Subrogating Under a “Bailment” Theory

A bailment is defined as a delivery of personalty for some particular purpose, or on mere deposit, upon a contract express or implied, that after the purpose has been fulfilled it will be redelivered to the person who delivered it, or otherwise dealt with according to that person’s directions or kept until it is reclaimed.[1] A bailment generally involves someone giving an item to someone else to hold. The most common example of a bailment is a parking garage, where you pay someone to hold your car for you. In determining whether a bailment exists, the courts will look at whether the owner of the item relinquished possession and control over it. [2]


When is an Expert Report Privileged?

As I’ve noted before, New York state court rules are generally more “pro-plaintiff” than federal court. In New York state court, a subrogating carrier does not have to turn over its expert report to the defense unless there are “special circumstances.” In state court, the subrogating carrier only need provide a short summary of what its expert is expected to testify to, along with a recitation of the expert’s qualifications and experience.


Expert Witnesses: New York State vs. Federal Practice

Any case sued in New York state court where damages exceed $75,000 may be removed to federal court by the defendant if the plaintiff and the defendant are “residents” of different states. This is based on a federal statute which gives federal courts “diversity jurisdiction” and is believed to give out of state defendants more protection than he/she would receive in the local state courts. In most of the product liability subrogation matters I’ve handled, the corporate defendant usually is located out of state and usually removes my state court case to federal court. The defendant must file the removal immediately – once the defendant has answered the complaint, he is deemed to have accepted the jurisdiction of the state court.


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