IMPAIRING YOUR INSURER’S SUBROGATION RIGHTS

Posted on April 21, 2024April 21, 2024 by David Adelstein

Liability insurance policies have a provision that allows them to subrogate to the rights of their insured. This provision is commonly referred to as a transfer of rights provision and reads:

If the insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring “suit” or transfer those rights to us and help us enforce them.

In a recent dispute, an insurer sued its insured claiming the insured breached the insurance policy-a contract—by impairing the insurer’s subrogation rights. In other words, the insurer claimed its insured breach the insurance contract and the transfer of rights provision above.

In this case, Seneca Specialty Ins. Co. v. Jade Condominium Ass’n, 49 Fla.L.Weekly D706h (Fla. 3d DCA 2024), a unit owner sued its association and another unit owner claiming that water flowing from limited common areas within the association’s control damaged its balcony. The other unit owner that was sued crossclaimed against the association. The association’s liability insurer provided the association with a defense in this lawsuit and ultimately paid policy limits to settle the crossclaim.

The association’s liability insurer did not know, however, that the association had a separate construction defect lawsuit going against the condominium’s developer, general contractor, design professional, and subcontractors. The lawsuit included construction defect allegations resulting in leaks to units and indemnification from unit owner claims brought against the association from the defects. The association settled with the defendants in the construction defect lawsuit for significant money and provided the defendants in the construction defect lawsuit with releases. The association did not notify its insurer before its insurer paid policy limits to settle the crossclaim in the separate lawsuit.

The association’s insurer sued the association for breach of contract claiming the association impaired its subrogation rights by settling with the construction defect defendants. The association moved to dismiss, which the trial court granted, arguing (i) the insurer was first required to sue the defendants and lose based on the releases before suing the association for breach of the insurance policy, and (ii) the damages the association recovered in the construction defect lawsuit are different damages, and do no overlap with the monies the insurer paid out, i.e., the insurer paid policy limits to settle a crossclaim due to damages to the interior of a condominium unit for which the association had no standing to sue. The appellate court reversed finding the association did not need to first “sue to lose” before filing its breach of contract lawsuit against the association for impairing its subrogation rights”

Regardless of whether [the insurer] will ultimately be successful in proving that (a) the releases are fatal to its right to recover from the Construction Defect Defendants, and (b) overlap exists between the settlement monies it paid and the damages it would have sought in an action against the Construction Defect Defendants, [the insurer] has met the burden of pleading these issues. We therefore hold that [the insurer] sufficiently pled a breach of contract claim against the Association. [The insurer] pled facts establishing all elements of a breach of contract claim, including damages arising from the Association’s alleged breach of the insurance policy, and the Association failed to set forth any legally cognizable basis for why such a claim should be deemed premature.

Seneca Specialty Ins. Co., supra.

The facts in this case should remind insureds that an insurer has subrogation rights and language in the policy prevents the insured from impairing those rights. Who knows what the outcome of this case will be as there is an argument the insurer should have “sued to lose” to bolster its breach of contract claim against its insured for impairing its subrogation rights.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

PROFESSIONAL MALPRACTICE STATUTE OF LIMITATIONS IN CONSTRUCTION CONTEXT

Posted on June 4, 2023June 4, 2023 by David Adelstein

In an interesting dichotomy, which statute of limitations applies to professional malpractice claims relating to construction claims, i.e., in the construction context?

Is it the two year statute of limitations in Florida Statute s. 95.11(4)( a) that governs professional malpractice claims or is it the four year statute of limitations in Florida Statute s. 95.11(3)(c) that governs actions “founded on the design, planning, or construction of an improvement toot real property”? This dichotomy led the appeal in American Automobile Ins. v. FDH Infrastructure Services, LLC, 48 Fla.L.Weekly D1091a (Fla. 3d DCA 2023).

This case sadly involved a construction accident that led to deaths. A contractor was engaged to install an antenna on an existing television tower. The contractor hired an engineering firm “to perform a structural analysis as to the stability and weight-bearing capacity of the tower. [The engineer] was contractually obligated to assess the proposed rigging plan…to lift the loads necessary to construct the antenna.” FDH Infrastructure Services, supra. Unfortunately, after the installation of the antenna commenced, the rigging components failed resulting in workers falling to their deaths. After insurers paid out benefits, they sued the engineering firm under equitable and contractual subrogation theories. The engineering firm moved for summary judgment arguing the subrogation claims were barred by the professional malpractice two year statute of limitations in section 95.11(4)(a). The trial court agreed and granted summary judgment in favor of the engineering firm.

