This article is a companion piece to the video

Not all automobile subrogation claims involve two or more motor vehicles. If you live in a urban area you might not consider the frequency of cases that involve a vehicle and a farm animal. However, this situation is common place and each state has its own set of laws that apply in those cases. The different state 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. The aim of this blog post is to explain the big picture of livestock law as it relates to subrogation. Rathbone Group’s team 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 claim is dependent on that knowledge.

Livestock Subrogation in Open Range States

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. 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, a subrogation handler will want to investigate whether the county in question has passed local laws creating a legal duty to fence the animal at issue.

Closed Range States Livestock Subrogation

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.

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.

Common Factors Courts Consider when Investigating Livestock:

  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?

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 handling 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 subrogation context, 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 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?

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?