Allstate Insurance Company et al v. Electrolux Home Products Inc
ORDER: The Court denies in part and grants in part Defendant's Motion to Sever, to Dismiss, and to Transfer Divisions [ECF No. 6 ]. Signed by the Honorable R. Bryan Harwell on 5/19/2017. (hcic, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Allstate Insurance Company, Allstate
Property & Casualty Insurance Company,
Allstate Indemnity Company, and Allstate
Vehicle and Property Insurance Company,
Electrolux Home Products, Inc.,
Civil Action No.: 4:16-cv-03666-RBH
This is an insurance subrogation action. The matter is before the Court for a ruling on
Defendant’s Motion to Sever, to Dismiss, and to Transfer Divisions. See ECF No. 6. The Court denies
in part and grants in part Defendant’s motion for the reasons herein.1
Plaintiffs provided insurance coverage to five different property owners in South Carolina who
suffered losses in fires allegedly caused by a defective design in clothes dryers manufactured by
Defendant. Plaintiffs, as subrogees of their insureds, filed this products liability action against
Defendant alleging causes of action for strict liability and negligence and seeking both actual and
punitive damages. See Complaint [ECF No. 1]. The Court has diversity jurisdiction over this matter
pursuant to 28 U.S.C. § 1332.
In their complaint, Plaintiffs allege Defendant designs, manufactures, and sells gas and electric
“ball-hitch” style clothes dryers. Id. at ¶ 3. The ball-hitch design includes the following features: (1)
Pursuant to Local Civil Rule 7.08, the district court may decide motions without a hearing. The Court has
reviewed the parties’ filings and determined a hearing in this matter is unnecessary.
a dryer drum that rotates around a fixed rear axis and contains a void space located directly behind the
dryer drum, (2) a blower motor encased in a blower housing, and (3) a trap duct with a mesh lint trap
located in front of the dryer cabinet. Id. at ¶¶ 12-13. In 1995 and 1996, Defendant changed the
materials used in certain components—including the blower housing and trap duct—from steel to
combustible plastics. Id. at ¶¶ 14-16. During testing, a dryer lit on fire: the fire ignited in the dryer
cabinet and spread to the plastic trap duct. Id. at ¶ 18. Further testing showed a fire that started in the
dryer cabinet could spread to the blower housing and trap duct, where the plastic components could melt
and spread fire outside the dryer cabinet. Id. at ¶¶ 19-20. Additionally, Defendant received consumer
complaints and warranty claims about fires in the dryers, and one of Defendant’s product engineers
acknowledged during an investigation by the Japanese government that lint could travel from the dryer
drum and ignite either the contents of the drum or lint accumulated in the lint trap. Id. at ¶¶ 21-22, 2425. The Japanese government forced a recall of Defendant’s ball-hitch dryers in 2005, but Defendant
never issued a similar recall in the United States and never informed the Consumer Product Safety
Commission of the fire risks associated with the dryers. Id. at ¶¶ 25-28.
Plaintiffs further allege that their insureds/subrogors had Defendant’s ball-hitch dryers installed
on their properties and that the dryers ignited and caused significant fire-related property damage. Id.
at ¶¶ 31-34. Plaintiffs’ complaint includes the following chart summarizing the five separate losses:
Out in Excess of
Lewis Mark & Erin Bryant
117 Elrod Place Drive
Piedmont, South Carolina
Mark W. & Erika Chapman
1112 South Edisto Drive
Florence, South Carolina
James M. & Laura Jennings
1115 Flint Hill Street
Rock Hill, South Carolina
Carrie C. Samuel
103 Manning Court
Greenwood, South Carolina
26 War Admiral Way
Greenville, South Carolina
Id. at ¶ 4. As a result of the losses caused by the fires, Plaintiffs’ insureds/subrogors made claims on
their respective insurance policies, and Plaintiffs duly paid these claims. Id. at ¶ 35. Plaintiffs then
brought this subrogation action against Defendant, and Defendant filed the instant Motion to Sever, to
Dismiss, and to Transfer Divisions. See ECF No. 6. Plaintiffs filed a response in opposition, and
Defendant filed a reply. See ECF Nos. 8 & 9.
