Contractual vs. Equitable Subrogation in Virginia

virginia subrogation attorneysEquitable Subrogation in Virginia

Subrogation is the legal process in which an insurer can step into the shoes of their policyholder to recover damages from the third party responsible for the loss.  Equitable subrogation is based on equity, or fairness, as defined by the Virginia Supreme Court in Xl Specialty Ins. Co. v. Dept. of Transp., 611 S.E.2d 356, 269 Va. 362 (Va, 2005):

Equitable subrogation is subrogation that arises by operation of law. It is not based on contract or privity of parties, but is “purely equitable in nature, dependent on the facts and circumstances of each particular case.” Centreville Car Care, Inc. v. North Am. Mortgage, 263 Va. 339, 345, 559 S.E.2d 870, 872 (2002) (quoting Federal Land Bank of Baltimore v. Joynes,179 Va. 394, 402, 18 S.E.2d 917, 920 (1942)). When a principal defaults on a contract guaranteed by a performance or payment bond and the surety performs on the bond, principles of surety law and the doctrine of equitable subrogation impose certain rights and duties running between the surety, principal, and obligor, and allow the surety to enforce such rights and duties. See Dickenson v. Charles, 173 Va. 393, 400, 4 S.E.2d 351, 353 (1939) (quoting Kendrick v. Forney, 63 Va. (22 Gratt.) 748, 749-50 (1872)); Fulkerson v. Taylor, 100 Va. 426, 432,41 S.E. 863, 865 (1902); Restatement (Third) of Suretyship and Guaranty § 27 (1996).

Equitable subrogation arises from the common law and can work against the insurer conducting business in Virginia.  For instance, where the Virginia policyholder has uninsured losses and recovers a judgment against the tortfeasor that does not equal the amount of total loss suffered by the insured, then the insurer cannot recover against the third party.

Contractual Subrogation in Virginia

The key difference in Virginia between equitable subrogation and contractual subrogation is that judges ultimately decide the outcome of an equitable subrogation action, while the language and intent of the parties control the outcome in a contractual subrogation case.  It is imperative for the parties to a subrogation case to understand the language of the insurance contract and how it affects subrogation rights.  For instance, insurance contracts can be written to give the insurer first right of subrogation, which cuts off most equitable subrogation worries.  Virginia subrogation attorneys would be wise to discuss contract provisions with clients operating in Virginia.
Editor:
Justin McLeod, Esq.
Associate
Chaplin & Gonet

Virginia Healthcare Subrogation

virginia subrogation attorneysVirginia subrogation attorneys need to familiarize themselves with the ways HIPAA compliance and General District Court discovery, namely the subpoena duces tecum, interact and ultimately impact healthcare subrogation practices in Virginia.  By addressing whether a subpoena duces tecum request is both served properly and is HIPAA compliant, the Virginia healthcare subrogator can avoid any ethical or procedural pitfalls.

Is There Proper Service?

It is imperative that Virginia healthcare subrogation counsel ensure that service of the subpoena duces tecum conforms to the rules of their state, the federal rules, and that of the state it was served from.  If a request is received from another jurisdiction then the Virginia healthcare subrogation attorney need only Google search the jurisdiction’s rules to pull them up.  Upon determination that the subpoena duces tecum does not conform to the applicable rules, then the Virginia subrogation attorney cannot legally respond to them.
Is the Subpoena HIPAA Compliant?
The Virginia subrogation attorney would be wise to double and triple check that the subpoena duces tecum conforms to HIPAA regulations.  Violation of HIPAA carries stiff penalties, namely civil penalties up to $1.5 million in annual fines and criminal penalties of up to ten years imprisonment for “covered entities.”  This leads to the next issue:
Are You a Covered Entity Under HIPAA?
45 CFR 160.103 defines covered entities as a “health plan, health care clearing house, or a health care provider who transmits any health care information in electronic form.”  If you are a Virginia healthcare subrogation attorney you are likely considered a covered entity or an agent for a covered entity under HIPAA regulations.
Is There a Valid Authorization For Disclosure?
Under HIPPA, a “valid authorization” is one that contains expressed written consent signed by the patient or their legal guardian for a specified purpose.  This consent must include a detailed description of what records are referred to and what purpose they are to be used.
Conclusions for the Virginia Healthcare Subrogation Attorney
Upon receipt of any subpoena duces tecum for health records the Virginia healthcare subrogation attorney need only remember two things: process and HIPAA.  If both are complied with then it is safe to respond, if however, one or both are not complied with then the Virginia subrogation attorney cannot respond to the subpoena duces tecum.
Editor:
Justin McLeod, Esq.
Associate
Chaplin & Gonet

