Viewpoint: Keeping Your Cases Moving During the COVID-19 Crisis

By James T. Busenlener | March 30, 2020

Many subrogation professionals will find themselves working from home in the near future. While much can be accomplished from a computer keyboard, there are certain activities essential to investigating and litigating subrogation files which are going to mandate a creative approach. The purpose of this article is to highlight some areas that subrogation professionals need to consider, as well as some possible solutions.

Subrogation Investigation And Use Of Experts

With many states and municipalities restricting transportation, it is going to be very difficult for a period of time for experts to conduct on site subrogation inspections and investigations. If you have a loss which requires an immediate inspection, such as a fire loss, you usually want to get an expert to the site immediately. Many areas of the country remain accessible, but that situation changes by day and even by the hour, so don’t delay. If you cannot find an expert, or the area of the loss is inaccessible, try to preserve as much information as possible about the loss until you can get someone to the site. Get any person who is available at the site, such as the insured, to take as many photographs as possible and take possession of any evidence which may later prove to be the cause of loss. In a normal situation, you would want to have the area of the loss inspected before moving anything.

However, these are not normal times. Rather than leaving the accident scene for a month or more, hoping that it remains unaltered, you should have the insured take as many pictures as possible to document the scene. Of particular importance are pictures of any equipment, such as a space heater, that may be in the origin area. Take pictures before the scene is altered and have the insured take possession of and safely store any equipment or product that is in the origin area that could have contributed to the loss.

Court System

Already, e-mails are flooding lawyers’ inboxes, notifying them that courts are restricting access to the courthouses and cancelling hearings and trials. It will take longer to move cases through the court system. Many courts, however, will maintain the ability to electronically file. Additionally, it is very possible that statute of limitations will be extended, should filing be disrupted. We saw this during Hurricane Katrina, when courts in the affected areas were inaccessible, and statutes of limitations were extended for several months. Texas has already made provisions for state courts to elect to suspend its statute of limitations for a period of 30 days after the Governor’s State of Disaster is lifted. See HERE for copy of the Texas Supreme Court’s First Emergency Order Regarding the COVID-19 State of Disaster.

Of course, you don’t want to count on extensions of statute of limitations. Therefore, it is prudent to go through your files and identify cases with statute of limitations coming up in the next six months. We recommend that you move those cases to your subrogation counsel as soon as possible, as the ability to file in the future is uncertain. Another good reason to send cases to subrogation counsel earlier is that it will simply take longer to handle cases. Opposing counsel and third-party insurance adjusters may still be working from home, but communications may be delayed and take longer. Once the courts reopen, you can expect a flood of activity.

About James T. Busenlener

Busenlener is an insurance trial lawyer and managing partner of Matthiesen, Wickert & Lehrer, S.C.’s New Orleans branch office. He is licensed to practice law in Louisiana, Texas, and Pennsylvania, as well as numerous federal district and appellate courts. He can be reached at

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