In its motion, Defendant requests that the Court (1) sever the five claims asserted in Plaintiffs’
complaint, (2) dismiss four of the severed claims for lack of subject matter jurisdiction, (3) transfer the
remaining claim to the Rock Hill Division of this Court, and (4) dismiss Plaintiffs’ claim for punitive
damages. See ECF No. 6.
Defendant asserts Plaintiffs’ complaint asserts “five improperly consolidated claims,” and
Defendant asks the Court to sever these claims pursuant to Federal Rule of Civil Procedure 21. ECF
No. 6 at 1; ECF No. 6-1 at pp. 3-10. Defendant argues severance is necessary to avoid unfairness,
prejudice, and jury confusion. ECF No. 6-1 at p. 3. As explained below, the Court finds severance is
“Under the Rules [of Civil Procedure], the impulse is toward entertaining the broadest possible
scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly
encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). Rule 18 permits a party
to join “as many claims as it has against an opposing party.” Fed. R. Civ. P. 18(a). Rule 20 governs
permissive joinder of parties and allows plaintiffs to join in one action if “(A) they assert any right to
relief jointly, severally, or in the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all
plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(1).
Rule 21 allows a district court to “sever any claim against a party,” even when that claim has
been properly joined. Fed. R. Civ. P. 21; see Tinsley v. Streich, 143 F. Supp. 3d 450, 462 (W.D. Va.
2015). “Courts typically use Federal Rule of Civil Procedure 20(a)(1)’s preconditions for permissive
joinder to evaluate whether severance is appropriate.” Allstate Ins. Co. v. Electrolux Home Prod., Inc.,
No. 1:16CV1946, 2016 WL 6995271, at *1 (N.D. Ohio Nov. 30, 2016). There is a presumption against
severance, and the party seeking severance must “show that (1) it will be severely prejudiced without
a separate trial; and (2) the issue to be severed is so ‘distinct and separable’ from the others that a trial
of that issue alone may proceed without injustice.” Equal Rights Ctr. v. Equity Residential, 483 F.
Supp. 2d 482, 489 (D. Md. 2007). To determine whether severance of claims is proper, courts consider:
(1) whether the issues sought to be tried separately are significantly different from one another; (2)
whether the separable issues require different witnesses and different documentary proof; (3) whether
the party opposing severance will be prejudiced if it is granted; and (4) whether the party requesting
severance will be prejudiced if the claims are not severed. Grayson Consulting, Inc. v. Cathcart, No.
2:07-CV-02992-DCN, 2014 WL 1512029, at *2 (D.S.C. Apr. 8, 2014) (quoting Equal Rights Ctr., 483
F. Supp. 2d at 489).
Initially, the Court notes that similar consolidated cases involving the same alleged design defect
are pending in other courts, that Defendant has moved to sever and dismiss the joined claims in each
case, and that all but one2 of the motions has been denied. See Allstate Ins. Co. v. Electrolux Home
Prods., Inc., No. 1:16-cv-09639, Doc. 23 (N.D. Ill. Mar. 31, 2017) (forty-six claims); Allstate Ins. Co.
v. Electrolux Home Prods., Inc., No. 16cv6804, Doc. 27 (S.D.N.Y. Dec. 5, 5016) (eighteen claims);
Allstate Ins. Co. v. Electrolux Home Prods., Inc., No. 1:16CV1946, 2016 WL 6995271 (N.D. Ohio Nov.
30, 2016) (six claims); Allstate Ins. Co. v. Electrolux Home Prods., Inc., No. CV 16-6514, Doc. 25
(C.D. Cal. Nov. 3, 2016) (twenty-four claims); Allstate Ins. Co. v. Electrolux Home Prods., Inc., No.
16-4276, Doc. 17 (E.D. Pa. Sept. 22, 2016) (nine claims); State Farm Fire & Cas. Co. v. Electrolux
Home Prod., Inc., No. 11 C 8946, 2012 WL 1287698 (N.D. Ill. Apr. 16, 2012) (210 claims). These
courts have reached similar conclusions and found claims regarding the same alleged design defect arise
from the same transaction or occurrence.3
Here, Defendant argues that it has manufactured over 2,000 different models of ball-hitch
clothes dryers since the 1990s, and that each dryer was separately installed and maintained. ECF No.