Medical Bills for Personal Injury in Virginia

virginia subrogation attorneysEvery Virginia subrogation attorney knows how important medical bills, and their introduction into evidence, are for their day-to-day practice.  Often times in automobile subrogation the medical bills far exceed any damages to the car.  This article confronts the confusing evidentiary “Venn diagram” of Virginia law concerning medical bills and their admission into evidence. Virginia subrogation attorneys need to understand how the differing statutes and case law overlap and be prepared for objections from opposing counsel.  Each source of law will be examined in turn and then the article will conclude with a brief discussion of their overlap, interaction and trial strategies for the Virginia subrogation attorney bringing a personal injury action.

The Law

The first relevant statute is VA Code § 8.01-413.01 titled “Authenticity and reasonableness of medical bills; presumption.”  The statute states:

A. In any action for personal injuries, wrongful death, or for medical expense benefits payable under a motor vehicle insurance policy issued pursuant to § 38.2-124 or § 38.2-2201, the authenticity of bills for medical services provided and the reasonableness of the charges of the health care provider shall be rebuttably presumed upon identification by the plaintiff of the original bill or a duly authenticated copy and the plaintiff’s testimony (i) identifying the health care provider, (ii) explaining the circumstances surrounding his receipt of the bill, (iii) describing the services rendered and (iv) stating that the services were rendered in connection with treatment for the injuries received in the event giving rise to the action. The presumption herein shall not apply unless the opposing party or his attorney has been furnished such medical records at least twenty-one days prior to the trial.

This code section closely mirrors the language in McMunn v. Tatum, 237 Va 558, 379 S.E.2d 908 (Va. 1989) (hereinafter McMunn v. Tatum), which allows parties to introduce medical bills into evidence by laying a foundation through a lay witness.  On its face, this statute allows attorneys to get in records without dealing with reasonableness or authenticity objections as long as copies of the records are sent to opposing counsel 21 days before trial.  For most cases, if the Virginia subrogation attorney gets the records to opposing counsel within the 21 days, then there are usually no issues at trial.  However, with a careful reading of Mcmunn v. Tatum, opposing counsel can trip up a Virginia subrogation attorney with an authenticity objection.  A brief look at the holding in McMunn v. Tatum will prove instructive before discussing its impact upon VA Code § 8.01-413.o1.
McMunn v. Tatum was an appeal from a malpractice suit brought against a dentist.  The case examined two evidentiary issues: (1) whether a plaintiff’s testimony that he has received bills regular on their face and consistent with his testimony as to his injuries and treatment is sufficient to show that the bills “came from the sources claimed” and (2) that the introduction of bills of the kind described above is “some evidence” that they are reasonable in amount.  The Supreme Court of Virginia held the following:

A plaintiff may offer medical bills through the plaintiff’s testimony alone if he lays a foundation showing (1) that the bills are regular on their face, and (2) that they appear to relate to treatment, the nature and details of which the plaintiff has explained.  If the defendant challenges the authenticity of the bills, they will be insufficient in themselves to create a jury issue, and independent proof of authenticity will be necessary.  If the defendant challenges only their quantitative reasonableness, a jury issue is created on that question.  The jury may then consider the bills as “some evidence” of their quantitative reasonableness, to be weighed against such evidence as the defendant may present on that question.  If the defendant contests their medical necessity or causal relationship and further represents to the court that the defense will offer evidence on those issues, the bills will be insufficient in themselves to create a jury issue, and expert foundation testimony will be prerequisite to their admission.

