Category Archives: Litigation

How will COVID-19 AFFECT LITIGATION AND TRIALS?

On June 10, 2020, the New York Times published an article entitled, “Jurors, Please Remove Your Masks: Courtrooms Confront the Pandemic” by Shaila Dewan (hereinafter “the article”). This article explores the complications of jury trials in the US, and particularly in Oregon state courts, as the counties in Oregon gradually re-open. It focuses on criminal trials, which are starting to move ahead again in Oregon, given the state requirement that criminal defendants not be in custody for more than 180 days after their arrests.

We will explore some of the issues outlined in that article, as well as some of the issues we are thinking about as trial lawyers here in Oregon.

At least one judge in Ohio has denied a request for postponement of a jury trial, despite the fact that one of the lawyers had been exposed to COVID-19 and was ordered to self-quarantine for two weeks.

One complication of jury trials during COVID-19 is the judge’s discretion regarding whether the trial should move forward, even if a lawyer has been exposed to the novel coronavirus and is under doctor’s orders to quarantine for two weeks. According to the article, at least one judge in Ohio ordered a trial to move forward over a lawyer’s objections that he had been exposed to COVID-19 and was under doctor’s orders to self-quarantine. The lawyer felt obligated to tell prospective jurors during jury selection that he had been exposed to the virus and that his doctor had advised him to self-quarantine. One can only imagine what that did to his jury pool.

Do jurors have to wear masks during jury selection?

Another issue is whether judges are able to exercise discretion to ask jurors to take their masks off during jury selection. According to the article, some judges have asked prospective jurors to take off their masks only when answering questions. The problem with this is that lawyers will likely have trouble gauging masked jurors’ reactions to questions and comments at all other times. Making things more complicated is the possibility that judges may not order prospective jurors to take off their masks at any time, ever.

Before COVID-19, lawyers have always relied on jurors’ nonverbal communications when selecting a jury. Studies have shown that between 60 to 65 percent of people’s total communication occurs through nonverbal cues. Jeffrey T. Frederick, Ph.D., Mastering Voir Dire and Jury Selection 39 (2005). If a lawyer can’t comprehend the majority of the communication she is receiving from her prospective jurors, how will she pick a favorable jury for her client?

Of course, it’s not just during jury selection that lawyers attempt to predict jurors’ likely votes in any particular case. However, jury selection is arguably the most important part of any trial and is a period of time when it is critical that lawyers “read” their jurors nonverbal communications.

Masks will likely impede connections between the bench, the bar, the parties, and the jury. The nonverbal tools lawyers used to use to persuade and strategize will have to change if masks are involved in trials.

Most of us cannot forget Johnnie Cochran Jr.’s emotional pleas to his jurors in the OJ Simpson case. “If it doesn’t fit, you must acquit!” It is hard to imagine the late Mr. Cochran making such a powerful argument while wearing a mask. Certainly, the emotional impact of the argument would not be the same. Lawyers’ attempts to connect with their jurors on an emotional level will likely be severely impaired by masks.

It will also likely be difficult for lawyers to nonverbally connect with their clients at trial in a way that soothes their clients, prepares them for testimony, or assists their clients in making emotional connections with the jury. A lawyer representing a particularly likable client will have difficulty getting the full import of her client’s testimony to come across to the judge and the jury if no one can see her client’s face.

Similarly, trial lawyers often quietly communicate with their clients during trials–not just during breaks, but during the trial itself. Masks obscure the ability to read lips and to hear (whispering is especially difficult). If the lawyer and her client are both wearing masks, their ability to communicate during the trial will be severely impacted. For this reason, the article notes that some lawyers and clients are foregoing the use of masks altogether because it impedes effective representation.

Determining the credibility of parties and witnesses will become extremely difficult if they are wearing masks, particularly if they are wearing masks while testifying.