6-1 at 3-7. However, Plaintiffs’ allegations do not indicate the fires would have occurred in only certain
models or under certain conditions. Instead, the allegations are that the same design defect was
One motion is still pending in the District of Colorado. See Allstate Fire & Casualty Insurance Company
et al v. Electrolux Home Products, Inc., No. 1:16-cv-02080-PAB-STV, Doc. 11 (D. Colo. filed Sep. 13, 2016).
“[C]ourts generally construe the phrase same transaction or occurrence liberally insofar as claims arise from
the same transaction or occurrence if they have a logical relation to one another.” Tinsley, 143 F. Supp. 3d at 459
(internal quotation marks omitted). In the products liability context, other courts have ruled claims based on the same
alleged design defect constitute the same transaction or occurrence. See, e.g., Abraham v. Volkswagen of Am., Inc.,
795 F.2d 238, 251 (2d Cir. 1986) (“All plaintiffs now allege as the basis for their claims the purchase of a
Volkswagen Rabbit with a valve stem seal made of defective material that will cause it to harden and break over time.
W e think that amply satisfies the requirement of a series of logically related transactions.”); Atkinson v. Forest
Research Inst., Inc., No. 3:15-CV-09302, 2016 W L 1268281, at *4 (S.D.W . Va. Mar. 31, 2016) (“[T]he events
giving rise to Plaintiffs’ claims are logically related because each claim is based on the same allegedly defective
pharmaceutical design . . . .”);
involved in the models at issue here. The Court finds Plaintiffs’ five claims arise out of the same
transaction or occurrence because they involve the same alleged design defect in ball-hitch dryers
produced by Defendant. See, e.g., Allstate Ins. Co., No. 1:16-cv-09639, Doc. 23 at p. 6 (finding claims
related to forty-six different dryer fires alleging a common design defect arose from the same
transaction or occurrence); Allstate Ins. Co., 2016 WL 6995271, at *2-3 (same); State Farm, 2012 WL
1287698, at *5 (same).
Next, Defendant argues that although Plaintiffs’ five claims may share common issues of law,
there are “myriad factual differences between the five claims,” “which will require different witnesses
and evidence.” ECF No. 6-1 at 4-7. Defendant cites examples of such factual differences, contending
issues involving the installation, maintenance, and use of the particular dryer involved in each fire will
vary from claim to claim.4 Id. Although Plaintiffs’ five claims arise from separate fires, they all involve
the same alleged defective design present in dryer models manufactured by Defendant. Moreover,
Plaintiffs allege the same causes of action—strict liability and negligence—for all five claims. The fires
occurred in South Carolina, and the substantive law of South Carolina governs this diversity action.
Accordingly, the Court finds Plaintiffs’ five claims involve common questions of law and fact. See,
e.g., Allstate Ins. Co., No. 1:16-cv-09639, Doc. 23 at p. 6 (finding common questions of law and fact
existed because all claims were governed by the same state’s products liability law and involved the
issue of “whether the same ball-hitch design alleged in each claim was defective”); Allstate Ins. Co.,
2016 WL 6995271, at *3 (same).
Defendant further contends “[s]evering the claims early in the proceedings will facilitate judicial
In support of these contentions, Defendant submits a declaration from a product safety engineer (Peter A.
Silman), a report about clothes dryer fires issued by the Federal Emergency Management Agency, and a safety alert
issued by the Consumer Product Safety Commission. See ECF Nos. 6-2, 6-3, & 6-4.
economy.” ECF No. 6-1 at 8. The Court simply cannot agree with this contention. Splitting apart five
claims all involving the same alleged design defect does not promote judicial economy. The alleged
design defect implicates a common question of fact, and one round of discovery in a single case is more
efficient than five rounds of discovery in five separate cases. See, e.g., State Farm, 2012 WL 1287698,
at *6 (“An alleged common defect in all the dryers provides enough of a connection for the three State
Farm plaintiffs to proceed together at this stage of the lawsuit. Discovery related to the alleged design
defect will be common to all 210 claims.”).
Finally, Defendant argues that allowing the five claims to proceed to trial as a single action
would cause jury confusion and unfairly prejudice Defendant. ECF No. 6-1 at 7-8. Defendant’s
concern is premature at this early stage in the case, as such concerns are more appropriately addressed
after discovery and closer to trial pursuant to Rule 42(b). See Fed. R. Civ. P. 42(b) (“For convenience,
to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more
separate issues [or] claims . . . .” (emphasis added)); Allstate Ins. Co., No. 1:16-cv-09639, Doc. 23 at
p. 8 (“Electrolux’s concerns regarding potential unfair prejudice can also be addressed under Rule 42(b),
but the appropriate time to determine whether and how to proceed with separate trials under Rule 42(b)
is after the conclusion of discovery, when the degree of overlap among the various claims and the
potential for prejudice will be easier to assess.” (internal quotation marks omitted)).
