Subrogation Action Does Not Carry Over to Tortfeasor’s Ex-Wife

Husband (“H”) and wife (“W”) went through a bitter divorce, which involved a court proceeding.  H argued that a townhouse complex he owned in his name was his alone and that his wife was not entitled to share in its value.  The Court overseeing the divorce disagreed, and ruled that a townhouse was part of the “marital property” to which W would share.   Tragically, H subsequently used explosives to blow up the townhouse, killing himself in the process.

Numerous lawsuits were filed against H’s estate seeking to recover for the personal injuries and property damage caused by the explosion.  New Hampshire Insurance Company paid damages on behalf of its insured, the Links Club, and filed a subrogation action against not only the estate, but also against W and W’s two daughters.   The Court dismissed the lawsuit against W and her daughters.  W had been divorced from H for several years and neither W nor the daughters had lived with H for almost five years prior to the explosion, nor did they have any “authority to control” H’s actions.  As such, the Court upheld the lower court’s order dismissing the action, but apparently (the decision is unclear) allowed the subrogation action to proceed against H’s estate [1].

The Court reasoned that, while W was a part owner of the townhouse (by virtue of the Court’s earlier divorce ruling), W was akin to an out-of-possession judgment creditor.  W neither maintained nor controlled the townhouse where the explosion occurred.  Her status as creditor did not make her individually liable for the criminal conduct of her ex-husband.

Bottom Line:  Where the tortfeasor who caused the property damage is deceased, the courts will not allow a lawsuit to proceed against individual members of the deceased’s family, unless those individuals somehow had “control” over the deceased and an opportunity to prevent the property damage from occurring.


[1] New Hampshire Ins. Co. v. Bartha, 858 N.Y.S.2d 127 (1st Dept May 8, 2008)

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