In the above episode of On Subrogation: Sudden Emergency Defense, insurance attorney Jason Sullivan talks about the Sudden Emergency Doctrine as it applies to contributory and comparative fault, as well as defines what a “sudden emergency” is.
This article also includes content from our subrogation podcast episode Refresh: Sudden Emergency, where RG attorneys Rebecca Wright and Steven Alsip unpack this important subrogation topic in more detail.
For more On Subrogation podcast episodes, visit our podcast library.
Sudden Emergency or Convenient Excuse? The Emergency Response Defense
A sudden emergency defense is accepted when a subrogation attorney can prove that “through no fault at all of the defendant (the insured), there was a sudden and unexpected situation that caused the loss”. These three factors are all-important:
- The event was sudden and unexpected.
- ex. A deer jumps in front of a car.
- The defendant made no contribution to the emergency.
- ex. A driver who’s speeding on icy roads cannot claim sudden emergency if they end up hitting another car.
- The defendant’s response to the emergency was reasonable.
- ex. Swerving to avoid hitting a pedestrian may be reasonable, but turning into oncoming traffic to avoid the pedestrian may not be.
The reason states began to adopt sudden emergency defenses is because, under contributory fault, if the insured was even 1% responsible for the incident, they were barred from seeking any recovery. Courts realized this may not always be a fair result since well-meaning people can make the wrong decision in an emergency situation and end up contributing to the resulting damages. Consider the following scenario:
Your insured was cut off by a car on the highway, giving them less than one moment to decide whether to hit the car, swerve to the left or right, or slam the brakes. The other driver’s carrier refuses your subrogation demand. This case occurs in a state that uses contributory fault.
The motorist who cut your insured off will claim that, regardless of what choice was made, it wasn’t completely right. Since contributory fault applies, even though the other motorist’s actions were tortious, you cannot pursue subrogation recovery.
In this case, any of those actions were a reasonable choice and your insured was not the cause of the emergency. Without a sudden emergency defense, none of that matters. Is that fair? Sudden emergency doctrines was intended to protect people in situations where there was no other choice but to react on impulse.
State Subrogation Laws Vary on Sudden Emergencies
The sudden emergency defense is invoked when the defendant their actions were not a result of negligence, but an unavoidable response to an emergency situation. This doctrine shifts the burden of proof in a subrogation lawsuit to the defendant, who must now prove there was an emergency and their response was reasonable.
Courts often play a significant role in deciding whether the doctrine applies to a case, and we see this reflected in the different ways states use or modify the doctrine:
1. No Sudden Emergency Defense Instructions
As states have moved towards comparative fault, the sudden emergency doctrine has taken a back seat in many jurisdictions. California rejects the doctrine as redundant, citing it overlaps with the reasonable person standard.
Montana and Missouri no longer give sudden emergency directions to juries. They have found it is confusing, and that the jury should make the decision based on negligence principles without further instruction needed.
2. Sudden Emergency Defense Requires Review
Other states limit sudden emergency jury instructions on a case-by-case basis. And still, other states still give sudden emergency instructions. These states find that, even though they are looking at comparative fault, a sudden emergency still contributes to determining total fault in an insurance recovery lawsuit. New York, for instance, has limited the defense’s application to medical emergencies.
3. Sudden Emergency Doctrine Always Applicable
Some states accept the doctrine as viable in subrogation recovery claims, including much of the Midwest and some states in the South. They are most commonly applied in insurance lawsuits for automotive accidents.
Sudden emergency defenses and differences in comparative fault vary throughout the country. Insurance carriers need subrogation law firms with attorneys that work nationwide and understand the nuances of law in any given state.
Was it Really a Sudden Emergency? Determining the Veracity of a Claim
So, how does an attorney subrogating an auto insurance dispute proceed when faced with a case where the sudden emergency defense applies?
- Was the situation sudden?
In Pennsylvania, suddenness is determined by whether or not an object was in motion. If an object is stationary, the driver has a duty of care to be aware of what is ahead and avoid hitting it. Contrarily, if an object is thrown into a driver’s path, a sudden emergency exists. This does not apply in every state, but provides insight into how courts break things down.
- Was the situation unexpected?
There are certain situations where a reasonable driver should expect that something or someone may enter the road suddenly. Consider places like school zones, residential neighborhoods and active construction areas.
- Was the situation the fault of the party themselves?
If your insured was driving 45 mph in a 15 mph residential neighborhood, a child runs out into the street in front of them, and in response your insured swerves to avoid them, hitting a person’s house, a sudden emergency defense is not viable. It is the fault of the insured: they were speeding, so they were the reason the sudden emergency existed.
Contention Around the Sudden Emergency Defense
Best practices for a subrogation team faced with a sudden emergency claim? Always be very skeptical of sudden emergency defenses. Was there anything that party did to create the circumstances that created the emergency? If not, was it really sudden and unexpected? Would a reasonable driver have expected that situation to happen at that time or place?
Let’s look at a few examples and critiques of the doctrine:
Auto Subrogation
A driver swerves to avoid debris in the road but ends up crashing into another vehicle. They may claim the debris was a sudden and unexpected event and that their response was reasonable. Courts will ask whether the driver should have seen the debris ahead of time. If a reasonable person would have seen the debris ahead of time, there was no emergency.
Medical Emergencies
A driver causes an accident but cites they had a heart attack and that’s what caused them to swerve into the other driver. Courts will look at medical records – did the driver receive diagnosis and treatment for a cardiac event at the accident? Was there a pre-existing condition they weren’t managing properly? If the driver should have known not to drive due to their pre-existing medical condition, the emergency doctrine may not apply.
Natural Disasters
A sudden hailstorm causes a driver to lose control of their car, causing an accident. They may raise the sudden emergency defense, citing the hailstorm was an unexpected, sudden event over which they had no influence. Courts might ask questions like whether the driver had time before the accident to pull to the side of the road and stop driving after the hail started. If a reasonable person would have safely stopped the car instead of driving, the emergency doctrine might not apply.
Questions & Controversy
We see how the definition of “sudden emergency” and “reasonable” can be unclear when arguing liability in a subrogation case. Current discussions on the sudden emergency doctrine include:
- Critics of the doctrine cite its potential for abuse. The concern is that defendants will take advantage of it to avoid responsibility in situations where there was true negligence.
- There is debate on whether sudden emergency is even necessary. We saw that California feels it’s redundant to the reasonable person rule, and others cite its overlap with the negligence law, which already accounts for emergency responses.
- Concerns about equity remain. Victims of tortious behavior may feel a defendant got absolved of responsibility unfairly. Defendants may feel like they were punished for situations that were out of their control.
Best Practices for Subrogating with a Potential Emergency Defense
The Sudden Emergency Defense is a key legal concept encountered often in auto, personal injury and PIP subrogation. But its application depends on the jurisdiction’s insurance laws and the facts of the case. A depth of experience in a specific state’s subrogation environment will maximize recovery of subrogation claims and minimize the cost of pursuit at the same time. Strategic subrogation counsel can find recovery potential even in complex cases that appear to have clear cut defenses.
Claims adjusters and subrogation lawyers managing a case involving an emergency response must carefully assess the possibility of a sudden emergency defense being raised. Swift, thorough subrogation investigations can streamline pursuit of recovery.
For more on this and dozens of other topics on the right of subrogation, insurance law, and the process of pursuing recovery, visit Rathbone Group’s podcast library and YouTube channel for more episodes of On Subrogation. Have a subject you would like to know more about that we haven’t yet discussed? Email us at video@rathbonegroup.com to see your question answered on a future episode.