For the foregoing reasons, the Court denies Defendant’s request to sever Plaintiffs’ five claims.5
Defendant further argues that if the Court grants severance, the Court should (1) dismiss the four claims that
do not satisfy the $75,000 amount-in-controversy requirement of 28 U.S.C. § 1332(a) and (2) transfer the remaining
claim to the Rock Hill Division of this Court. See ECF No. 6-1 at 10-14. Because the Court is denying Defendant’s
request for severance, the Court finds Defendant’s arguments regarding dismissal and transfer are moot and therefore
does not address them.
Defendant contends the Court should dismiss Plaintiffs’ claim for punitive damages pursuant
to Federal Rule of Procedure 12(b)(6). ECF No. 6-1 at 14.
When deciding a motion to dismiss made under Federal Rule of Civil Procedure 12(b)(6), the
district court must accept all well-pleaded facts alleged in the complaint as true and draw all reasonable
inferences in the plaintiff’s favor. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,
253 (4th Cir. 2009). A complaint must state a “‘plausible claim for relief’” to survive a 12(b)(6) motion
to dismiss. Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009)). The court will not dismiss the plaintiff’s complaint so long as it provides adequate
detail about the claims to show the plaintiff has a “more-than-conceivable chance of success on the
merits.” Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 396 (4th Cir. 2014) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Once a claim has been stated adequately, it
may be supported by showing any set of facts consistent with the allegations in the complaint.”
Twombly, 550 U.S. at 563. A complaint will survive a motion to dismiss if it contains “enough facts
to state a claim to relief that is plausible on its face.” Id. at 570.
While Defendant makes several arguments regarding punitive damages, one argument is
dispositive of this issue. Specifically, Defendant argues Plaintiffs cannot sue for punitive damages
because, as subrogees, their recovery is limited to the amount they paid their insureds. ECF No. 6-1 at
p. 11-12; ECF No. 9 at 7-8. Plaintiffs disagree and assert that as subrogees, they “step into the shoes
of” their insureds and can “assert any legal right possessed by [their] insured[s] arising from the covered
loss.” ECF No. 8 at 17-18.
Neither Defendant nor Plaintiffs have cited, and the Court has not located, a South Carolina case
addressing this precise issue.6 Thus, as a federal court sitting in diversity, the Court must predict how
the South Carolina Supreme Court would decide the issue. See Private Mortg. Inv. Servs., Inc. v. Hotel
& Club Assocs., Inc., 296 F.3d 308, 312 (4th Cir. 2002) (“As a federal court sitting in diversity, we have
an obligation to apply the jurisprudence of South Carolina’s highest court, the South Carolina Supreme
Court. But in a situation where the South Carolina Supreme Court has spoken neither directly nor
indirectly on the particular issue before us, we are called upon to predict how that court would rule if
presented with the issue.” (internal footnote and citations omitted)). “In predicting a ruling by the South
Carolina Supreme Court, [the Court] may also consider, inter alia: restatements of the law, treatises,
and well considered dicta,” id., “as well as the practices of other states.” St. Paul Fire & Marine Ins.
Co. v. Am. Int’l Specialty Lines Ins. Co., 365 F.3d 263, 272 (4th Cir. 2004) (internal quotation marks
Initially, the Court recognizes that under South Carolina law, “[w]hen an insurer pays its insured
for a loss resulting from the tortious conduct of a third party, the insurer is subrogated to the rights of
its insured against the third party.” Frank B. Hall & Co. of California v. Vic Bailey Lincoln-Mercury,
Inc., 298 S.C. 282, 284, 379 S.E.2d 892, 894 (1989) (citing Calvert Fire Ins. Co. v. James, 236 S.C.
431, 114 S.E.2d 832 (1960)). In Calvert, the South Carolina Supreme Court discussed an insurer’s right
of subrogation, stating:
Where the tortious conduct of a third person is the cause of a
loss covered by an insurance policy, the insurer, upon payment of
the loss, becomes subrogated pro tanto by operation of law to
whatever rights the insured may have against the wrongdoer.