One of the biggest jobs of a lawyer during a trial is making determinations concerning the credibility of the parties and the witnesses. Lawyers use the nonverbal cues of parties and witnesses to make strategy decisions, such as whether to engage in cross-examination, how to determine the length of the examination, whether to call their clients to testify, and what kinds of follow-up questions to ask. If a witness testifying against your client seems incredible, it can be beneficial to ask that witness particular questions to expose those credibility fissures to jurors. However, a lawyer who cannot see the face of the witness or a party she is questioning will have an uphill battle engaging in the strategies she is used to relying on if everyone is wearing a mask. Similarly, jurors will likely yearn for the full facial nonverbal reactions of parties as those parties sit and listen to particular portions of testimony during the trial. Did the criminal defendant seem calm when the alleged victim testified against him? Did he seem angry or defensive? Did he have a small smile on his face?

The Confrontation Clause of the Sixth Amendment will likely be impaired by wearing masks.

Under the Confrontation Clause of the Sixth Amendment, criminal defendants have the right to confront any witnesses who testify against them. Similarly (although not for the same legal reasons) civil defendants have generally enjoyed the right to see and to question, face-to-face, the plaintiffs who file lawsuits against them. If everyone is being shielded by a mask, there will no longer be true face-to-face confrontations.

Sentencing hearings where the judge and the criminal defendant are wearing masks, or sentencing hearings that take place remotely, may be damaging to our criminal justice system.

Although judges can still technically look criminal defendants in the eye when they are sentencing them and vice-versa, a mask arguably shields the judge and allows her to distance herself from the criminal defendants she is sentencing. There is a risk that judges may unconsciously dehumanize masked criminal defendants.

Further distancing judges and criminal defendants is judicial sentencing via video (or worse, telephone) conferences, which keeps judges from sentencing criminal defendants face-to-face. In our system, we are used to the idea that the judge hands down her sentence to the criminal defendant in person. Remote criminal sentencing hearings have necessarily changed the nature of the way criminal sentences are handed down in our country.

Due to COVID-19, some criminal defendants are asking to be released for health reasons. Some of these criminal defendants are leaving confinement, only to be sequestered with their alleged victims.

Many of us have read about the COVID-19 tinderboxes that jails and prisons have become for criminal defendants. Criminal defendants who have underlying health problems have requested early release dates or releases from confinement pending trial or sentencing. Sometimes these criminal defendants are leaving confinement only to be sequestered (particularly if their states or counties are in the early phases of re-opening) with their victims. Courts are struggling to balance risks to the lives of the criminal defendants with risks of release posed to the defendants’ alleged victims, particularly victims that are forced to shelter-in-place with their perpetrators. Prosecutors face the difficult task of calling victims in some cases to alert them to the fact that their perpetrators will be released and, worse, will be coming to live with them.

Difficulties with pursing particularly sensitive civil cases.

Many civil plaintiffs file lawsuits because the criminal system has failed them. Additionally, many plaintiffs in sexual abuse cases file civil lawsuits in lieu of proceeding through the criminal system because they have no confidence in the police. In fact, less than twenty percent of sexual abuse victims report to the police. Mary Wood, City Attorney Shares Reality of Prosecuting Sexual Assault Cases, University of Virginia School of Law News and Media, (date accessed: June 11, 2020), https://www.law.virginia.edu/news/2001_02/zug.htm.

In civil cases, particularly in civil sexual abuse cases, the only source of leverage the plaintiffs’ lawyer generally has is via the threat of a jury trial. Without the threat of an imminent jury trial hanging over the defendant’s head, a defendant is less likely to feel pressured to resolve the case short of trial. Furthermore, it will be extremely hard for plaintiffs’ lawyers to promise their clients any kind of a resolution without a set civil jury trial date.

Even if a plaintiff in a civil sexual abuse case does have jury trial, it is likely to be extremely difficult to conduct if everyone is wearing a mask, for most of the reasons outlined above.

Olson Brooksby Featured in Eastmoreland Living Magazine

Olson Brooksby is so grateful to have been featured in Eastmoreland Living Magazine–a magazine for the residents of the beautiful Eastmoreland neighborhood in Portland. Thank you to Eastmoreland Living for featuring us and sharing a little bit about what we do, and thanks to Erin Fortin for taking the fabulous photos of us and our family.

The article explains how we ended up forming our law firm and why we love being litigators. The article ends with some general legal tips that we’ve shared with our clients over the years. Although people cannot entirely shield themselves from litigation, there are things you can do, such as buy plenty of insurance, to protect yourselves.

