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July 26, 2023
No Right to Subrogation

Mutual Benefit Insurance Defeats Subrogation Effort

Barry Zalma
Jul 26, 2023

Read the full article at https://lnkd.in/gWx8n6Zc and see the full video at https://lnkd.in/gG3id9NB and at https://lnkd.in/gy9UYfrd and at https://zalma.com/blog plus more than 4550 posts.

Typically, an insurer that pays a claim to an insured as a result of the negligent acts of a third party an insurer has the right, in the name of its insured, to sue the responsible party in the name of its insured. The right to sue in the name of the insured results from the equitable remedy of subrogation and is effective as long as the insured has not waived the right of its insurer to subrogate.

In Delaware there is an exception to the equitable remedy because landlords and tenants are presumed to be co-insureds under the landlord’s fire insurance policy unless a tenant’s lease clearly expresses an intent to the contrary. If the rule applies, the fact that the landlord’s insurance is presumed to be for the mutual benefit of the landlord and the tenant, and the insurer cannot pursue the tenant for the landlord’s damages by way of subrogation.

The Superior Court ruled in the tenants’ favor at summary judgment that the rule applied because the lease did not clearly express an intent to hold the tenants liable for the landlord’s damages.

In Donegal Mutual Insurance Company A/S/O Seaford Apartment Ventures LLC T/A The Villages Of Stoney Brook Apartments v.Thangavel and Muthusamy, No. 379, 2022, Supreme Court of Delaware (July 18, 2023) the apartment’s insurer sued the tenants for the $77,704.06 to repair the water damage they caused.

The Superior Court ruled in the tenants’ favor at summary judgment that the rule applied because the lease did not clearly express an intent to hold the tenants liable for the landlord’s damages.

ANALYSIS

In Delaware landlords and tenants are presumed to be co-insureds under the landlord’s fire insurance policy unless a tenant’s lease clearly expresses an intent to the contrary. If the rule applies, the landlord’s insurer cannot pursue the tenant for the landlord’s damages by way of subrogation.

The tenants who leased an apartment from Seaford Apartment Ventures, LLC, Donegal’s insured, were considered to be coinsueds since the lease did not express an intent to the contrary. The complaint alleged that the tenants hit a sprinkler head while they flew a drone inside the apartment. Water sprayed from the damaged sprinkler head and caused damage to the apartment building.

The Superior Court granted the tenants’ summary judgment motion. It concluded that the lease in this case was substantially similar to the leases in three other Delaware all of which found that the leases did not clearly express an intent to the contrary.

CONCLUSION

The Supreme Court concluded that the Superior Court correctly found that the apartment lease did not clearly express an intent that the tenants were responsible for the water damage in this case. Since the Seaford Apartment lease did not specifically address liability for fire or water damage caused by the tenant’s negligence the policy issued by Donegal was issued for the mutual benefit of the insured and the tenant and Donegal had no right to subrogate..

Also, the Superior Court correctly observed that the policy considerations recognizing the one-sided nature of residential leasing and protecting the parties’ typical expectations regarding the assignment of risk of loss – are served by applying the rule in this case because residential landlords control the lease terms. If they want, they can clearly express a requirement that the tenants obtain fire insurance or notify them that they would not benefit from the landlord’s fire insurance policy.

ZALMA OPINION

Most commercial fire insurance policies, like the Donegal policy in this case, allow the insured to waive the insurer’s right of subrogation. Apparently, the landlord did not specifically waive its insurer’s right to subrogation but, Delaware precedent, accomplished the same effect by, as a mater of law, made the landlord’s policy a policy for the benefit of both the insured and the tenant, effectively acting as a waiver of subrogation.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

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00:08:23
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In Linh Wang v. Esurance Insurance Company, No. C24-0447-JCC, United States District Court, W.D. Washington, Seattle (May 1, 2026) John C. Coughenour, United States District Judge, found that throughout this case, culminating with its briefing on Plaintiff’s renewed motion and that Defendant has subjected Plaintiff to unnecessary motion practice for clearly discoverable information and made dubious representations (including to the Court).

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This case involves an underinsured/uninsured motorist insurance bad faith claim arising from a 2017 motor vehicle collision. The plaintiff, Linh Wang, alleges that Esurance Insurance ...

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Read the full article at https://www.linkedin.com/pulse/ambiguous-contract-repair-assignment-barry-zalma-esq-cfe-2xppc, see the full video at https://rumble.com/v79is1s-ambiguous-contract-to-repair-not-an-assignment.html and at and at https://zalma.com/blog plus more than 5300 posts.

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00:08:02
July 03, 2026
Buying Insurance After the Accident is Fraud

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Posted on July 3, 2026 by Barry Zalma

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That same day, at 6:06 p.m., more than five hours after the accident, Robinson purchased Progressive insurance for the vehicle involved in the collision.

The next morning, Robinson called Progressive to report the claim and stated that the accident occurred around 6:15 p.m. Progressive recorded that call without advising Robinson that it was being recorded. Progressive later conducted a special investigative unit investigation the claim because it was submitted shortly ...

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July 02, 2026
Failure to Comply With Policy Conditions Defeats Claim

Deprive Insurer of the Ability to Properly and Timely Investigate Claim & Recover Nothing

Posted on July 2, 2026 by Barry Zalma

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No Contract Claim No Bad Faith Claim

In South Alexander Development I, LLC v.Markel American Insurance Co., Civil Action No. 23-1436-JWD-SDJ, United States District Court, M.D. Louisiana (June 24, 2026) South Alexander Development I, LLC (SADI) owned and operated a solar farm in Springfield, Louisiana that allegedly sustained significant Hurricane Ida damage.

After SADI submitted a claim, MAIC ultimately paid $1,099,614.02 for undisputed physical damage plus the $210,000 income-loss policy limit. SADI later sued for breach of contract and statutory bad faith, contending MAIC failed to fully investigate and adjust the claim; MAIC sought summary judgment, arguing SADI failed to cooperate and withheld material repair-cost information.

LAW:

Louisiana insurance policies are interpreted as contracts according to their plain meaning, and the insured bears the burden ...

post photo preview
July 02, 2026
Failure to Comply With Policy Conditions Defeats Claim

Deprive Insurer of the Ability to Properly and Timely Investigate Claim & Recover Nothing

Posted on July 2, 2026 by Barry Zalma

Post number 5385

No Contract Claim No Bad Faith Claim

In South Alexander Development I, LLC v.Markel American Insurance Co., Civil Action No. 23-1436-JWD-SDJ, United States District Court, M.D. Louisiana (June 24, 2026) South Alexander Development I, LLC (SADI) owned and operated a solar farm in Springfield, Louisiana that allegedly sustained significant Hurricane Ida damage.

After SADI submitted a claim, MAIC ultimately paid $1,099,614.02 for undisputed physical damage plus the $210,000 income-loss policy limit. SADI later sued for breach of contract and statutory bad faith, contending MAIC failed to fully investigate and adjust the claim; MAIC sought summary judgment, arguing SADI failed to cooperate and withheld material repair-cost information.

LAW:

Louisiana insurance policies are interpreted as contracts according to their plain meaning, and the insured bears the burden ...

post photo preview
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