Where the insurer has paid to the insured the entire loss, it
may bring action either in its own name or in that of the insured
No party has requested certification of this issue to the South Carolina Supreme Court.
against the tort-feasor whose wrongful act caused the loss, for in such
case the whole remedial right is vested in it.
236 S.C. at 435, 114 S.E.2d at 835 (internal citations omitted) (emphasis added). The Court takes
particular note of the dicta “pro tanto,” which means “[t]o that extent; for so much; as far as it goes.”
Black’s Law Dictionary (10th ed. 2014). Significantly, after outlining the above subrogation principles,
the court in Calvert stated, “Upon its payment to James [(the insured)] of his loss covered by its
collision policy, Calvert [(the insurer)] became subrogated, to the extent of that payment, to whatever
rights James had against Mattson [(the tortfeasor)] arising out of the collision that caused the loss.”7
236 S.C. at 436, 114 S.E.2d at 835 (emphasis added). Similarly, in Pringle v. Atlantic Coast Line
Railroad Co., the court stated “the Insurance Company is subrogated to the rights of the insured, to the
extent of the indemnity paid.” 212 S.C. 303, 310, 47 S.E.2d 722, 725 (1948) (emphasis added).
Consistent with the dicta in Calvert and Pringle, South Carolina Jurisprudence provides that
“[g]enerally, one who pays for damages for which a third-party is liable is subrogated to the extent of
the payment made against the third party.” 6 S.C. Jur. Compromise and Settlement § 27 (1991)
(emphasis added). Moreover, Couch on Insurance8 unambiguously states, “It is often said that punitive
damages are unavailable in claims brought by subrogation.” 16 Couch on Insurance 3d § 223:103.
Similarly, American Jurisprudence states, “The general rule is that a subrogee is entitled to indemnity
to the extent only of the money actually paid by him to discharge the obligation or the value of the
The Calvert court also cited other state cases recognizing an insurer could sue “the tort-feasor for recovery
of the amount that it had paid to the insured.” Id. at 437-38, 114 S.E.2d at 835-36 (citing Wolverine Ins. Co. v.
Klomparens, 263 N.W . 724 (Mich. 1935), and United Pac. Ins. Co. v. Schetky Equip. Co., 342 P.2d 766 (Or. 1959)).
The South Carolina Supreme Court frequently cites and relies upon Couch on Insurance, a comprehensive
treatise on insurance law. See, e.g., Narruhn v. Alea London Ltd., 404 S.C. 337, 344, 745 S.E.2d 90, 94 (2013); S.C.
Farm Bureau Mut. Ins. Co. v. Durham, 380 S.C. 506, 511, 671 S.E.2d 610, 613 (2009); Brown v. Allstate Ins. Co.,
344 S.C. 21, 25, 542 S.E.2d 723, 725 (2001).
property applied for that purpose. Thus, a subrogee cannot sue for punitive damages.” 73 Am. Jur. 2d
Subrogation § 66.
Finally, numerous cases in other jurisdictions recognize punitive damages are unavailable to a
subrogee. That is because “[t]he general rule in this country is that a subrogee is entitled to indemnity
to the extent only of the money actually paid by him.” Maryland Cas. Co. v. Brown, 321 F. Supp. 309,
312 (N.D. Ga. 1971) (finding the subrogee could not recover punitive damages). See, e.g., Am. Nat.
Fire Ins. Co. ex rel. Tabacalera Contreras Cigar Co. v. Yellow Freight Sys., Inc., 325 F.3d 924, 936
(7th Cir. 2003); Milan v. Kausch, 194 F.2d 263, 265 (6th Cir. 1952); La Reunion Aerienne v. Socialist
People’s Libyan Arab Jamahiriya, 477 F. Supp. 2d 131, 136 (D.D.C. 2007); Lawyers Title Ins. Corp.
v. United Am. Bank of Memphis, 21 F. Supp. 2d 785, 810 (W.D. Tenn. 1998); Lexington Ins. Co. v.