Olson Brooksby once again selected as one of the top litigation firms in Portland

Expertise has again recognized Olson Brooksby as one of the top litigation law firms in Portland, Oregon. Expertise selects attorneys based on more than 25 variables across the following five categories:

  1. Reputation: A history of delighted clients and outstanding service.
  2. Credibility: Building client confidence with licensing, accreditations, and awards.
  3. Experience: Masters of their craft, based on years of practical experience and education.
  4. Availability: Consistently approachable and responsive, so clients never feel ignored.
  5. Professionalism: Providing service with honesty, reliability, and respect.

Olson Brooksby has consistently been recognized each year by Expertise as one of the top 20 litigation firms in Portland, Oregon since 2016.

Expertise prides itself on only featuring businesses that have been identified by their research process as the best in their area. Finding the right highly-skilled professional takes significant time and effort, including in-depth research, detailed comparisons, and deciphering which online reviews are reliable and authentic. Expertise features only objectively quantified and qualified professionals who are hand-picked.

Scott Brooksby and Kristin Olson selected for the 2020 edition of Best Lawyers in America

Scott Brooksby and Kristin Olson are listed in the 2020 edition of the Best Lawyers in America© for product liability litigation and commercial litigation, respectively.  No more than 5% of private practice lawyers nationwide are selected for this honor, which is based purely on peer review.

Best Lawyers® compiles its lists of outstanding attorneys by conducting peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current edition of The Best Lawyers in America© 2020 is based on more than 5.5 million detailed evaluations of lawyers by other lawyers.

The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

Scott Brooksby Selected as a 2019 Oregon Super Lawyer for Product Liability Defense


Scott Brooksby has been honored every year for his product liability defense practice since the Oregon Super Lawyers award’s inception in 2008. He was honored once again for the year 2019.

No more than 5% of the lawyers in Oregon are selected for this honor each year.

Super Lawyers selects attorneys using peer nominations and evaluations, combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement:

  • Verdicts/Settlements
  • Transactions
  • Representative Clients
  • Experience
  • Honors/Awards
  • Special licenses/certifications
  • Position within the law firm
  • Bar and/or professional activity
  • Pro bono and community service
  • Scholarly lectures/writings
  • Education/employment background
  • Other outstanding achievements


While representing a victim of sexual assault, Kristin Olson wins a Motion to allege punitive damages against ClubSport Oregon and Leisure Sports, Inc.

While representing a victim in a sexual abuse case, Oregon sexual abuse lawyer Kristin Olson won a motion to amend to allege additional claims, including punitive damages regarding all claims, against SMG Properties Oregon LLC, dba ClubSport Oregon and Leisure Sports, Inc.

While representing a victim of sexual abuse during a massage at ClubSport Oregon in Tigard, Kristin Olson won a Motion to add $1 million in punitive damages to her lawsuit against SMG Properties Oregon LLC –doing business as ClubSport Oregon–and Leisure Sports, Inc.

Kristin also won a Motion to add the following claims against ClubSport Oregon and Leisure Sports: negligent infliction of emotional distress, negligent training and supervision of the massage therapist, and negligence per se.

The Court granted Kristin’s Motions in full, and gave Kristin leave to file a Second Amended Complaint to add punitive damages to all existing claims in the lawsuit as well as the new, additional claims.

In order to win the Motion to add the additional claims, Kristin had to show, among other things, that there was evidence to support them.

To win her Motion to add allegations of punitive damages, Kristin had to show that there was evidence that ClubSport and Leisure Sports acted with malice or have “shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.”  Oregon Revised Statute 31.730.

Kristin is an Oregon sexual abuse lawyer who represents sexual abuse and sexual assault survivors in civil lawsuits throughout the state of Oregon.

(Freifeld v. Leisure Sports Inc., et al., Washington County Case No. 18CV12178, April 1, 2019.)