 The majority opinion contains an important footnote tempering the above requirements: “The issues of medical necessity and causal relationship are substantially uncontested where a defendant who intends to offer no evidence on those issues merely objects to the medical bills for the purpose of “putting the plaintiff to his burden of proof.”  This important footnote is an invaluable arrow in the Virginia subrogation attorney’s quiver.  In Virginia General District Court cases, where neither party wants to spend money on expert witnesses, McMunn v. Tatum stands for the proposition that plaintiffs may introduce medical bills into evidence by testimony without much worry as to reasonableness nor medical necessity objections.
One could be forgiven for looking at both VA Code § 8.01-413.01 and McMunn v. Tatum and concluding between case law and the above-mentioned statutes Virginia subrogation attorneys have the process of introducing medical bills into evidence pretty much covered.  However, there is another key statute dealing directly with the introduction of medical bills in General District Court (courts not of record) or Circuit Court, where the defendant appeals: VA Code § 16.1-88.2, titled “Evidence of medical reports or records; testimony of health care provider or custodian of records.”  This code section predates the Supreme Court handing down McMunn v. Tatum, in fact, the Supreme Court cites VA Code § 16.1-88.2 in its majority opinion.
The relevant section of VA Code § 16.1-88.2 states:

In a civil suit tried in a general district court or appealed to the circuit court by any defendant to recover damages for personal injuries or to resolve any dispute with an insurance company or health care provider, either party may present evidence as to the extent, nature and treatment of the injury, the examination of the person so injured and the costs of such treatment and examination by a report from the treating or examining health care provider as defined in § 8.01-581.1 and the records of a hospital or similar medical facility at which the treatment or examination was performed. Such medical report shall be admitted if the party intending to present evidence by the use of a report gives the opposing party or parties a copy of the report and written notice of such intention 10 days in advance of trial and if attached to such report is a sworn statement of the treating or examining health care provider that: (i) the person named therein was treated or examined by such health care provider; (ii) the information contained in the report is true and accurate and fully descriptive as to the nature and extent of the injury; and (iii) that any statement of costs contained in the report is true and accurate. Such hospital or other medical facility record shall be admitted if attached to it is a sworn statement of the custodian thereof that the same is a true and accurate copy of the record of such hospital or other medical facility. 

A careful read of VA Code § 16.1-88.2 reveals language that echoes both the verbiage in McMunn v. Tatum and VA Code § 8.01-413.01, but with one key difference: the foundation is laid by the treating health care provider(s) by sworn affidavit.  By obtaining an affidavit from the treating health care provider(s) and sending a copy of the records and affidavit to opposing counsel 10 days before trial Virginia subrogation attorneys seem to be guaranteed their admission into evidence.   Authenticity concerns are dealt with by requiring a sworn statement by the custodian that the bill(s) are a true and accurate copy.

What does it all mean?

If in General District Court the Virginia subrogation attorney would be best suited to follow the requirements of VA Code § 16.1-88.2.  However, given the difficulty in obtaining timely responses from medical providers it may not be an option.  Then, one can look to VA Code § 8.01-413.01 and McMunn v. Tatum to almost guarantee the admission of the required medical records.  However, there is still one problem area facing both General District Court and Circuit Court plaintiffs traveling the path of VA Code § 8.01-413.01: authenticity.  A defense attorney can raise an objection to authenticity, given the medical records are almost always copies, and possibly keep the records out.  This last hurdle can be overcome by the diligent Virginia subrogation attorney who satisfies the requirements set out in VA Code § 8.01-413(A), which states the following:

A. In any case where the hospital, nursing facility, physician’s, or other health care provider’s original records or papers of any patient in a hospital or institution for the treatment of physical or mental illness are admissible or would be admissible as evidence, any typewritten copy, photograph, photostatted copy, or microphotograph or printout or other hard copy generated from computerized or other electronic storage, microfilm, or other photographic, mechanical, electronic or chemical storage process thereof shall be admissible as evidence in any court of this Commonwealth in like manner as the original, if the printout or hard copy or microphotograph or photograph is properly authenticated by the employees having authority to release or produce the original records.