Baltimore Gas & Elec. Co., 979 F. Supp. 360, 362 (D. Md. 1997); Utica Mut. Ins. Co. v. Denwat Corp.,
778 F. Supp. 592, 593–94 (D. Conn. 1991); Sara Lee Corp. v. Homasote Co., 719 F. Supp. 417, 427
(D. Md. 1989); Colorado Farm Bureau Mut. Ins. Co. v. CAT Cont’l, Inc., 649 F. Supp. 49, 51–52 (D.
Colo. 1986); Employers Ins. of Wausau v. Dunaway, 626 F. Supp. 1144, 1146–47 (S.D. Miss. 1986);
Maryland Cas. Co., 321 F. Supp. at 311–12; Prudential Prop. & Cas. Co. v. Dow Chevrolet-Olds, Inc.,
10 S.W.3d 97, 101 (Tex. App. 1999); Bituminous Fire & Marine Ins. Co. v. Culligan Fyrprotexion,
Inc., 437 N.E.2d 1360, 1371 (Ind. Ct. App. 1982).9 In sum, the purpose of subrogation is to reimburse
But see Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 133 F. Supp. 2d 162, 176–78
(E.D.N.Y. 2001) (distinguishing other cases “involv[ing] single subrogation claims” and allowing a subrogee
insurer— a health insurance provider in a tobacco mass torts suit— to seek punitive damages because “many
individual claims would not [otherwise] be brought or would not be fully vindicated to cover the total cost of a
defendant’s delicts to society”). Plaintiffs cite Blue Cross & Blue Shield and argue that not allowing them to claim
punitive damages “would be to grant a windfall to Electrolux, simply because the property owner injured by
Electrolux’s defective dryer was adequately insured at the time of the fire.” ECF No. 8 at 18-19. Plaintiffs further
contend “the fact that Allstate did not personally own the property” should not be an “impediment to its ability to
assert punitive damages.” Id. at 19.
The Court does not have a copy of the insurance policies involved, nor is there any indication that the
insured policyholders’ right to seek punitive damages has been assigned to Plaintiffs (the insurers) or that such right
or indemnify, and an insurer-subrogee’s recovery is limited to the monetary amount actually paid.
Subrogation is generally a restitutionary measure, not a mechanism for a possible windfall or profit.
Based on the foregoing authorities and the particular pleadings and allegations in this case, the
Court predicts the South Carolina Supreme Court would follow the general rule and not permit insurersubrogees to recover punitive damages. Instead, Plaintiffs’ recovery is limited to the amount it paid the
insureds for their losses. Accordingly, the Court grants Defendant’s request to dismiss Plaintiffs’ claim
for punitive damages.
For the above reasons, the Court DENIES IN PART AND GRANTS IN PART Defendant’s
Motion to Sever, to Dismiss, and to Transfer Divisions [ECF No. 6].
IT IS SO ORDERED.
Florence, South Carolina
May 19, 2017
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
has in any way been extinguished or forfeited by the policyholders. Generally, “[a]n assignment is the act of
transferring to another all or part of one’s property, interest, or rights.” Moore v. Weinberg, 373 S.C. 209, 219, 644
S.E.2d 740, 745 (Ct. App. 2007), aff’d, 383 S.C. 583, 681 S.E.2d 875 (2009). “An assignment is distinguished from
a subrogation in that subrogation is an act of the law predicated on payment of the debt or claim, and operates only
to secure contribution and indemnity, whereas an assignment is an act of the parties that depends generally on
intention, and contemplates a continuation and transfer of the whole claim or debt.” 6A C.J.S. Assignments § 10.
“In essence, while subrogation is a designation of proceeds recovered from a wrongdoer, an assignment transfers the
entire cause of action to the insurer.” 16 Couch on Insurance 3d § 222:53. There is authority that an insurer can
claim punitive damages if the insured has assigned its rights to the insurer. See id. at § 223:103 (“[T]he difference
between being an assignee and a subrogee may be determinative. If the insurer were acting as a true assignee of the
claim, and the claim included allegations sufficient to support punitive damages, the decision could be different.”);
see, e.g., Stewart Title Guar. Co. v. Azar, 1993 W L 141797, at *9 (N.D. Ill. Apr. 30, 1993) (“Regardless of whether
it may or may not claim punitive damages as a subrogee, we find that Stewart [(the insurer)] may claim punitive
damages based on Stewart’s insureds’ assignment of their claims to Stewart.”). Again, Plaintiffs do not indicate they
have been assigned such a right.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?