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. 


When Does a Subrogating Carrier's File Become Privileged?

A defective truck, manufactured by Daimler, and containing an power distribution module manufactured by Tyco, alleged failed and caused a fire.  Travelers paid under its policy and brought a subrogation action against Daimler and Tyco.

A discovery dispute arose during the course of this litigation.  The Court issued an Order determining three questions:  (a) how much of a subrogating carrier’s file must be produced and when does the “work product” privilege attach to the carrier’s file?; (b) must the carrier produce a witness to testify on behalf of the carrier or does it suffice if the insureds testify?; and (c) must the carrier produce its underwriting file? [1] 


Broken Beer Bottle Expert Precluded from Testifying

Bartender Bill Toomey was stacking an ice bin with 12-ounce bottles of Coors Light on May 23, 2009.  He grabbed two bottles with his left hand, placing one bottle between his index finger and thumb and another bottle between his index and middle fingers.  As he was placing the bottles in the ice bin, the bottle between his index and middle fingers exploded, severely injuring his index finger.  He was unable to work as a bartender for 26 weeks following this accident.


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