If an insurance company has brought a subrogation claim against you, the first question you might have is what is a subrogation claim and what can I do to try to get out of it? We answer these questions for you and explain what it means if a claim is being brought against you and how to best deal with it.
Subrogation is the act of stepping into the legal shoes of another in order to assert claims against a third party. Applied to car insurance, the subrogation process is a legal mechanism used by insurance companies to get money from the at fault party in a car accident for reimbursement of expenses that the insurance company paid from a car accident. It is known as subrogation because the insurance company subrogates or "steps into the shoes" of its covered insured to brings claims against the third party.
Below is an example of how subrogation works:
EXAMPLE: John has car insurance with State Farm. Bob rear ends John on the road causing damage to John's car. John's insurance company, State Farm, ends up paying for the repairs on John's car. State Farm then brings a subrogation claim on behalf of John and goes after Bob (and his insurer) to recover their loss from the crash.
Subrogation is pursued as a claim in the name of the insured against the third party or their insurance company.
Still confused? Okay, let's explain it like this. If a accident victim would have had a claim against you but instead their car insurance paid them for the harm you caused, the insurance company now has the right to try to get that money back from you. So if you were in a crash and has no insurance or not enough insurance and the victim's insurance company is seeking money from you, subrogation is what is happening to you.When the At-Fault Driver has Insurance
When the third party has insurance subrogation claims are often handled in-house between the two insurance companies. Let's continue with the example we started above because hopefully that helps explain it. Let's say our bad driver (Bob) had car insurance with GEICO. After the accident, John's repairs are covered by his own insurance with State Farm. State Farm can then step into John's shoes and submit a claim to GEICO for damages caused by its insured driver Bob. This type of subrogation claim can then be resolved between State Farm and GEICO and John and Bob will just get written notice.
This type of in-house subrogation frequently occurs when fault for an accident is not determined until after an investigation. In our example above where Bob rear-ends John, it is very obvious that Bob is at fault so Bob's insurance company would probably just agree to pay for John's damages. There would not be any subrogation. However, if Bob and John get in a more complicated accident a determination of who was fault won't be made until after an investigation is completed. But John doesn't have to just wait around with no car while the insurance companies investigation who was at fault. So John's insurance company covers his damages upfront. If the investigation concludes that Bob was at fault for the accident then State Farm can recover those damages from Bob's insurance carrier (GEICO).
This example relates to property damage. But the same logical and rationale applies to injury claims. What happens is that the victim's own insurance will pay when your insurance company did not pay enough because your policy limits were not large enough. But that insurance company will want to come back and bring a claim against the person deemed to be at-fault for the crash in the first place for any money they pay.When the At-Fault Driver Does Not Have Insurance
When the driver who was at-fault in the accident does not have insurance, subrogation claims are processed differently. The insurance company for the good driver would have to bring any subrogation claims directly against the bad driver.
Let's go back to our John and Bob example. Bob rear ends John but it turns out that Bob does not have car insurance. John's insurance company ends up covering John's damages. State Farm can then step into John's shoes and bring a claim directly against Bob.
First, State Farm's in-house legal department might send Bob a letter demanding reimbursement for John's damages. Then the insurer could file a lawsuit against Bob with John as the named plaintiff. Bob rear ended John so he was clearly responsible for the accident and will have no defense to the subrogation lawsuit. So the insurer would eventually be entitled to a monetary judgment against Bob for the amount it had to pay out to John.How to Respond if a Subrogation Claim is Brought Against You
Many people are caught off guard when they first get notice that a subrogation claim is being brought against them. The correct way to respond to a subrogation claim will vary depending on whether or not you have insurance.
When you have insurance:
If you were insured, then your insurance company will be responsible for any subrogation action brought against you. The most important thing to do in this situation is to make sure your insurance company is properly notified of both the accident and any subrogation rights that are being claimed resulting from the accident. Anytime you are involved in an auto accident you have an obligation to promptly notify your insurance company regardless of if you are at fault or not. So if you get notified of a subrogation action, your insurance company should already know about the accident. If not, you will need to tell them about the accident and the subrogation claim as soon as possible.
Assuming your insurance carrier is properly notified of the accident then any subrogation claims against you should be fully covered by your insurance. Your insurance company will then step in and handle the subrogation claim on your behalf. If the subrogation claim is resolved in house between the insurance companies your involvement might be fairly limited. Your insurance company may ask you for additional information about the accident to evaluate whether or not you were at fault. Otherwise the claim might simply be paid by your insurer and you will just get written notice.
When you do not have insurance:
If you do not have insurance for the accident you will have to defend the subrogation claim yourself (or hire your own attorney). Many insurance companies will come after you even if you do not have insurance. There is a billion-dollar cottage industry that has the upside of getting money from the wrongdoer which, theoretically, allows insurers to offer more competitive rates.
Most insurers send out their subrogation work to a collections firm. The good news the collection firm will usually take less than the full amount to settle the claim. Why? Even if the other insurance company sues you and gets a judgment entered against you they still might not have any way to enforce that judgment. If the insurance company does get a judgment against you they would have the same collection options in litigation as any other judgment creditor. The claimant could attach the judgment as a lien on any real property you own. They could also attempt to garnish your wages or bank accounts.
What to know if your insurance company pursues a subrogation claim against someone else
If your insurance contract with your own insurer covers your loss and then pursues a claim against the other driver (or their insurer), they are required to notify you. You will most likely get a notice letter. In the event that your insurer recovers money on the subrogation case, they would be required to give you a refund for any deductible you had to pay on your claim. There will be some difference from state-to-state but the law is largely similar in most states.
These are some of the frequently asked questions we get about car accident subrogation claims:
Subrogation claims are when an insurer seeks to recover accident costs (e.g., medical expenses, property damage, etc.) from the at-fault driver because they made underinsurance or underinsurance payments because the at-fault driver did not have any (or enough) insurance to cover the claim.
A waiver of subrogation is an agreement that prevents the insurer from going after the at-fault driver.
The at-fault driver hopes the uninsured/underinsured carrier waives subrogation which gets them off the hook for any subrogation claim.
If the insurer has a valid claim and you don't pay, there may be a judgment entered against you.
If you choose to not pay a subrogation, the insurer will continue to mail requests for reimbursement. Again, they may file a lawsuit against you. Ultimately, it is likely to have an impact on your credit.
Yes, you can. Lawyers representing insurance companies typically get a portion of the money that they recover making subrogation claims. They want to settle them quickly and get their money. So there is often an opportunity to settle for a cents on the dollar owed.
We are personal injury lawyers. Our law firm represents only personal injury victims. We do not represent people who are subject to a subrogation claim. We have posted this information because there is so much confusion out there as to what your personal exposure might be if a case resolves by settlement or trial for more money than you or your insurance carrier have paid.More Information