[WSBARP] Insurance/Subrogation Issue

[Andrew Hay]

This is a fairly common scenario in the personal injury world. Generally, the insured is free to pursue an action for recovery of all damages.
The insured must be fully compensated from the tort feasor before the insurance company can receive anything.  This stems from the case of THIRINGER v. AMERICAN MOTORS INSURANCE COMPANY, Wn. 2d 215 (Wash. 1978)
If the insured recovers damages which include portions that were paid by insurance - and the insured is otherwise full compensated -- then the insured has an obligation to the damages covered by insurance to the insurance company. However, commonly the insurance company will pay 1/3 of the amount collected on their behalf towards insurance fees and also a proportion of costs incurred. This is an obligation that stems from Mahler v. Szucs, 135 Wn.2d 398, 419, 957 P.2d 632 (1998); Winters v. State Farm Mut. Auto. Ins. Co., 144 Wn.2d 869, 31 P.3d 1164 (2001); and Hamm v. State Farm Mut. Auto. Ins. Co., 151 Wn.2d 303, 88 P.3d 395 (2004).
I haven't applied this in the case of property damage, but it seems to me the same would apply.

Andrew Hay
Hay & Swann PLLC
201 S. 34th St.
Tacoma, WA 98418
www.washingtonlaw.net<http://www.washingtonlaw.net/>
andrewhay at washingtonlaw.net<mailto:andrewhay at washingtonlaw.net>
He/him/his
253.272.2400 (w)
253.377.3085 (c)
THIS IS A CONFIDENTIAL COMMUNICATION AND IS INTENDED FOR THE DESIGNATED RECIPIENT ONLY.  IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE SENDER IMMEDIATELY AND DESTROY ALL COPIES


From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Samuel M. Meyler
Sent: Monday, December 20, 2021 1:24 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Insurance/Subrogation Issue

Listmates,

This is off-topic but I'm hoping someone may have some experience with this.

PC/Homeowner suffers damage to their property as a result of construction at the property next door.  There was a loss of lateral support.  PC submitted a claim to their insurance company with an expert report.  Insurance company engaged their own expert who took the position that only a portion of the damages resulted from the construction activity.  Insurer issued payment to PC for the damages that their expert says were covered.

PC disagrees with the insurance company's expert and wants to pursue the claim against the neighbor for the balance but the insurance company is already trying to pursue collection for the amount that it paid out.  What happens in this situation?  It seems that the PC should be able to pursue the entirety of the claim that they have against the neighbor and if PC recovers amounts that were paid out by its insurer, PC would have to repay the insurer.  Alternatively, the insurance company should be pursuing recovery of all amounts that are claimed by the PC.

Any authority on this issue would be appreciated.  Thanks for your thoughts on the matter.

Sam


Samuel M. Meyler
Meyler Legal, PLLC
1700 Westlake Ave. N., Ste. 200
Seattle, Washington 98109
Tel:  206.876.7770
Fax:  206.876.7771
Email:  samuel at meylerlegal.com<mailto:samuel at meylerlegal.com>

NOTICE:

This electronic message contains information which may be Confidential or Privileged and constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act 18 USC 2510. The information is intended to be for the use of the individual or entity named above.  If you are not the intended recipient, please be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited.  If you received this transmission in error, please notify the sender and delete the copy you received together with any attachments.  Thank you.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20211220/9b513f34/attachment.html>