In short, if the Virginia subrogation attorney can produce an affidavit from the custodian of records at the institution where the plaintiff received medical care that the copies are authentic, then they are admissible.  The Virginia subrogation attorney can keep this all straight by remembering that whenever the absolute right to admissibility granted by VA Code § 16.1-88.2 is unavailable they should look to the protections offered by VA Code § 8.01-413.01 and  McMunn v. Tatum for both reasonableness and necessity and VA Code § 8.01-413(A) to sew up authenticity issues.  Medical bills rest upon a three legged stool in Virginia, the legs are: reasonableness, necessity and authenticity; if any one leg is missing your whole Virginia subrogation case may fall down.
 
Editor:
Justin McLeod, Esq.
Associate
Chaplin & Gonet

Making Virginia Jurors Care about Subrogation

virginia subrogationThere are several important steps Virginia trial counsel can take when litigating a subrogation case in front of a Virginia jury.  Paul Falk’ and Bradley Arnold’s article in the recent Subrogator magazine delves into effectively communicating to jurors the role of subrogation and minimizing prejudices against insurance companies.  Their work should be adopted by Virginia subrogation attorneys looking to hone their jury trial skills.  Arnold and Falk successfully litigated a property damage case involving a negligently installed fireplace in Wisconsin, which is the basis of their article and the following advice for Virginia subrogation attorneys:

Theme Development

This is a key point for Virginia subrogation attorneys litigating cases in front of juries.  Jurors have never heard of subrogation and need to be educated as to what it is and why your client, the insurance company, is entitled to it.  Virginia subrogation attorneys would be wise to establish a theme of wrongdoing that has occurred, and that the jury’s role is to prevent such wrongdoing in their community.  Virginia subrogation attorneys would be wise to downplay the procedural aspects of subrogation, and concentrate more on the equitable aspects of it.

Voir Dire

The Virginia subrogation attorney should ask jurors whether they can be fair to a property insurer when judging the merits of the case.  Counsel would also be wise to use voir dire to explain to the jurors what subrogation is, emphasizing that subrogation is simply trying to place fault on the appropriate party.

Opening

Unlike a personal injury case, Virginia subrogation cases should revolve more around culpability rather than damages.  Even if damages are in contention, counsel would be wise to address any disparities in witness testimony or closing arguments.

Closing

Closing arguments are a chance for the subrogation attorney to remind the Virginia jury of their state’s role in shaping this great nation’s government, and that jurors have long acted as the community’s conscience, not the king’s.

Clarifying Role of Virginia Subrogation Counsel to Insured

virginia subrogationThe blog post recently by William Gericke of Cozen O’Connor brought up an important issue concerning all Virginia subrogation counsel.  Every experienced Virginia subrogation attorney has encountered an instance where the insured mistakenly assumed “your my lawyer.”  This problem has to be adequately addressed by the Virginia subrogation attorney to maintain ethical standards and avoid unnecessary litigation.  for instance, where no agreement between the insured and the carrier is in place delineating what losses of the insured are included in suit, a disgruntled policyholder can file suit against their insurer for uncompensated damages.  Mr. Gericke’s article uses Massachusetts cases as an example, but nonetheless, the legal principles still ring true for Virginia subrogation practitioners.
The case of Sandman v. Quincy Mut. Fire Ins. Co., et al. (Mass. App. No. 10-P-2080, January 25, 2012) deals with the above scenario, what can happen when an insured is not advised whether their losses are included in a subrogation suit.  In the case Quincy Mutual brought a subrogation action against a heating oil delivery company, claiming they had spilled 100 gallons of fuel oil in Elaine Sandman’s property during delivery.  Quincy paid for the $200,000 remediation costs arising from the oil spill, but denied coverage for damage to her personal property due to a policy exclusion.  Thereafter, Quincy retained subrogation counsel to pursue its remediation costs from the oil delivery company.
After the incident, Sandman began looking for an attorney to pursue her uninsured losses when she was contact by counsel representing Quincy in its subrogation claim.  For the next five years he represented to her that he represented her interests and those of Quincy both verbally and once in writing.  He never mentioned to Ms. Sandman that he was not pursuing her damages, but only those of Quincy.  When the case reached settlement in 2009 subrogation counsel, for the first time, informed Ms. Sandman that he only represented Quincy Mutual and that he could not represent her in any further actions due to a conflict of interest arising out of his representation of Quincy in its subrogation action.
Luckily for Quincy, they were not held vicariously liable for the misrepresentations and malpractice of their subrogation counsel.  The court held that that since the conduct of the litigation is the responsibility of trial counsel, the insurer is not vicariously liable for the negligence of the attorneys who conduct the defense or representation of the insured.
The entire debacle could have been avoided had subrogation counsel made the appropriate disclosures to the policyholder at the outset.  Virginia subrogation attorneys should take the Massachusetts ruling to heart, that clear communication is imperative with a policyholder, and the sooner the better.
For more on Virignia subrogation practice visit the website of Chaplin & Gonet.