On appeal, the insurers argued the trial court applied the wrong statute of limitations. The trial court should have applied the four year statute of limitations in section 95.11(3)(c) governing the construction context. The appellate court agreed:

Section 95.11(3) applies narrowly to only construction-based claims. This provision stands in contrast to section 95.11(4), which encompasses any “professional malpractice” action. Consistent with this distinction, in Kelley v. School Board of Seminole County, 435 So. 2d 804 (Fla. 1983), the Florida Supreme Court approved the application of section 95.11(3) in a case of professional negligence associated with the provision of architectural services. Id. at 805, n.2 (“Both the trial court and the [F]ifth [D]istrict found the 4-year statute applicable, and we agree with the district court that the language of (3)(c), rather than (4)(a), is more specifically applicable to this case.”). The same view has been adopted by several other courts. See Havatampa Corp. v. McElvy, Jennewein, Stefany & Howard, Architects/Planners, Inc., 417 So. 2d 703, 704 (Fla. 2d DCA 1982) (applying section 95.11(3)(c) to an action by building owner against architect, contractor, subcontractor, materialmen, and bonding company utilized in design and construction of new manufacturing facility); Hotels of Deerfield, LLC v. Studio 78, LLC, No. 21-60980-CIV, 2022 WL 1666976, at *4 (S.D. Fla. Mar. 7, 2022) (“[B]ecause [section] 95.11(3)(c) is more specific than 95.11(4)(a) regarding claims against design professionals arising out of designs or improvements to real property, the former should control because more specific statutes preempt more general statutes as a matter of law.”); see also Luis Prat & Cary Wright, Rights and Liabilities of Architects and Engineers, in Florida Construction Law and Practice ch. 3.5 (10th ed. 2022) (quoting § 95.11(3)(c), Fla. Stat.) (“Actions for professional malpractice by privity claimants against the design professional, other than those actions arising out of the ‘design, planning, or construction of an improvement to real property,’ must be commenced within two years . . . .”); cf. Lillibridge Health Care Servs., Inc. v. Hunton Brady Architects, P.A., No. 6:08-CV-1028, 2010 WL 3788859, at *18 (M.D. Fla. Sept. 24, 2010) (footnote omitted) (rejecting defendant’s contention that section 95.11(4)(a) was more specific statute in action by owner of medical office building against architect and engineering firm for problems arising during construction of building and observing “Florida courts — to which this [c]ourt must defer on issues of state law — have repeatedly applied paragraph (3)(c) rather than (4)(a) in suits against architects and engineers”).

***

[I]n the instant case, FDH was contractually obligated to assess the structural integrity of the tower and rigging plan prior to the commencement of construction. Performing the calculations necessary to enable the construction of the new antenna on the existing building was part and parcel of that task. Given the parameters of the contract, the summary judgment record established the subrogation “action[s] [were] founded on the . . . planning . . . of an improvement to real property.” § 95.11(3)(c), Fla. Stat. Consequently, we find this action falls within the ambit of the four-year limitation.

FDH Infrastructure Services, supra.

The appellate court did note a contrast with a case where the two-year professional malpractice statute of limitations applied. In that case, an engineering firm was hired to review construction drawings and inspect a newly constructed home. Since the inspection involved already completed construction, “‘this [did] not transform the claim into one founded on the ‘construction’ of an improvement to real property, as that term is commonly understood.'” FDH Infrastructure Services, supra, quoting Manney v. MBV Engineering, Inc., 273 So.3d 214, 216, 217 (Fla. 5th DCA 2019).

When assessing professional malpractice claims against a design professional, etc., in the construction context, please do so with the advice and strategic input from construction counsel.

THERE ARE TIMES AN EQUITABLE SUBROGATION CLAIM IS THE MOST PRACTICAL RECOURSE FOR REIMBURSEMENT

Posted on April 22, 2018April 27, 2020 by Edward Garber

Equitable subrogation is a claim that can be pursued when a party (referred to as the subrogee) pays for damages to protect its interest–perhaps to mitigate its own exposure–seeks reimbursement from another party primarily liable for the damages. There are times a party seeking reimbursement for purely economic losses is best able to pursue an equitable subrogation claim, as opposed to a common law indemnification or negligence claim.

