NASP 2009 Annual Conference

Advanced Subrogation: Roadblocks & Speed Bumps Harris E. Berenson, Esq., Liberty Mutual Insurance Company Samuel J. Pace, Jr., Esq., Dugan Brinkmann Maginnis and Pace Robert A. Stern, Esq., Clausen Miller P.C.

INTRODUCTION Speakers Overview of Discussion Topics

TYPES AND SOURCES OF DOCUMENTS Are the same types of documents sought in every recovery case? What types of documents must be sought in a recovery case?

TYPES AND SOURCES OF DOCUMENTS Where to find them? Client, Insured, Insurance brokers Other contracting parties, such as subcontractors, landlords/tenants Public authorities Potential adversary Witnesses News media, internet, library

TYPES AND SOURCES OF DOCUMENTS Importance of completeness and correct version. Construction Transportation Sale/Service Written Contractual Relationship

TYPES OF DOCUMENTS Contracts, Invoices, Purchase Orders Tariffs, Bills of Lading, Shipping Receipts Warranties, Guarantees, Manuals, Product Literature Repair, Service and/or Maintenance Records Business and Financial Records Before and After Photographs Damage and Proof Records Official (fire, police, etc.) and Internal Reports

Construction Contract Issues Owner Controlled Insurance Plans (OCIP) Contractor Controlled Insurance Plans (CCIP) Builders Risk AIA construction contracts

Builders’ Risk Subcontractors In respect of operations performed by subcontractors of any tier for the Insured, such subcontractors may be included as an Additional Insured, but only as regards work performed by these subcontractors, the value of which shall have been included in the estimated Total Project Value shown in….

AIA Document A The Owner and Contractor waive all rights against (1) each other and any of their subcontractors... and (2) the Architect... for damages caused by fire to other causes of loss to the extent covered by property insurance obtained pursuant to this Section... or other property insurance applicable to the Work to the extent Owner receives proceeds from such insurance….

AIA Document A To the extent permitted by applicable property or builders’ risk insurance policies, the Owner and Contractor waive (and in each Subcontract each Subcontractor shall waive) all rights against (1) each other and any of their subcontractors, sub- subcontractors, agents and employees, each of the other, and (2) the Owner and Architect, and their consultants, separate contractors described in Article 6, if any, and any of their subcontractors... for damages caused by fire or other causes of loss of property damage and consequential business-income or time-element losses to the extent covered by property insurance obtained by any of them covering the Work. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.

Damage to property other than “the work”

“Additional Insured” and Anti- Subrogation Doctrines Are they the same? What are they? Any exceptions?

Leases and Waivers Lessor-Leasee, is subrogation possible? Co-insureds, what are they?

TRANSPORTATION LOSSES Tariffs Package limitations

PUBLIC UTILITIES AND MUNCIPALITIES AS POTENTIAL TARGETS Tariffs Notice Requirements Type of Claim against Entity

MISCELLANEOUS CONTRACTS Types: –A.Sales contracts –B.Equipment leases –C.Service contracts –D.Inspection contracts for sprinkler systems and fire protection equipment Contract limitations

Implied waiver of subrogation to benefit third-parties who are not involved in the contract

Exceptions Gross Negligence Code Violation Intentional Conduct

Can parties to a contract legally agree to waive rights of the insurer?

Policy Subrogation Provision But you may waive your rights against another party in writing:

Policy Subrogation Provision 1.Prior to a loss to your Covered Property. 2.After a loss to your Covered Property only if, at the time of the loss, that party is one of the following: (a) Someone insured by this insurance; or (b) A business firm: (1) Owned or controlled by you; or (2) That owns or controls you.

Must a waiver expressly release a party from liability for its own negligence?

Coverage Defenses

Conclusions and Questions

Advanced Subrogation: Roadblocks & Speed Bumps Harris E. Berenson, Esq., Liberty Mutual Insurance Company Samuel J. Pace, Jr., Esq., Dugan Brinkmann Maginnis and Pace Robert A. Stern, Esq., Clausen Miller P.C.