Kristin Olson wins motion to compel documents in a sexual assault case

While representing a victim who was sexually assaulted during a massage at ClubSport Oregon, Kristin Olson won a motion to obtain documentation concerning the Oregon Board of Massage Therapists’ investigation into the assault on her client.  During the discovery phase of the lawsuit, Kristin requested the documents, but the defendant massage therapist refused to produce them.  Kristin filed a motion to compel the documentation and won, and the Court ordered the defendant massage therapist to produce all of the documents.  Freifeld v. Leisure Sports, Inc., et al., Washington County Case No. 18CV12178 (November 9, 2018).

Kristin is an Oregon sexual abuse lawyer who represents sexual abuse and sexual assault survivors in civil lawsuits throughout the state of Oregon.

In a sexual assault case against ClubSport oregon and leisure sports, Kristin Olson wins a motion to preserve allegations in her lawsuit regarding a different, prior sexual assault victim at the same club

While representing a victim of sexual assault in a case against fitness facility ClubSport Oregon and its management company, Leisure Sports, Kristin Olson successfully defeated the defendants’ motion to strike allegations regarding a prior victim of sexual assault at the same ClubSport location.  In the lawsuit brought on behalf of her client, Kristin alleged that her client was the victim of sexual assault during a massage at ClubSport Oregon in Tigard.  The lawsuit also alleged that there was a prior sexual assault involving a different victim by a different massage therapist at the same ClubSport Oregon location.  Therefore, Kristin argued, ClubSport Oregon and Leisure Sports knew or should have known that a sexual assault during a massage at that club location was foreseeable and should have changed their protocol to protect future potential victims of sexual assault during a massage, such as Kristin’s client.  ClubSport and Leisure Sports moved to strike those allegations.  Kristin successfully defeated that motion, and the allegations regarding the prior sexual assault remained in the lawsuit.  Freifeld v. Leisure Sports, Inc., et al., Washington County Case No. 18CV12178 (September 10, 2018).

Kristin is an Oregon sexual abuse lawyer who represents sexual abuse and sexual assault survivors in civil lawsuits throughout the state of Oregon.

While representing a victim of sexual assault against fitness facility ClubSport Oregon, Kristin Olson successfully defeated a motion to strike allegations in the lawsuit regarding a prior victim at the same ClubSport location

Scott Brooksby and Kristin Olson recognized by Best Lawyers in America©

Scott Brooksby and Kristin Olson are listed in the 2019 edition of the Best Lawyers in America© for product liability litigation and commercial litigation, respectively.  No more than 5% of private practice lawyers nationwide are selected for this honor, which is based purely on peer review.

Best Lawyers® compiles its lists of outstanding attorneys by conducting peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current edition of The Best Lawyers in America© 2019 is based on millions of detailed evaluations of lawyers by other lawyers.

The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

The Claims are Paid, Now What? Subrogation!

The Claims are Paid, Now What? Subrogation!

by Scott Brooksby

“Sir, it is wrong to stir up law-suits; but when once it is certain that a law-suit is to go on, there is nothing wrong in a lawyer’s endeavoring that he shall have the benefit, rather than another.” –Samuel Johnson

Introduction

Subrogation is defined for present purposes as the substitution of one person in the place of another with respect to a lawful claim or right. Subrogation is the right that every insurance company reserves in all insurance policies to recover losses from a third-party who contributed to or caused the loss.  It is one of the oldest concepts in jurisprudence.  However, the doctrine is not well understood, even by lawyers and judges who may not deal with subrogation issues on a regular basis.

Webster’s defines subrogation as:

The assumption by a third party (such as a second creditor or an insurance company) of another’s legal right to collect a debt or damages

https://www.merriam-webster.com/dictionary/subrogation

Subrogation in the aviation context has important implications for insurers and insureds. When markets are rising, most carriers make money on their investments.  When markets are down, and especially when they crash, as they did in 2008 and 2009, carriers may lose money, in part because margins are somewhat limited by market performance.  However, subrogation claims, when carefully evaluated and handled, provide carriers a right to recover dollars that may be easier to collect than premium dollars.  Successful collection on subrogation claims may have significant impact on insurer financial performance.  Insureds also benefit from effective subrogation claims because ever-increasing deductibles can be recovered and result in better loss history and lower rates.