Equitable subrogation is generally appropriate where: (1) the subrogee made the payment to protect [its] own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights of a third party.

Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 43 Fla.L.Weekly D868a (Fla. 2d DCA 2018) quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla. 1999).

Equitable subrogation is not dependent on a contract—it is simply an “equitable remedy for restitution to one [the subrogee] who in the performance of some duty has discharged a legal obligation which should have been met, either wholly or partially, by another.” Tank Tech, Inc., supra, quoting W. Am. Ins. Co. v. Yellow Cab Co. of Orlando, Inc., 495 So.2d 204, 206 (Fla. 5^th DCA 1986).

As shown in the recent decision below, there are times an equitable subrogation claim will generate more traction for purposes of a reimbursement claim than a negligence claim or common law indemnification claim, because an equitable subrogation claim does not require the party seeking reimbursement to show a duty is owed to it by the party it is seeking reimbursement from.

The recent decision of Tank Tech, Inc. involved damage to underground petroleum storage tanks at Circle K locations. Company “A,” the subrogee, had been hired by Circle K to retrofit existing tanks by adding an interior wall inside of the tanks. Company “B” was separately hired by Circle K to test the interstitial space between the new interior wall installed by Company “A” and the existing tank wall. There was no contractual relationship between Company “A” and Company “B.”

After the tanks were retrofitted, Circle K notified Company “A” that the modified tanks were damaged and failing. Although Company’s “A” investigation revealed the failure was the result of Company’s “B’s” testing methodology, Company “A” nevertheless repaired the damage to the tanks because its contract with Circle K required it to do so regardless of whether the damage was caused by a third party, such as Company “B.”

Company “A” then sued Company “B” for reimbursement of its repair costs under various claims, one of which was equitable subrogation. Each party had expert opinions that pointed to the other for the cause of the tanks’ failure and damage. The trial court granted a motion for summary judgment in favor of Company “B” finding that equitable subrogation did not apply. This summary judgment was reversed on appeal as the Second District maintained that there were factual issues supporting the basis of the equitable subrogation claim:

Tank Tech’s [Company “A”] contract with Circle K obligated it to repair damages to the USTs [tanks]. But Tank Tech’s contractual obligation to Circle K did not convert Tank Tech into a “volunteer” to pay for damages caused by a third party and thus did not prevent the application of the equitable subrogation doctrine. Instead, Tank Tech was merely fulfilling its legal obligation to Circle K which was a necessary means of protecting itself from liability to Circle K. And Tank Tech, by virtue of Dr. Cignatta’s affidavit [expert opinion establishing Company “B” caused failure to tanks], established a genuine issue of material fact regarding whether Tank Tech or Valley Tank [Company “B”] was primarily liable for the damages. If Tank Tech is ultimately successful in proving that Valley Tank caused the damage to the USTs, then it would be entitled to seek any damages it incurred as a result of having to repair the damaged USTs. To hold that Tank Tech is precluded from pursuing a claim for subrogation would leave Tank Tech without a remedy, a “most unfair and inequitable result.”

Tank Tech, Inc., supra (internal citations omitted).

Negligence and Common Law Indemnification

Relatedly, Company “A” also sued Company “B” for negligence and common law indemnification for repairing tanks it claimed were caused by Company “B’s” testing methodology. The trial court also granted summary judgment in favor of Company “B” on these claims. Unlike the equitable subrogation claim, the Second District affirmed the summary judgment in favor of Company “B” on these claims.

For Company “A” to sustain a negligence claim, it would have to establish that Company “B” owed it a duty. Without a duty owed, there is no negligence claim. Whether there is a duty is a question of law for the court. In this case, when dealing with only economic losses, the relationship between the parties—Company “A” and Company “B”—needs to be examined to determine whether a special relationship exists to warrant creating a duty to protect the economic interests of another. “[I]n order to proceed on a common law negligence claim based solely on economic loss, there must be some sort of link between the parties or some other extraordinary circumstance that justifies recognition of such a claim.” Tank Tech, Inc., supra. Here, the Second District agreed that Company “B” did not owe Company “A” a duty to support a negligence claim:

