This article is a companion piece to the video below

How do you hold an at-fault party accountable in a subrogation claim if that party is a cow? In this episode of our video series, On Subrogation, RG attorney Jason Sullivan discusses what happens when a livestock animal is involved in an automobile incident. 

How do Subrogation Claims for Property Damages Apply to Living Creatures?

Not all automobile subrogation claims involve two or more motor vehicles. If you live in an urban area, you might not consider the frequency of cases that involve a vehicle and a farm animal. However, this situation is commonplace, and each state has its own set of laws that apply in those cases. 

State livestock laws vary tremendously, so a subrogating insurance company handling a claim where, for example, an automobile collides with a cow or horse, will need to understand the state tort laws specific to livestock in that jurisdiction. This requires subrogation counsel educated in livestock laws in different states; namely, open range vs closed range states.

In this episode of On Subrogation: Livestock Liability in Open and Closed Range States, Jason explains the big picture of livestock law as it relates to subrogation law and procedure. Because our law firm is comprised of subrogation professionals licensed in dozens of state and federal jurisdictions, Rathbone Group’s knowledgeable team of subrogation attorneys and claims specialists is available to provide help navigating the legal ins and outs of a particular situation or issue where a subrogation case involves livestock.

State livestock laws fall into two categories: open range and closed range. A subrogating insurance company needs a legal team with an understanding of both types of range laws, as the outcome of the subrogation claim involving livestock is dependent on that knowledge.

No Need for Fences: Livestock Subrogation in Open Range States

Because livestock are considered property, when a cow or sheep causes a loss, it is the responsibility of the owner. Except when it isn’t. For at-fault party to be held liable for property damage in a subrogation case, there must be a breach of duty of care. This is nuanced in livestock laws, as well as other types of property damage claims, like tree falls, utility malfunctions, and fires. 

Generally, in open range states, livestock owners do not have a duty to fence in their animals and keep them off roadways. This is most common in Western states, such as Washington, Idaho, Oregon, Montana, and Texas. Without a legal duty to fence in animals, there can be no breach of duty when livestock causes an injury. 

However, open range states still place limitations on where livestock are permitted to roam. Notably, most open range states require livestock owners to keep their animals off state and federal highways. Furthermore, many of these states have open range exceptions in specified cities, counties, or other predetermined areas. 

Exceptions to Open Range Rules: Livestock Subrogation in Texas

For example, the state of Texas has 254 counties, but fewer than 10% of those counties are pure open range. These exceptions, called stock laws, create a legal duty for livestock owners to fence in their animals as specified by those laws. Many western states call these “Herd Districts,” and owners of animals that cause tortious injury in these areas have legal exposure for the damage their livestock cause.

Even in an open range state, a subrogation handler will want to carefully analyze the legal duties of a tortfeasor whose livestock have caused an injury or accident. Primarily, incidents on interstate highways and major county roads are likely to have state laws that address liability. In addition, counsel handling a subrogation case should investigate whether the county in question has passed local laws creating a legal duty to fence the animal at issue.

Duty to Fence: Livestock Subrogation in Closed Range States

For the purposes of this article, closed range states include states that have changed from the common law and have eliminated open range rules. This means that animal owners have a duty to confine their livestock. It will also include those portions of open range states that have stock laws or herd districts.

In a closed range area, the livestock owner has a duty to fence in the animal. Failure to adequately confine the livestock can lead to the kind tort liability that negligence law addresses. In these areas, livestock owners have a duty to adequately confine livestock as a reasonably prudent person would under like circumstances. Where an animal causes injury as a result of a breach of duty, liability for the injury rests with the livestock owner.

Case Study on Subrogating in Closed Range States: Kansas Livestock Laws

Kansas provides an example of a state that has fairly standard laws when it comes to this kind of liability. First, Kansas statutorily abolished the Common Law of open range and requires that owners keep their animals off the roadway. Second, Kansas has not accepted Res Ipsa Loquitor (the thing speaks for itself) in livestock cases. Res Ipsa Loquitor in a livestock case would mean that the Court will presume the owner was negligent solely on the basis that the animal was in the roadway. 

Kansas has specifically ruled that there is no such presumption, and the Plaintiff has the burden of proving that the livestock owner was actually negligent. In these states, therefore, standard negligence analysis arises from accidents or injuries caused by livestock. The Plaintiff must prove that the animal was unattended because the owner failed to exercise due care. 

This becomes a highly fact-specific inquiry that may involve expert witnesses. A strategic approach to subrogating these complicated Kansas livestock claims is key to holding a negligent owner accountable for the damage their animal caused.

Common Factors Courts Consider when Investigating Livestock in a Subrogation Claim

Determining the viability of a loss claim requires an ability to understand the point of view of the court in which the subrogation case is brought. Courts will focus on factors such as:

  1. What type of animal?
  2. What is the nature of the animal?
  3. What type of fencing?
  4. What was the condition of the fencing?
  5. How often did the owner check the fence condition?
  6. Was there any intervening force (wild animal scare livestock, act of god, third party)?
  7. Was the owner on notice of this event?
  8. Was there a prior loss that the owner had knowledge about?

Livestock Liability and the Importance of Robust Subrogation Investigations

A subrogation investigation into events surrounding how an animal found its way onto the road is crucial for determining whether or not there is a valid cause of action. For an insurance company pursuing a subrogation claim, when the company or the insured is a member of the community where an injury occurred, it may be easier to gather this information. 

However, if an insured client is merely passing through a territory and lacks familiarity with the owners, prior events, or required standards for the diligent confinement of animals, the ability to obtain the information needed to assess the strength of the claim can require effort and expertise.

In the context of subrogation, some of the most complex cases involve multiple parties. For instance, the animal may reside on land owned by an investor who is absent and never sets foot on the property. The investor may lease the land to a rancher, who may use the land for some of their own livestock and they may also maintain the land for several other livestock owners. 

Multiple questions then arise: Who owned the cow at issue? Who had a duty to maintain fences? Where the fences maintained? Does the absentee land owner have any liability? Navigating these cases takes in-depth subrogation investigation and professionals adept at contract and lease language.

Initial Checklist for Filing a Subrogation Claim Involving Livestock

Subrogating insurance companies may want to implement this checklist at the outset of an investigation into a livestock vs automobile case:

  1. Where did the loss occur? Open range or closed range?
  2. What type of animal was involved?
  3. Who owned the land?
  4. Who owned the livestock?
  5. How did the animal escape?
  6. Could a reasonably prudent owner have prevented the escape?
  7. Did the owner know of this escape?
  8. Did the owner know of other similar escapes?
  9. Would a reasonably prudent owner have been able to recapture the animals?
  10. Are there any third-parties that might be responsible?

Skilled Subrogation Counsel can Help You Jump the Fence to Recovery

Proper case management of a subrogation claim where damages were caused by livestock is vital to achieving maximum recovery, especially in more difficult cases (re: open range jurisdictions). Insurance companies seeking recovery via subrogation stand to benefit from the guidance of subrogation specialists and attorneys familiar with livestock laws in the particular jurisdiction of the claim.

For more on this and other important subrogation topics, visit our YouTube channel and podcast library for more episodes of our informational series, On Subrogation. Curious about a certain subject in insurance law we haven’t yet covered? Email us at [email protected] to see your question featured in a future episode.