Brief Historical Overview: Roman Origins

Subrogation, as a legal concept, dates back to Roman times. Under the reign of Emperor Hadrian (AD 117-AD 138) Roman law began to shape the building blocks of subrogation.  The relation of suretyship could be created by stipulation.  Gary L. Wickert, The Societal Benefits of Subrogation https://www.mwl-law.com/defending-subrogation/. For broad historical perspective, see Saul Litvinoff, Subrogation, 50 La. L. Rev. (1990) http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5249&context=lalrev.

Although modern subrogation may have had its roots in Roman suretyship, scholars have generally noted that the Roman law required a more positive act to transfer rights before subrogation could occur. Therefore, many have raised the possibility that the modern doctrine arose somewhat independently of Roman and French antecedents as a purely English theory that seems to have had its origins in the courts of Equity.  M.L. Marasinghe, An Historical Introduction to the Doctrine of Subrogation: The Early History of the Doctrine I, 10 Val U.L. Rev. 45 (1975).

Commenting on Roman equity, one scholar expressed a view that subrogation was unknown to the Romans in the context in which it appears in the common law today. In Roman law, “subrogate” was a well-known term of constitutional law, providing for the replacement of one official by another or replacing one official’s actions with another’s action. Id., at 46, citing W.W. Buckland, Equity in Roman Law, 47-54 (1911).

Of subrogation, Buckland further reasoned that

“The corresponding right in English law, at least in case of a surety, amounts to actual subrogation, and is declared to be based on natural justice, no attempt being made to deduce it from any defined principle.” Id., citing Buckland at 54.

Therefore, under English common law, no express transference of rights has been required. Marasinghe, supra, at 46.

Brief History: Anglo-American Subrogation

“I do think that Magna Carta and international law are worth paying some attention to”

–Noam Chomsky

Despite its ancient roots, modern subrogation is a distinct concept, bearing little resemblance to the Roman version. It appears that the concept of subrogation was formally incorporated into the English common law in the Magna Carta, which provides:

Neither We nor Our bailiffs shall seize any land or rent for any debt so long as the debtor’s chattels are sufficient to discharge the same; nor shall the debtor’s sureties be distrained so long as the debtor is able to pay the debt. If the debtor fails to pay, not having the means to pay, then the sureties shall answer the debt, and, if they desire, they shall hold the debtor’s lands and rents until they have received satisfaction of the debt which they have paid for him, unless the debtor can show that he has discharged his obligation to them.  A.E. Dick Howard, Magna Carta, Text & Commentary 39 (rev. ed. 1998).

Although a complete historical analysis is far beyond the scope of this paper, the English judges linked subrogation to the equitable principle of contribution. Id., citing Pothier, Treatise on Obligation 259 (3d Amer. Ed. 1853).  By 1782 the common law courts had recognized the doctrine of subrogation and were using it “as if it had always been part of the common law of England.”  Marasinghe, at 49.  In Mason v Sainsbury, 3 Doug. 61, 64, 99 Eng. Rep. 525 (1782),  Lord Chief Justice Mansfield stated:   “Every day, the insurer is put in the place of the insured.  The insurer uses the name of the insured.” Id.

However, subrogation in the modern Anglo-American context has different meanings in different contexts. Modern subrogation can be generally categorized into three types:

Contractual subrogation, which is based on the contract between the parties such as subrogation language in an insurance policy. This is sometimes called “conventional subrogation”.

Equitable subrogation, sometimes called “legal subrogation,” is a product of equity. Equitable subrogation is not dependent on the existence of any contract assignment or privity.  It arises by operation of law out of the fairness doctrine.

Statutory subrogation is a mechanism that gives a carrier a right to recover certain benefits. Statutory subrogation may arise in areas such as workers compensation, hospital liens, and Medicare among other things.

Subrogation Waivers

A typical subrogation clause in an aviation insurance contract may read: “If we pay a claim under your policy, we will take over your right to recover that amount from any other person or organization.  You agree to cooperate with us and not to do anything that will interfere with our chances of recovery.”

The aviation industry is contract-intensive. Aviation-related contracts very often contain subrogation waivers in which each of the parties to the contract agrees to maintain its own insurance and also agrees to waive subrogation rights that may otherwise exist or arise with respect to insured losses. Waivers of subrogation most often apply to hull claims, but may sometimes be requested in product liability, airplane, airport, and hangar leases and pilot training.

