Default Judgment Vacated By Court in Subro Action

In New York State practice, a lawsuit is started when a Summons and Complaint is filed with the Clerk of the Court.  You generally have 120 days (i.e., approximately four months) to serve the defendant with the Summons and Complaint after it has been filed.  It is the act of filing that stops any applicable statute of limitations from running.  For example, let’s say a fire occurred August 1, 2012 and an Electrolux clothes dryer is the suspected cause. Strict products liability and negligence claims generally run three years from the date of the loss. [1]   I file suit with the Albany County Clerk on July 30, 2015.  I serve Electrolux via the New York State Secretary of State on November 15, 2015.   In this hypothetical, everything should be ok.  The act of filing (not serving) stops the statute of limitations from running, and so long as defendant is served within 120 days of the filing, then the lawsuit was properly initiated.

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Carrier Must Produce Its Underwriting File in Subro Litigation

Our last two newsletters discussed a Travelers Insurance subrogation action, involving an allegedly defective Daimler truck which caused a fire.  [1]    This month, we’ll talk about a third issue which the Court dealt with in that litigation. 

Daimler demanded that Travelers turn over its underwriting file.   An “underwriting file” is different from a “claims file.”   When a new customer applies for insurance, he/she usually submits an application.  The carrier may or may not obtain an inspection report and photographs of the property to be insured.  The carrier then decides whether or not it wants to insure the risk.  The material generated during this period is considered to be the “underwriting file,” although in my experience most carriers don’t actually maintain a written “file” in a file drawer.  Today, most records are electronically-stored, including the insured’s application.

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When Must the Subrogating Carrier Give Deposition Testimony?

Last month’s newsletter discussed a case where Travelers Insurance brought a subrogation action against Daimler and others, involving an allegedly defective truck which caused a fire. [1]    Last month’s column talked about the court’s ruling with respect to when, and how much, of a carrier’s file must be turned over during litigation.

A second issue which arose in that case concerned whether a representative of the subrogating carrier must give deposition testimony.  In federal practice, where a party is a corporation, the opposing attorney serves a “Rule 30(b)(6)” notice setting forth the areas in which the party wants to ask questions and leaving it to the other side to designate a person who will testify as to the designated categories. 

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