We have all seen the Herculean deeds of a superhero on television or in the movies. They knock over buildings, use buses as weapons and generally cause super-sized amounts of property damage. Have you ever wondered who pays for the property damages left in the wake of a superhero? With no superhero exclusion, a property policy might just cover these situations. So, if the insurer pays for the damage caused by the actions of a superhero, is there a path for subrogation recovery? Let’s dive into that world and find out.
Chapter 1 – Origins of The Flame
John Smith was your average, hard-working firefighter until he gained his superhuman powers. One dark and stormy evening, while fighting a fire in a genetics lab in Subro City, John got trapped inside the burning building. When he attempted to use a fire extinguisher to escape the burning lab, an explosion occurred. The explosion somehow caused the genetic material and the contents of the fire extinguisher to combine at an atomic level. The genetically enhanced, fire-retardant mixture instantly evaporated John’s turnout gear, but at the same time gave him fire resistant skin along with superhuman speed and strength. His trusted axe was also affected, and became indestructible and able to be thrown for miles with perfect accuracy. With the goal of helping the public and putting his powers to good use, John thereafter took on the superhero persona of The Flame, and his always trustworthy axe became known as “Ignitor.” But, it never occurred to The Flame that lawsuits might follow his heroic efforts when there was collateral damage.
Chapter 2 – The Incident
Some years after The Flame had saved hundreds of lives, he was asked to join Subro City’s superhero task force, known as the Super Uncommon Brotherhood of Rescuers Organization (SUBRO). A few weeks after joining SUBRO, the police used their Flame Signal, a red glowing light in the night sky in the shape of a flame, to call upon The Flame to assist with a rescue at a fire in a downtown skyscraper. Upon arriving at the fire scene, The Flame realized that the path for fire department response personnel was blocked by some fallen debris. He called on his axe, Ignitor, to clear the debris by throwing it with the force of 10,000 fire engines. The Flame threw Ignitor with the requisite force to only clear a path but something went wrong. After the path was cleared, Ignitor continued to travel at an alarming pace and with such force that it eventually collided with and destroyed the adjacent Subro City Commerce Center, causing millions of dollars in property damages. Luckily, it was nighttime, the stores were closed and the area had been evacuated already and only property was damaged by Ignitor’s errant path.
Chapter 3 – Subrogation Recovery Superpowers
Many times subrogation is not obvious. Focusing on the direct cause of the damages can often lead to a dead end regarding recovery. A lawsuit against a superhero firefighter like The Flame would certainly have its practical difficulties. He has no insurance, no money and how would you find his address for service of process? But, don’t be too myopic when looking at subrogation potential. Don’t just look at the direct cause, but rather examine the indirect causes. Remember, to be liable in nearly all jurisdictions a defendant need not be the sole cause of the damages; just a substantial factor in causing the damages. A substantial factor has been likened to a drop of dye in a glass of water that colored all the water. It was only a drop, but was a substantial factor in coloring the water. So, broaden your mind. For example: What caused the fire at the skyscraper to which any governmental or superhero response was necessary in the first place? If the response to the distress was reasonable under the circumstances, then damages caused thereby could be attributable to the initial tortfeasor as such a response would be foreseen. Think of water damage to a nearby structure when the fire department uses water to extinguish a house fire. If the response is unreasonable, consider whether the government entity acted appropriately in its response. Did they train The Flame on emergency response, and if not, then why not? Did the government instruct The Flame on emergency response, and if so, how did it relate to this matter? Was it reasonable to ask a genetically altered superhero to assist at all? Under certain circumstances, the governmental agency can be held liable for actions of responders. This approach will of course raise issues of governmental immunity, short notice and statute of limitations deadlines, but it should be examined.
What is more, perhaps we should ask why did a super-accurate axe like Ignitor take an errant path? Don’t focus on the thrower if he is not a viable target; examine what was thrown and the possibility of a contractor claim or product liability. Did Ignitor have issues in its service or maintenance history that could have contributed to the problem. Were there any defective parts to the Ignitor?
Chapter 4 – The Resolution
Although the Flame was the obvious cause of the damages, the subrogation attorneys and experts hired by the insurer for the damaged Subro City Commerce Center realized that they needed to dig deeper. The initial fire was set by a super villain who was banished to another dimension that was not a signatory to the Hague Convention on Service of Process Abroad and does not enforce U.S. judgments – so no luck there. The Flame was a properly trained firefighter before he became a superhero, and was properly certified to respond to the fire. The Ignitor was well-maintained and kept in a hermetically sealed carrying case. However, they found that the grip on Ignitor’s handle was defective, with a microscopic tear that had drastic consequences. The Flame fully cooperated with the subrogation attorneys and his experts, and a recovery was made against the grip manufacturer and the last company that had serviced and approved the grip. So, if your subrogation attorneys and other vendors are willing to make Herculean efforts of their own, subrogation would be possible even when the damage is caused by a superhero.