A representative sample of a contractual subrogation waiver typically reads as follows:

“To the extent that any loss of any kind is covered or paid by any insurer, the contracting parties hereby waive subrogation or contribution rights against each other and their respective officers, agents and employees, and the contracting parties shall notify their respective insurers of this waiver of subrogation agreement and shall cause this waiver of subrogation agreement to be included in the insurance policies secured by each of the contracting parties.

A waiver of subrogation will result in the insurance carrier waiving the right to recover amounts paid under the policy from the person or entity that caused the loss. For example, a regional operator may contract with an FBO for pilot service.  Before a flight, the FBO requires execution of a subrogation waiver against the FBO related to the pilot service.  Assume further that the insurance company agrees to the waiver.  On the flight, the pilot fails to lower the landing gear, causing significant damage.  Without the waiver, the insurance company would have paid to repair the loss and then pursued a subrogation claim  against the FBO’s insurance.

As a practical matter, failure to provide a requested waiver may result in a failure to obtain the desired contract. However, before executing a waiver, insureds should recognize that there are significant downsides:

  • The insured could void the policy if the waiver is provided without receiving approval and endorsement from the insurer.
  • Losses that could have been subrogated may be fully charged against the policy loss record.
  • There may be a premium charge involved in providing the waiver.

The validity of waivers in aviation contracts has long been recognized. In Continental Manufacturing Corp. v. Underwriters at Lloyd’s of London, 185 Cal. App. 2d 545 (1960), the court held that an aviation insurer was not obligated to make a hull loss payment to its insured.  The insured had executed an earlier lease agreement that had released the party responsible, and therefore improperly defeated the insurer’s right of subrogation.

Aircraft Financing and Subrogation Waivers

Aircraft financiers typically require a waiver of subrogation to protect themselves from any action by the airline’s insurers who, at common law, are subrogated to all rights which the insured may have against third-parties, including financiers. Rod D. Margo, Aspects of Insurance in Aviation Finance, 62 J. Air L. & Com. 423, 455 (1996).  http://scholar.smu.edu/cgi/viewcontent.cgi?article=1428&context=jalc

Under English law, a waiver of subrogation clause cannot be relied on by a person who is not a party to the insurance contract. Id., at 456, citing National Oilwell (U.K.) Ltd. v Davy Offhsore Ltd., (1993) 2 Lloyd’s rep. 582, 602-04 (Eng. Q.B.); Enimont Supply SA v. Chesapeake Shipping Inc. (the “Surf City”), (1995) 2 Lloyd’s Rep. 242 (Eng. Q.B.).  Therefore, unless the financier has also been endorsed as an additional insured under the airline’s policy, a waiver of subrogation will likely be unenforceable for lack of privity of contract.

A waiver of subrogation is probably unnecessary where the financier is endorsed as an additional insured under the airline’s policy because the policies make it clear that an insurer cannot exercise any such rights of subrogation against their own insureds. Margo, supra, at 456.

Subrogation and the Non-Owner Pilot

Whether it is the owner or a lessor, some broad form of all-loss insurance is generally carried by the party that has the care, custody and control of the aircraft, and is responsible for maintaining the airworthiness of the aircraft and has dispatch authority. A non-owner pilot is the pilot named under the policy other than the owner, a pilot using the aircraft under the open pilot warranty or “permissive pilot” provision ,or a renter.

The insurance contract is an agreement between the insurer and the purchaser of the policy. Unless the pilot is an employee of the owner, he may be subject to a subrogation action.  For this reason, as discussed above, many contract pilots and pilot service companies usually demand that the aircraft owner or named insured provide the contract pilot with a waiver of subrogation and status as an “additional insured” under the policy.

The Importance of Spoliation Considerations in Aviation Subrogation

Complex issues arise when the insurer elects to undertake a spoliation investigation. For example, physical evidence which may be critical to insured and uninsured losses may need to be collectively preserved.  It may not even be clear which components or evidence in a subrogation claim relate to insured and uninsured losses for some time.  At the outset, it is necessary to determine who is responsible for preservation of any relevant evidence.  In most subrogation cases the plaintiff must preserve the evidence, but in aviation cases that responsibility generally falls to a potential defendant.

