Early Investigation is the Key to Successful Subrogation

Submitted by:  Royce Ray, JD, Certified Subrogation Recovery Professional

The single most important ingredient to uncovering subrogation is an early incident investigation. I cannot emphasize that enough. I have previously touched on the significance of conducting an early investigation, but it is so critical to identifying subrogation that it bears repeating.

What do I mean by “early?” Simply stated, now. Not in a few minutes. Not in a few hours. Not in a few days. Early means right now. No delays. Of course, there will be situations where summoning emergency medical care for an injured worker or taking steps to mitigate a hazardous situation to prevent further or additional injury will naturally take precedence over starting a subrogation investigation. But the minute that those types of issues under control, subrogation should be investigated.

Why delve into the possibility of subrogation so early? Several important reasons. First, witnesses disappear quickly. Witnesses who were working nearby disburse and, for whatever reason, are often never identified or located. Witnesses also frequently move, seek other employment and even die. Moreover, even if a witness is available for interview, their memory of the details surrounding an event can fade over time. Consequently, to get the best understanding of the facts all people with knowledge need to be immediately identified and interviewed.

The second reason for conducting an early investigation is to prevent important evidence from getting lost or discarded. An early investigation will identify any product, machinery or equipment that must be set aside and preserved. That is vital to successful subrogation because having no product almost always means that no product liability claim can be asserted.

Third, incident scenes rapidly change over time for a variety of reasons. Few things are more devastating to identifying subrogation as a spoiled or materially altered incident scene.

An early investigation will yield the best evidence and will maximize the chances of revealing a subrogation opportunity worth pursuit, which could result in substantial savings on an employer’s comp insurance premiums.

One way that AEU drives down claims costs for ALMA members is the money savings generated through subrogation.  Since 2003, AEU has saved ALMA members over 10 million dollars through subrogation recoveries and the reserve eliminations on claims with subrogation.

A Day in the Life of the Subrogation Recovery Unit

I vividly recall the first fatality that I investigated after becoming AEU’s Director of Subrogation. That fateful morning I received an email stating that one of our insureds had experienced a fatality. The initial information that I received was that the worker died from a heart attack since he grabbed his chest and collapsed. Other information indicated that he had been electrocuted. I immediately left the office to investigate.

After viewing the scene, taking pictures and securing a recorded statement from the only eyewitness, it became apparent that this was not an idiopathic heart attack death. The deceased worker had been electrocuted. My investigation revealed two possible avenues of subrogation recovery—a state law product liability claim (he was using a hand tool) and a vessel negligence claim pursuant to section 905(b) of the Longshore Act.

The above incident underscores the importance of an immediate subrogation investigation, particularly of serious injuries or fatalities that could result in substantial USL&H claim exposure. The investigation should be done as soon as possible without delay. This is because evidence gets lost, memories fade, and witnesses may never be identified.

The above incident also demonstrates that you should always keep an open mind in investigating the who’s, what’s, when’s, where’s, how’s, and why’s. Do not speculate or rush to judgment, and never assume that what you initially learn is what actually happened. The investigation should be fact finding based upon first hand information, and all leads should be exhausted. Fortunately I did not assume that the deceased worker had died from a heart attack.

I cannot emphasize enough the power of an immediate investigation for identifying subrogation. Several months ago I was eating lunch at a local restaurant when I received an email on my blackberry that a large steel hull plate had fallen on a worker. I cut my lunch short and was on the scene within a few minutes. One of the witnesses initially denied any knowledge but later reluctantly admitted to me that he caused the plate to fall. He is employed by another company, so there is the potential for subrogation. I feel certain that this subrogation opportunity would have been lost had I not reacted quickly.

Once the incident scene has been secured all witnesses should be identified and interviewed, including those who may not have actually seen the incident. Written statements should usually be taken.

It is important to remember that having no product generally means that no tort claim can be asserted in court relative to that product, so early identification and preservation are the key components to perfecting a product liability subrogation opportunity. It’s too late for subrogation once the item is gone. Consequently, all products, equipment and machinery involved should be identified, photographed and stored in a secure place. A chain of custody log should be maintained and no destructive testing or alterations should be allowed.

Photographs and videos add tremendous value to subrogation pursuit. The old adage “a picture is worth a thousand words” holds true in subrogation. In my opinion, you can never have enough photographs depicting surfaces, distances, heights, perspectives, close-ups, product warnings, labels, environmental conditions, etc. If possible, pictures of the worker’s injuries should be taken. I have found that making an index of the photos is invaluable because as time passes you can demonstrate the intent of each photo without having to rely on memory.

It is good practice to find out whether anyone took any photos using their cell phone and whether the incident was captured by any security cameras. In the steel plate incident I located a witness who had snapped a photo using his cell phone the second after the plate fell. That photo may be critical evidence in mitigating the claim given the injuries that the injured worker is now claiming.

Subrogation is a powerful weapon in the claims handling arsenal that can drive down claim costs and lower an insured’s premiums. There is no substitute for an early investigation to identify subrogation.