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West Virginia prohibits subrogation against political subdivisions



Subrogation is a just remedy that allows a person who pays to compensate another who was harmed by a negligent torturer to step into the shoes of the other to seek compensation from the person responsible for the debt. In West Virginia, regardless of the negligence of a political entity – such as a volunteer fire department or a city – no one is allowed to bring a suit into subrogation and collect from the responsible entity.

In West Virginia Counties Group Self-Insurance Risk Pool, Inc. v Great Cacapon Volunteer Fire Department, Inc., No. 19-0103, West Virginia Supreme Court of Appeals (November 4, 2020) disputes after a fire in 2016 destroyed the building where the Respondent Great Cacapon Volunteer Fire Department, Inc., (VFD) was housed. The owner of the building, the Morgan County Commission (Commission), received compensation for the loss from the petitioner West Virginia Counties Group Self-Insurance Risk Pool, Inc. (WVCoRP). WVCoRP sued VFD and other parties whose negligence alleged caused the fire, and in the process invoked a contractual right to subrogation. blocked by the West Virginia Code § 29-12A-13 (c) (1986), which prohibits claims to political subdivisions under subrogation law. On appeal, WVCoRP claims that § 29-12A-13 (c) does not apply because (a) its claim against VFD is anything other than the subrogation prohibited under that code provision; and (b) WVCoRPs are exempt by law from insurance laws of that State.

FACTUAL BACKGROUND

In its original complaint, WVCoRP stated that it had made payments under the insurance policy to compensate the Commission for its loss, and that under other policy terms, WVCoRP was entitled to subrogation for these payments. Faced with anti-subrogation legislation, WVCoRP then lodged an amended complaint, adding the Commission as the plaintiff and removing the subordinate's designation. The amended complaint amended the "insurance policy" and changed it to a "coverage agreement."

The VFD filed a motion to dismiss the amended complaint under West Virginia Code § 29-12A-13 (c), which immunizes political subdivisions from subrogation claims. WVCoRP argued that it did not seek a subrogation claim, and that even if it were, WVCoRP, as a self-insurance risk pool, is exempt from "insurance laws in this state" and therefore not subject to the prohibition in West Virginia Code § 29-12A-13 (c) . The district court granted VFD's request for dismissal.

DISCUSSION

In this appeal, WVCoRP's assertion continued that VFD's negligence caused the loss of the building owned by the Commission's WVCoRP under a right to subrogation, and subrogation claims are prohibited by West Virginia Code § 29-12A-13 ( c).

WVCoRP's argued that it does not continue under a subrogation right, the court reviewed West Virginia Code § 29-12A-13 (c) which states "[a] Measures filed against a political subdivision shall be filed in the name of the or the real parties of interest and may under no circumstances be made or reclaimed under the right of subrogation . ”It is undisputed that the VFD is a political subdivision as defined by the GTCA, and it is undisputed that subrogation claims are excluded from

WVCoRP argued that its claim does not fit into the definition of a subrogation claim as envisaged by West Virginia Code § 29-12A-13 (c) because WVCoRP is a pool of risk and does not act as an insurance company. subrogation, WVCoRP argued that the claim is not in fact a "true" subrogation.

WVCoRP argued that a risk pool is not an insurance company and that the coverage agreement is not an insurance. It also claims that it does not claim subrogation because a payment from a self-insurance fund to cover the loss of one of the members of the fund is not a payment of another's debt.

In its normal sense is subrogation. gives the payer the right to collect what it has paid from the party who caused the damage. Furthermore, when reviewing this charter, the general term "subrogation" used in W. Va. Code § 29-12A-13 (c) [1986] various circumstances whereby a party may acquire or exercise rights deriving from the rights of another party – such as suretyship, citizens, buyers, persons paying strangers, creditors and officials.

The simple language in West Virginia Code § 29-12A-13 (c) applies to all subrogation claims, not just those that arise in the insurance context. If WVCoRP's claim is not subrogation, there can be no other way to allow the suit.

Black & # 39; s Law Dictionary states: “[s] ubrogation simply means substituting one person for another; that is, a person may stand in another's shoes and assert the person's rights against the defendant. In fact, the case is due to the fact that the subrogation applicant for some legitimate reason has paid an obligation to the defendant.

To put this definition into actual perspective, the basis of WVCoRP's assertion is the risk pool funds were used to pay for the loss of the building that would have been paid by VFD due to VFD's negligence . VFD did not owe WVCoRP; so WVCoRP could not claim negligence against VFD in its own name.

Since WVCoRP's coverage agreement with the Commission gives WVCoRP the right to subrogation, WVCoRP claims that it had an action against VFD to recover the risk pool paid to the Commission because the Commission had an action against VFD. Whatever moniker it uses to conceal its claim as anything other than subrogation to avoid application of West Virginia Code § 29-12A-13 (c), WVCoRP's claim derives from the right to subrogation and can only probably be pursued on that theory. .

Creative appeal should be, and is most, offensive to a court. Subrogation is a fair remedy that has been in British case law – adopted by US courts – since before an insurance policy that it knows existed today. WVCoRP had an agreement that gave it a subrogation right, sued under that right, changed the wording of its accusations to avoid applying the charter through creative arguments. They could not get the argument past the Supreme Court.

© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to working as an insurance consultant specializing in insurance coverage. handling of insurance claims, fraud and insurance fraud almost equally for insurers and policyholders. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance industry. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award.

For the past 52 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurers and their claims staff to become insurance claims staff.

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