:“To permit the insurer to sue its own insured for a liabilitycovered by the insurance policy would violate these basicequity principles, as well as violate sound public policy.Such action, if permitted, would (1) allow the insurer toexpend premiums collected from its insured to secure ajudgment against the same insured on a risk insured against;(2) give judicial sanction to the breach of the insurance policyby the insurer; (3) permit the insurer to secure informationfrom its insured under the guise of policy provisions availablefor later use in the insurer’s subrogation action against itsown insured; (4) allow the insurer to take advantage of itsconduct and conflict of interest with its insured; and (5)constitute judicial approval of a breach of the insurer’srelationship with its own insured.. . . To allow subrogation under such circumstances wouldpermit an insurer, in effect, to pass the incidents of the loss,either partially or totally, from itself to its own insured andthus avoid the coverage which its insured purchased.”MP3 20204330.1-6-

The Pinski principle has been followed in several jurisdictions in the United States, buthas also been rejected in at least four others.” Furthermore, some courts will not followthe doctrine if the subrogated insurer and the liability insurer are merely related asaffiliated or “sister” companies. Fashion Tanning Co., Inc. v. Fulton Cty. ElectricalCorztrs., Inc. ’IApplication of the Pinski doctrine to a complex subrogation case can havesubstantial ramifications. For example, in a shared or layered insurance program, allsubrogated insurers who also insure a potential defendant must drop claims against thatdefendant. While the action can proceed some subrogated insurers may conclude that itis not worth pursuing the claim if the remaining defendants are marginally at fault orimpecunious.There has been at least one significant exception to Pinski where a court allowedan insurer to subrogate against a defendant that it also insured under a separate liabilitypolicy. In Transport Trailer Service, Inc. v. Upjohn Co. 12,the insured had a fire loss andloNorris v. Allstate Ins. Co. (La. App. 1974), 293 So.2d 918; Cozzi v. Government Einp.Ins. Co. (N.J. App. 1977), 154 N.J. Super. 519; Transport Trailer Sew., Inc. v. The Upjohiz Co.(E.D. Pa. 198l), 506 F. Supp. 442; Fashion Tanning Co., Inc. v. Fulton Cty. Electrical Contrs.,Inc. (1989), 142 A.D.2d 465,536 N.Y.S.2d 866.142 A.D.2d 645, 536 N.Y.S.2d 866 (1989). For a contrary result, see Royal ExchangeAssurance of America v. SS President Adams, 581 (W.D. Wash. 1981) where the court said thattwo separate insurance companies that shared the same telephone, mailing address,administrative offices and directors were one and the same. In Keystone Paper Converters v.Philadelplzia Electric Co., 562 F. Supp. 1046 (E.D. Penn. 1983), the court refused to allowsubrogation saying “I have grave doubts that the federal courts should be used by an insurer toclean up its books, and if need be, transfer funds from its liability pool to its indemnity pool.”I2MP3 20204330.1506 F. Supp. 442 (E.D. Pa. 1981).-7-

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