The reason why the negligence claim fails here is because there is neither a special relationship between Valley Tank [Company “B”] and Tank Tech [Company “A”] nor any extraordinary circumstance that would require imposition of a duty. Tank Tech’s injury did not flow from Valley Tank’s testing of the USTs [tanks]. Instead, Tank Tech seeks to recover the money it spent in repairing the USTs, an expense that was the result of a negotiated contract between Tank Tech and Circle K. There was no contract between Valley Tank and Tank Tech obligating Valley Tank to repair any USTs it damaged during testing or otherwise obligating Valley Tank to repay Tank Tech for the expenses incurred pursuant to Tank Tech’s contract with Circle K. And Valley Tank’s testing did not cause any personal injury or property damage to Tank Tech, the types of injuries for which the common law of negligence has historically permitted recovery.

***

This is simply a case of a party attempting to bring a tort claim to recover monies that it spent as a result of a contractual obligation to a third party. But negligence claims cannot proceed based on a party’s desire to relieve itself from a bad bargain.

Tank Tech, Inc., supra.

Likewise, regarding the common law indemnification claim, “actions for indemnity have been restricted to situations involving either a duty, an express contract, or the existence of active and passive negligence.” Tank Tech, Inc., supra, quoting Hiller Grp., Inc. v. Redwing Carriers, Inc., 779 So.2d 602, 603 (Fla. 2d DCA 2001). Since the Second District already agreed there was no special relationship between Company “A” and Company “B” and, thus, no duty owed, the common law indemnification claim failed for the same reasons as the negligence claim.

SUING FEDERAL GOVERNMENT ON A CONTRACT CLAIM; EQUITABLE SUBROGATION CLAIM BY LIABILITY INSURER AGAINST GOVERNMENT NOT ALLOWED

Posted on November 22, 2014November 22, 2014 by Edward Garber

Equitable subrogation is a doctrine that liability insurers rely on when paying a claim on behalf of an insured. Under this doctrine, the insurer equitably subrogates—steps in the shoes—to the rights of the insured and sues as an equitable subrogee of the insured in order to seek reimbursement for the claim it paid.

What if the liability insurer tried to pursue an equitable subrogation claim against the federal government? In other words, what if the insurer paid out insurance proceeds on behalf of its insured-prime contractor and then tried to recoup the insurance proceeds from the federal government as an equitable subrogee of the prime contractor? The United States Court of Federal Claims in Fidelity and Guaranty Insurance Underwriters v. U.S., 2014 WL 6491835 (Fed.Cl. 2014) explained that a liability insurer CANNOT sue the federal government as an equitable subrogee of the prime contractor in order to recoup insurance proceeds paid out on a claim.

In this case, the government hired a prime contractor to abate asbestos at a post office. The prime contractor was having difficulty obtaining CGL liability insurance to specifically cover asbestos removal for a reasonable premium and the government, through the contracting officer, agreed to execute an addendum to the prime contract that required the government to save harmless and indemnify the contractor from personal injury claims attributable to the asbestos removal work.

More than ten years later, a former government employee sued the prime contractor claiming he contracted cancer from his exposure to asbestos while it was being removed and abated at the project. The prime contractor demanded that the government defend and indemnify it for this claim; however, the government refused. The prime contractor then tendered the claim to its CGL liability insurer and its insurer settled the claim. After the settlement, the prime contractor once again demanded that the government reimburse it by honoring the indemnification language in the addendum; again, the government refused.

The prime contractor’s liability insurer then filed suit against the federal government as the equitable subrogee of the prime contractor in order to recoup the insurance proceeds it paid to the former government employee. The thrust of the claim was that the government breached the indemnification provision. The government moved to dismiss the lawsuit contending that the Court of Federal Claims does not have subject matter jurisdiction to entertain the lawsuit because the liability insurer is not in privity with the government and, therefore, cannot sue the government. The Court of Federal Claims agreed and dismissed the lawsuit. Why? Because a plaintiff suing the federal government on a contract claim must be in privity of contract with the federal government with limited exceptions to this rule:

“The Federal Circuit has recognized limited exceptions to the requirement that parties seeking relief for breach of contract against the government under the Tucker Act must be in privity of contract with the United States. These limited exceptions include (1) actions against the United States by an intended third-party beneficiary; (2) pass-through suits by a subcontractor where the prime contractor is liable to the subcontractor for the subcontractor’s damages; and (3) actions by a Miller Act surety for funds that the government improperly disbursed to a prime contractor [after the surety financed completion of a defaulted subcontractor]. As the court of appeals has observed, the common thread that unites these exceptions is that the party standing outside of privity by contractual obligation stands in the shoes of a party within privity.“

Fidelity and Guaranty Insurance Underwriters, supra(internal quotations and citations omitted).

