Kate Crouch Prevails On A Motion To Dismiss A Property Damage Subrogation Case Under A Waiver Of Subrogation Argument

An insurance company filed a property damage subrogation action against our client, a concrete subcontractor, seeking to recover payments it made on behalf of its insured as a result of damage caused to the heating system of a private home during an extensive landscaping/hardscaping project. Plaintiff’s insured was the general contractor and subcontracted with our client to install foundations. While our client knew about a web of underground geothermal tubes, it nevertheless struck one and crippled the home’s heating system.

While our liability defense was tenuous, a detailed analysis of the contracts revealed a broad waiver of subrogation clause in the master contract between Plaintiff’s insured and the homeowner that might extend to subcontractors if the loss was covered by insurance. Kate Crouch took the position that because Plaintiff paid the claim, the loss was necessarily covered by insurance triggering the waiver, and as a result, the subrogation claim was barred. After a nominal settlement offer was rebuffed by an overconfident Plaintiff’s counsel, we filed a motion to dismiss and persuaded the court that the waiver of subrogation was effective as to our client. The case was promptly dismissed with prejudice without further proceedings.