New Subrogation Arbitration Rules

richmond collection attorneysImportant changes have been implemented by Arbitration Forums, Inc. that affect subrogation practitioners appearing in the Property Arbitration Forum.  These rules came into effect last month, March 1, 2012, and one of the most profound changes manifests itself in Rule 3-7, stating:
“All written contentions and supporting evidence submitted to the Forum are all that is to be considered by a Property Arbitration arbitrator, and that a party attending the hearing is not allowed to verbally present its case or offer any argument that is not included within their written contentions.”
Rule 3-7(a) goes on to state that practitioners may clarify or amplify points made in written contentions, or submit additional evidence, at the arbitrator’s request.  No arguments may be presented, and only questions posed by the arbitrator may be answered.    Finally, Rule 3-7 has shortened the time allowed to submit evidence for arbitration, now all evidence must be received by the Materials Due Date, instead of the arbitration hearing date, as was previously the case.
This represents a major strategic shift for the Virginia subrogation attorney entering a arbitration with an opposing insurance company.  Now, practitioners must be ever closer attention to the deadlines handed down by arbitrators to ensure all relevant evidence has been submitted.  Furthermore, practitioners must ensure that any emotional impact or consequential damages are adequately represented in the written contentions and evidence.  No longer can Virginia subrogation counsel rely on verbal arguments to elucidate for the arbitrator how the written evidence impacted the claimant.
For more on Virginia subrogation visit: https://www.chaplingonet.com

Frozen Pipe Litigation – A Virginia Perspective

This subrogation post is a continuation of a running theme of plumbing-related subrogation challenges.  I hope to address some issues elucidated in the article written by Lesa Key relating to frozen pipe litigation, but with a Virginia focus.
Where and when do frozen pipes occur?
Frozen water pipes usually occur outside of a residential or commercial building.  In Virginia, you would more likely see this problem in the Northern Virginia regions, like Loudon county and along the Blue Ridge Mountains of the Shenandoah Valley.  However, even ares like Richmond, normally a more temperate clime, can experience frozen pipes due to insufficient insulation, which will be touched upon later.  Frozen pipes even occur underground.  This is rare.  Obviously, frozen pipes occur during the winter months, but pipes are especially vulnerable during a cold snap.
What to look for when pursuing Virginia frozen pipe subrogation claims
There are several steps the Virginia subrogation attorney can take to ensure a methodical, thorough investigation and pursuit of a frozen pipe case.  First, examine the applicable law pertaining to construction and plumbing.  In Virginia there is a statute of repose that limits the pursuit of a subrogation claim against a plumber or construction company to five years after the repair/construction:
§ 8.01-250. Limitation on certain actions for damages arising out of defective or unsafe condition of improvements to real property.
No action to recover for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury, shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction, or construction of such improvement to real property more than five years after the performance or furnishing of such services and construction.  Virginia Code section 8.01-250 states the following:

The limitation prescribed in this section shall not apply to the manufacturer or supplier of any equipment or machinery or other articles installed in a structure upon real property, nor to any person in actual possession and in control of the improvement as owner, tenant or otherwise at the time the defective or unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought; rather each such action shall be brought within the time next after such injury occurs as provided in §§ 8.01-243 and 8.01-246.

