You hired an expert and a lawyer and set aside some funds for subrogation so now you can “sit back and wait” for your recovery money, right? Very few cases make it to trial where full recovery plus costs (and sometimes damages) can be recovered (see D.M. Drugs v. Bywater, MacPherson v. Allen and Hall v. Kawartha Karpet on our website). In my experience, there are many reasons that recovery efforts do not go to trial. One good reason is that the field work was completed in a thorough manner by competent forensic engineers. Unfortunately, the majority of the time, most subrogation cases are not handled properly and are settled for the wrong reason.
I have learned over the years that people will take shortcuts or use alternative strategies in a misguided attempt to impress their corporate bosses or clients.
So why do I believe that most subrogation cases won’t lead to recovery? There is more than one reason, so let’s examine some common reasons that I have observed over my years of providing expert opinions and testimony.
1. The expert you hired doesn’t complete a thorough and comprehensive forensic investigation. This expert could be a “hired gun” that provides a report that suits your subrogation strategy but doesn’t reflect the duty the expert owes to the court (see “Forensic Engineering-Can any Engineer do it? by Ron Koerth). Alternately, your expert may not be qualified to complete technical investigations and/or have a very limited skill set. Or, your expert may just be lazy or may want to impress you by writing a report that doesn’t cost you much.
2. The expert you hired doesn’t have any experience providing evidence at formal judicial or quasi-judicial proceedings. This is a big one! I have witnessed many experts’ testimony and I can tell whether they have been properly mentored. A professional witness knows how to make their technical analysis understandable and will not get “taken on a trip to the woodshed” during cross-examination.
3. You never intended for this to go to trial and you want to settle at any cost. Don’t get a reputation for settling losses or you will be taken advantage of, guaranteed. Subrogation is not easy and there are many hurdles along the way. If you have assembled the right team, you have to have the confidence that they will be successful. If your analysis is accepted by the court, you recover your money and in most cases your costs and in some cases damages (just talk to Howard Lightle at Weaver Simmons, Jim Regan at Regan Desjardin, Mark Harrington at Torkin Manes and Ian Gold at Thomas Gold Pettinghill).
There are many more reasons why a subrogated claim can fail, so be mindful of your strategy and be thorough. The most important aspect of a subrogated claim is to spend time at the beginning and ensure that the site investigation was comprehensive and thorough. When I am asked to review subrogation files I start at the initial underpinnings for the case. If the site was not documented thoroughly, you don’t have a hope of recovering the money you spent.
