In the above episode of Rathbone Group’s informational subrogation podcast and video series, On Subrogation: Proving Your Subrogation Case at Trial, RG partner and attorney Jason Sullivan discusses the nuances of meeting the burden of proof at the trial phase of a subrogation action. 

If alternate routes to resolving your subrogation lawsuit have failed, litigating the matter may be your only option. When taking a subrogation case to trial, counsel managing the dispute must meet a certain burden of proof to convince the court that they deserve to recover their loss. Specifically, burden of proof refers to:

The amount of evidence that must be put forth to convince the judge or the jury that your case has merits and that the facts are as you say they are.

Burden of proof differs depending on the type of court in which the case is being heard. For instance, in criminal court, you must convince the judge or jury beyond a reasonable doubt. They have to be 99% sure the facts are as you say they are.

Civil court, where subrogation cases are heard, has a lower bar, setting burden of proof at “a preponderance of evidence,” which is legalese for “more likely than not”. The court just needs to be pretty sure the facts are as they say you are.

So, how does subrogating counsel present a preponderance of evidence to indicate that tortious behavior led to their client’s losses?

Best Practices for Proving Your Subrogation Case

In any subrogation tort claim, your elements of the subrogation action must prove 4 things:

  1. The at-fault party had a duty.
  2. The at-fault party breached that care of duty.
  3. That breach of duty caused the loss incident.
  4. Damages exist as they are totaled in the claim.

If the burden of proof is met, the defense has an opportunity to rebut the evidence and try to convince the court that their version of events is more likely than not.

Jason poses a hypothetical to illustrate, using a typical auto subrogation scenario where there is a collision caused by a red light/green light incident. For the plaintiff to convince the court that the defendant acted negligently, subrogating counsel must prove that:

  • There is an intersection.
  • It is governed by a traffic light.
  • The light was red at the time of the incident.
  1. Duty: The defendant has a duty to abide by traffic laws.
  2. Breach: The defendant breached their care of duty by running the red light.
  3. Cause: Running the red light resulted in the collision that caused the incident of loss.
  4. Damage: Insured’s vehicle was damaged and/or insured was injured.

If you can prove each of these things, you will meet the preponderance of evidence. However, the defendant will then have the chance to make their case. If they can make it seem like it was more likely than not that the light was actually green at the time of the incident, they will meet the preponderance of evidence.

Or, they may try a different route: an affirmative defense. 

Being Prepared: Common Affirmative Defenses Used at Subrogation Trials

An affirmative defense is defined as something that is outside of the plaintiff’s subrogation claim that, if true, means that the defendant should win the case. An affirmative defense changes the responsibility for burden of proof. Jason gives examples of the two most commonly-asserted affirmative defenses in subrogation law:

  • Statute of limitations: A defendant can, without admission, accept your argument as true, but assert that the statute of limitations was expired before the subrogation claim was filed. In this defense, the defendant bears the burden of proof, as they must prove their timeline. 

(Watch this episode of our On Subrogation series for more information on statute of limitations as it applies to the subrogation process.)

  • Court satisfaction: A defendant can claim that they have already paid out the claim and therefore cannot be pursued for additional recovery. In this case, the burden of proof would still lie with the plaintiff, who must prove that the defendant has not satisfied the order.

It is important to note that in affirmative defense procedures, the plaintiff still has an opportunity to respond and rebut the defendant’s claims.

To learn more about this and other important topics in insurance subrogation, visit our YouTube channel and podcast library for more episodes of our On Subrogation series. If there’s a topic you can’t find that you would like more information on, email us at [email protected] to see one of our talented attorneys break it down on an episode of On Subrogation.