Check your town, city or county ordinances regarding plumbing and building codes to ensure that any repairs made complied with applicable regulations.  Virginia’s statute of repose is fairly short compared to other states that impose them.  This requires prompt investigation and determination of the date of repair or construction.

If the subrogation attorney’s investigation reveals that the repair or installation did occur within the last five years then the investigation may proceed.  The Virginia subrogation attorney may decide to call the plumber to testify, or call an engineer or metallurgist to testify as an expert.  As a practice note, the Virginia subrogation attorney would be wise to give prompt notice to the installer, to give them an opportunity to conduct a pre-repair inspection.

Plenty of photographs of the scene should be taken along with preserving any portions of the pipe that are removed for repair.  The pipe segment is crucial evidence for litigation purposes.  Lastly, if a negligent repair is suspected, attempt to retrieve any invoices or receipts, and these are unavailable, seek the business records of the repair company.

Conclusion

Virginia subrogation attorneys face less frozen pipe cases than other jurisdictions, but that does not mean that our Commonwealth’s attorneys should be any less prepared to pursue a frozen pipe case.

 
 

Aggregation and Water Supply Losses

The flexible hoses that feed our toilets, sinks and other plumbing fixtures can lead to catastrophic plumbing failures through poor design and manufacturing processes.  Before delving into the legal aspects of these losses and the aggregation of the subrogation claims it is necessary to trace the development of the plumbing fixtures in question.
Like most building materials, flexible supply lines have moved from metal to plastic over time.  Early designs consisted of copper/nickel-plated brass coupling nut that could screw on to a toilet’s fill valve.  Though reliable, manufacturers could not resist the lower cost of plastic tubing material, and eventually began to transition to thinner plastic tubes in the 1990s and 2000s.  These new designs incorporated a thin plastic tube covered with a braided metal sheath, which you can still find in hardware stores today.  Manufacturers opted for thinner tubing and compensated with the metal sheaths, believing it would provide any necessary reinforcement.  However, these sheaths were very susceptible to chlorinated water which would cause erosion, and eventually rupture.
In addition to the weak hoses, manufacturers also began using acetal plastic coupling nuts to connect tubing to toilet float valves.  Acetal plastic becomes brittle when cut at right angles, so when nuts were cut the right angles were weak and prone to cracking.  This coupled with the weak tubing has led to multitudinous claims  of supply-line failures.  Insurance companies often neglect to pursue manufacturers on individual claims due to a cost/benefit analysis, however, as Robert Stutman, Daniel Hogan & Sherief Ibrahim, have posited in their latest article “Recovering on Water Supply Line Losses Through Aggregation”, insurance companies can benefit from aggregating these types of claims together.
The reasons for aggregation are many.  First, it solves the cost-prohibitive approach of prosecuting individual claims.  Second, the risk of inconsistent prosecution strategies or inconsistent verdicts is minimized.  As the authors noted in their article:

“By grouping and investigating the claims as a mass tort, carriers can develop an investigation and litigation plan that is predicated upon uniformity and strength in numbers.  The aggregation plan can implement procedures to insure that legal teams and experts are properly vetted, physical evidence is properly secured and preserved and theories of liability are substantively refined and applied in a consistent manner to all supply line claims.”

Stuteman, Hogan and Ibrahim’s method of approach can serve as a model for many types of defective manufacturing claims plaguing insurers.  When many similar small claims arise that present similar facts insurers would be wise to discuss with their subrogation counsel whether aggregation would be appropriate.
If your company faces subrogation needs in the state of Virginia contact Chaplin & Gonet to discuss how our firm can help your company’s bottom line.