In aviation cases, preservation of evidence in subrogation cases is more complicated because the NTSB has complete authority to assume custody of evidence relevant to its investigation. .  Pursuant to 49 U.S.C. § 1901 et. seq., the NTSB also has the ability to limit party participation status.  See 49 C.F.R. § 831.11(a)(1).

Since the regulations also exclude persons who represent claimants or insurers from party status under 49 C.F.R. 831.11(a)(3), the NTSB and potential defendants typically have control of the investigation and the evidence during the important period between the time of the accident and the time the evidence is released to the owing party, often the hull insurer. The NTSB also prohibits lawyers or insurers or anyone whose role is the pursuit or defense of claims from participating in the process.

If the NTSB destroys, loses or otherwise is responsible for spoliation of the evidence, a lawsuit against the NTSB is precluded by the discretionary function exception to the Federal Tort Claims Act. See Black Hills Aviation Inc. v. United States, 34 F.3d 968, 976 (10th Cir. 1994).

The potential defendant manufacturers or other party participants to an NTSB accident investigation do not share the same protections or immunities. In Lowe v. TDU Industries, Inc., 2005 WL 1983750 (Cal. App 2d Dist. Aug. 18, 2005), an engine manufacturer lost the engine cylinders.  The court ruled that the plaintiff was entitled to an inference instruction that the cylinders would have supported plaintiff’s theory.  California, in particular, has created affirmative liability for spoliation of evidence.  See, e.g., Johnson v. United Services Automobile Association, 79 Cal. Rptr. 2d 234 (1998).

The Made Whole Doctrine

Among the many subrogation doctrines which is not well understood, and which takes many different state-specific forms, is the made whole doctrine. A complete discussion of the made whole doctrine is far beyond the scope of this article.

Because subrogation may lead to adverse consequences for insureds, the common law developed the made whole doctrine which limits the use of subrogation before an insured party receives full compensation for damages. As one scholar notes, the made whole doctrine is the “principal weapon used by contemporary courts to curb the harsh effect of contractual subrogation on the rights of the insured.”  Parker, Johnny C., The Made Whole Doctrine: Unraveling the Enigma Wrapped in the Mystery of Insurance Subrogation. Missouri Law Review, Vol. 70, 723, 723-775 (October, 2005) http://law.missouri.edu/lawreview/files/2012/11/Parker.pdf.

As originally developed, the made whole doctrine applied to subrogation, whether legal or conventional. Therefore, even where the insurer had paid all of the policy proceeds and included an expressed subrogation provision in the policy, the right to subrogation was stayed until the insured received complete compensation. Id., at 773.

However, many states have adopted a modified application of the made whole doctrine and have concluded that since the doctrine is of equitable origins and conventional subrogation is grounded upon a legal contract, the parties are free to agree that the rule does not apply. At least 14 jurisdictions have adopted a view that parties are free to agree that the made whole rule is inapplicable. Id.

The Anti-Subrogation Doctrine

Simply defined, the anti-subrogation doctrine provides that subrogation rights exist only as to third-parties.  The doctrine is a defense which provides that since the insurance company is standing in the shoes of its insured, it cannot sue its own insured, in whose shoes it stands.  The doctrine also prevents an insurer from pursuing a subrogation action against a third-party who qualifies as an additional insured.  The rule implicates public policy considerations, including the prevention of suits by insurers against insureds to recover for the very losses for which they have paid for coverage in the form of premiums and the avoidance of conflicts of interest.

Aviation insurance is a specialty line of coverage, often involving very large risks and more complex underwriting issues than most types of insurance. As a result, there are fewer aviation insurers, and the anti-subrogation doctrine may come into play more often.

If the potential defendant in a subrogation action is an insured or an additional insured on the same policy of insurance, a carrier paying a property damage claim cannot subrogate against an insured or additional insured on the same policy.

If the potential target of a subrogation action and the party sustaining the loss are both insured under different policies with the same insurer, there is a split of authority.