Since none of the limited exceptions applied to allow a liability insurer to sue the government as an equitable subrogee of its insured-prime contractor, the Court of Federal Claims lacked subject matter jurisdiction.

This ruling does not prevent the prime contractor from suing the government directly for breaching the indemnification provision; it simply prevents the liability insurer from suing as an equitable subrogee of the prime contractor. Even though the insurer paid the claim, perhaps it can enter into an agreement with the prime contractor whereby the prime contractor sues the government directly for breach of contract.

The case demonstrates the limited exceptions available to a claimant on a construction project that wants to pursue a claim directly against the government when the claimant is not the prime contractor hired by the government. While prime contractors can sue the government for breach of contract, subcontractors, in particular, that want to pursue a claim against the government can only do so as a pass-through claim, meaning they are suing in the name of the prime contractor and will require the cooperation of the prime contractor.

Also, as an aside, the indemnification provision from the government and the prime contractor required the government to save harmless and indemnify the prime contractor. I always like to include the word “defend” in an indemnification provision so it is crystal clear that the indemnitor’s indemnification obligations extend to its contractual obligation to defend the indemnitees for any claim.

UNDERSTANDING AN INSURER’S SUBROGATION RIGHTS

Posted on May 30, 2013May 30, 2013 by Edward Garber

There are situations where an owner sues its property insurer (or builders risk insurer) in addition to suing its contractor or design professional for defects / damage. Sometimes, the owner’s lawsuit against its insurer is filed simultaneously with the lawsuit against its contractor and sometimes it is filed before or after it settles its dispute with its contractor. The contractor, if it knows the owner is suing its insurer, wants to ensure that once it settles with an owner, that the owner’s insurer will not pursue a subrogation claim against it. (In a subrogation claim, an insurer that pays its insured can stand in the shoes of the insured and sue third parties deemed liable for the claim.)

If a contractor settles with an owner and obtains a well-written release (that would release the contractor for all claims [known and unknown], damages, etc. arising out of or relating to the project and subject matter of the lawsuit/claim, etc.) the insurer will be precluded from asserting a subrogation claim against the contractor. The reason being is that the insured owner already released the contractor. See, e.g., Landmark American Ins. Co. v. Santa Rosa Beach Development Corp., 107 So.3d 1135 (Fla. 1st DCA 2012) (condominium development’s agreement with developer and contractor that was interpreted as containing release barred development’s insurer from seeking subrogation claim).
However, if the insurer is already suing the contractor in a subrogation claim or has perfected its rights, the contractor cannot try to settle with the owner and obtain a release thinking that the insurer’s claim would then be barred. The insurer cannot be prejudiced like this, especially if it already perfected its subrogation rights. For instance, in Twin City Fire Ins. Co. v. Jones, 918 So.2d 403 (Fla. 5th DCA 2006), an insurer paid an insured’s claim and then sued the defendants in a subrogation claim. The insured also filed a separate lawsuit against the defendants. The insured settled with the defendants and released the defendants. The defendants used the release to argue that the insurer should be barred from its subrogation claim. The Fifth District held that “a settlement executed by the insured cannot act as a bar to an action for subrogation by the insurer against a third party tortfeasor if, prior to the settlement, the tortfeasor learns of the insurer’s perfected subrogation rights. Twin City Fire Ins. Co., 918 So.2d at 404 quoting Lincoln Nat’l Health & Cas. Ins. Co. v. Mitsubishi Motor Sales of Am., Inc., 666 So.2d 159, 163 (Fla. 5th DCA 1995).

Understanding an insurer’s subrogation rights is important in construction. Oftentimes, there are waiver of subrogation rights that are set forth in contracts. Sometimes, these provisions are either stricken or the contract does not contain a waiver of subrogation. It is important to consider subrogation as a contractor if you have knowledge that the party suing you is also suing an insurer and/or you are being sued by an insurer in a subrogation claim (or the insurer has taken steps to perfect subrogation rights) so that you know your rights and options as the dispute progresses to settlement.