This article is a companion piece to the Sudden Emergency podcast episode of Rathbone Group’s On Subrogation series, a free educational resource for insurance professionals, where our attorneys discuss the nuances of the subrogation process. In this episode, 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.

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:

  1. The situation was sudden.
  2. The situation was unexpected.
  3. The defendant had no hand in creating the sudden and unexpected situation.

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. For instance, say 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 motorist who cut your insured off will claim that, regardless of what choice was made, it wasn’t completely right. Since it is contributory fault, even though the other motorist’s actions were tortious, your insured cannot pursue recovery. Sudden emergency doctrines arose across the country protecting people in situations where there was no other choice but to react on impulse. 

As states have moved towards comparative fault, the sudden emergency doctrine has taken a back seat in many jurisdictions. Montana and Missouri, for instance, no longer give sudden emergency directions to juries. They have found it is confusing, and that the jury should make the decision based through negligence principles without further instruction needed.

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.

Sudden emergency defenses and differences in comparative fault throughout the country are more of the many reasons insurance carriers need subrogation law firms that work nationwide and understand the nuances of law in a 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?

  1. 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.

  1. 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.

  1. 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.

Our last piece of advice 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?

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 [email protected] to see your question answered on a future episode.