1. NOT AS EASY AS IT LOOKS SUBROGATION IN AUTO CASES

2. STATUTE OF LIMITATION DETERMINE VEHICLE STATUS IDENTIFY CAUSATION ISSUES IDENTIFY LIABILITY ISSUES POTENTIALLY LIABLE PARTIES INSPECTION NOTICE MOTOR VEHICLE DAMAGE SUBROGATION CHECKLIST: Solidify your case

3. Select Your Appropriate Forum Federal Court—Diversity Jurisdiction State District Court State County Court Arbitration Forum

4. Tough Sledding Reported cases Jan. 2008 – Present  53% Plaintiff verdicts  47% Defense verdicts

5. INITIAL EVALUATION: Understand your Opponent Impression on the Jury  Individual or corporate entity?  Auto accident or Product Liability claim Manufacturer? Product liability ?

6. Avoid the “VIC Effect” How does a jury view an insurer party with a subrogation interest?

7. But, sometimes individual defendant is OK!

8. Special Valuation Issues Avoid “Betterment”  appropriate but fair depreciation;  identify wear items;  put policy holder in previous financial condition; Unusual or “one-off” vehicles  No “like kind” vehicles for comparison;  No NADA or other “official” information available;

9. Example: Food Truck Exhaustive list of equipment Value of kitchen appliances/new/used Receipts Manufacturer/Fabricator Time vs. Miles Business loss Cost of repair vs. total loss—time/materials

10. Example: Custom Chopper Receipts Manufacture data on component cost List of components Cost of replacement include time value of assembly? Value of work of art/paint job-Colongalo

11. Preservation/Spoliation Spoliation—A Game Changers vs. Insured accommodation  RV Scenerio Avoid Spoliation by:  proper notification to all potentially liable or interested parties;  Evidence Storage/movement/inspection protocol: ASTM standards;  Evidence preservation: ASTM standards  Case Study--Spoliation

12. ASTM E8860-07 (Examining and Preparing Evidence) E860-07: 3.1.2 Spoliation of Evidence—the loss, destruction, or material alteration of an object or document that is evidence or potential evidence in a legal proceeding by one who has the responsibility for its preservation. Spoliation of evidence may occur when the movement, change or destruction of evidence, or alteration of the scene significantly impairs the opportunity of other interested parties to obtain the same evidentiary value from the evidence as did any investigator. (Emphasis Added)

13. Expert Testimony, Pt. 1./Weather Loss

14. ASTM #1188-05 (Collection/Preservation) 4.2 Physical Evidence—Obtain and preserve physical items as early as possible. Plan the investigation to protect physical evidence significant to the incident. The plan should consider the possibility of identity loss, physical loss, deterioration or destruction of information due to environmental effect, or recovery and collection activities. When physical items cannot be preserved in the found state, document it. (Emphasis Added)

15. Expert Testimony, pt 2./Labeling/Custody

16. ASTM E1459-92 (Labeling) 2. Summary of Practice Any individual item of evidence is marked with a numeric or alphanumeric designation that is unique and allows the origin of the item to be unequivocally established. 3. Significance and Use 3.1 By following the procedures specified in this guide, any physical evidence will have a traceable audit trail by which the origin, past history, treatment, and analysis of the item can be determined. 3.2 By following these procedures, the chain of custody of any item of physical evidence will be maintained and documented.

17. Spoliation: Consequences Aloi v. Union Pacific R.R. 129 P.3d 999 (2006) “We hold that the trial court did not abuse its discretion by providing the jury with an adverse inference instruction as a sanction for the spoliation of evidence where it found that UP willfully destroyed relevant evidence, which otherwise naturally would have been introduced at trial. Second, we hold that the trial court did not abuse its discretion by repeating the adverse inference instruction because the trial court addressed appropriate objections and articulated the reasoning for its decision; nor did the trial court abuse its discretion by interrupting the cross examination because it acted to remedy prejudice and as a result did not depart from the required impartiality so as to deny the defendant a fair trial."