If a plaintiff property insurance carrier and a separate liability insurance carrier have both provided policies of insurance to the defendant, the anti-subrogation rule generally does not apply and subrogation is generally permitted if the companies are both members of the same family or group of companies.

Warranty Limitations That May Affect Subrogation Claims

Few lawyers enjoy working through situations that require analysis of the application of the economic loss rule. Although a complete discussion of the rule is far beyond the scope of this paper, it can be defined simply as the prohibition of the recovery of damages under tort theories such as negligence or strict liability when a product defect results in only economic loss, but does not cause personal injury or damage to any other property other than the product.  For a detailed explanation of the economic loss rule see Jamie Mayrose, “A “Simple” Explanation of the Economic Loss Rule”, Under Construction, Vol. 17, No. 3, Winter, 2016.  https://www.americanbar.org/publications/under_construction/2016/winter2016/economic_loss_rule.html

In its application, the economic loss rule precludes contracting parties from asserting tort causes of action as a means to recover economic or commercial losses arising out of a contract, and precludes a purchaser of a product from recovering from a manufacturer on a tort theory for damages that are solely economic.

The economic loss doctrine has implications in the context of aviation subrogation. In general, the economic loss doctrine applies to bar recovery if an allegedly defective part is part of the original bargain when an aircraft was purchased.  However, if the replacement part is not part of the original sale, the economic loss rule does not bar tort claims.  This is important in the context of aviation where contractual defenses such as warranty disclaimers and limitations of liability may severely restrict the ability to recover under contract theories.

The following warranty limitation is representative of the type of clause typically contained in many types of aviation-related contracts such as overhaul facilities:

Limited Warranty for Services and Components: _________ warrants that the services performed hereunder will comply with applicable FAA regulations in effect as of the date the work is performed (as interpreted by the FAA office having jurisdiction over the facility at which the work is performed) and will be free from defects in workmanship and material, including new components manufactured by ________, under normal use for one (1) year and for ninety (90) days on used components refurbished by ________ from date of installation. The warranty on all other new and used components shall be limited to the warranty provided by the supplying manufacturer or vendor, if any. This warranty does not apply to (i) normal wear and tear, (ii) the consequences of accident, negligence, abuse or misuse, or of repair, removal, reinstallation or alteration other than by ___________ and (iii) to Customer furnished parts or equipment or to work which, at Customers direction, was not performed in accordance with ____________ standard operating procedures. The sole and exclusive remedy of Customer, and ___________ sole and exclusive liability, with respect to this warranty is limited to repair or replacement (at _____________ option) of the nonconforming or defective work or component. Such repair or replacement shall be performed at a ___________ facility and Customer shall be responsible for transportation costs. THE FOREGOING WARRANTY IS IN LIEU OF, AND THE CUSTOMER HEREBY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.

Limitation of Liability: In no event shall ___________ be liable for any special, incidental, consequential and/or punitive damages, including, without limitation, loss of profits, loss of goodwill, loss of use, loss of time, diminution of value, or inconvenience, even if informed of the possibility of such damages. In the event _________ physically damages Customer’s property, Customer’s sole and exclusive remedy, and ____________ sole and exclusive liability, is limited to the repair or replacement (at ______________ option) of the damaged portion of the property.

As the representative limited warranty and limitations of liability provisions above make clear, pursuit of subrogation claims for the full award of damages which would be recoverable in the absence of such limitation provisions becomes much more questionable.

Conclusion

In addition to many other important subrogation principles, subrogation in the aviation context requires particularly careful economic evaluation, and budgeting.  Both pursuing and defending aviation subrogation cases in an economically rational manner requires careful adherence to litigation budgets.

The economics of aviation subrogation and the efficient pursuit of the intended economic offset or recovery, or the successful defense of a subrogation claim both require careful assessment of the potential recovery, the technical issues associated with proving causation, the impact of NTSB investigations and the other logistics of the potential claim, such as location of the wreckage, discovery, and witnesses.

In addition, the economics which may drive whether or not to pursue or defend a subrogation claim in the aviation context will be influenced by factors such as subrogation waivers, aircraft financing contracts, the made whole doctrine, complex conflict and ethical issues, and even the variations on policies covering pilots.