Lawsuits filed by some of the nation’s largest insurance companies have opened a new front in the litigation against Toyota Motor Corp. over claims that defects in its vehicles caused them to suddenly accelerate out of control.
Separate suits were filed on Dec. 30 by Fireman’s Fund Insurance Co., Motorists Mutual Insurance Co. and Ameriprise Insurance Co. The cases collectively seek nearly $200,000 — for starters — in damages, alleging that Toyota failed to warn about vehicle defects that caused 14 accidents for which the insurance carriers were forced to compensate claimants. The suits came three months after Allstate Insurance Group sued Toyota for $3 million on similar ground.
“That’s going to represent a small fraction of the claims they’d likely be aware of,” Timothy Blood, managing partner of San Diego’s Blood Hurst & O’Reardon, said of the insurers. He serves on the plaintiffs’ steering committee of the California state court cases against Toyota pending in Los Angeles County, Calif., Superior Court. “This may well be the beginning.”
Nearly 300 lawsuits are pending against Toyota, which has recalled about 10 million vehicles due to defective floor mats and accelerator pedals. Toyota has denied that any defect exists in its electronic throttle control system.
Most of the suits are combined in multidistrict litigation before U.S. District Judge James Selna in Santa Ana, Calif. Those suits have been brought on behalf of both consumers seeking economic damages and individuals who died or were injured when their Toyota vehicles allegedly accelerated out of control. Dozens of additional suits are pending in state courts in California, Texas and New York.
The insurance suits were filed in Los Angeles County Superior Court. One suit was filed by Motorists Mutual and its subsidiary American Hardware Mutual Insurance Co., while another was filed by Ameriprise and its subsidiary IDS Property and Casualty Insurance Co. A third suit was filed by Fireman’s Fund and its subsidiaries, National Surety Corp. and American Automobile Insurance Co.
The suits allege strict products liability, breach of implied and express warranties, fraudulent concealment and negligent misrepresentation. In addition to Toyota’s failure to warn, the suits allege that the automaker should have installed a brake override system that would have prevented its vehicles from accelerating out of control.
The insurance suits are referred to as “subrogation” claims, or those brought by an insurance firm for reimbursement of a portion of the costs the carrier paid on accident claims. The cases are common in large disasters involving liability.
“If you drive a car, and you have an accident with the car, and you hit somebody or hit something, you go to your auto insurer and they have to pay,” said Mark Bunim, a former insurance litigator who is now managing director of Case Closure LLC, a New York-based mediation and arbitration firm. “They then say, ‘Wait a second, we’ve got $500 million in claims involving Toyotas, and now we’ve learned the Toyota was or may have been defective. Let’s go sue Toyota.’ ”
Blood figures there was a “good chance” that the insurance suits would be folded into the California cases, which are being handled as a Judicial Council Coordinated Proceeding before Los Angeles County Superior Court Judge Anthony Mohr. “It’s all going to be part of the same mix,” he said.
He also predicted that more cases would be filed, noting that several major carriers such as State Farm Mutual Automobile Insurance Co. and Geico Corp. have yet to file suits against Toyota.
The suits cite Safety Research & Strategies Inc., an auto consulting group in Rehoboth, Mass., which estimates that sudden-acceleration incidents in Toyota vehicles have accounted for at least 725 crashes, 304 injuries and 18 deaths.
The insurance suits represent a new headache for Toyota, which has moved to resolve some claims. On Dec. 20, Toyota agreed to pay more than $32 million in civil penalties — the maximum allowable — to resolve an investigation by the National Highway Traffic Safety Administration alleging that it failed to comply with governmental reporting requirements related to its safety defects. The fines are in addition to the $16 million Toyota agreed to pay for failing to timely notify the safety administration about its defects.
Toyota agreed to pay $10 million to settle a lawsuit filed by the family of Mark Saylor, the California Highway Patrol officer who was killed, along with three other passengers, when his rented Lexus crashed on a highway near San Diego.
Most subrogation cases end up settling, Bunim said. In the Toyota situation, the insurance carriers could have the “upper hand” in potential settlement negotiations because they have vast resources to investigate the accidents and evidence tied to Congressional investigations and Toyota’s recalls, he said. He added that most states permit carriers to bring suits within three to six years under varying statutes of limitations.
“In the Toyota case, they’ll be more successful because there were so many similar accidents,” he said.
The insurance firms have retained an expert team at Cozen O’Connor, which is well-known for its subrogation and recovery practice. Each year, the Philadelphia-based firm typically recovers hundreds of millions of dollars on behalf of the insurance industry, according to its Web site. The Toyota suits are being led by Howard Maycon, managing partner of the Los Angeles office; David Denton of the Los Angeles; and Edward Ordonez of the Chicago office.
Maycon, who specializes in catastrophic property damage claims and insurance litigation, writes the firm’s Subrogation & Recovery Law Blog. Denton is a former in-house counsel for Chubb Group of Insurance Companies.
Ordonez returned a call to Maycon but referred press inquiries to his clients. Fireman’s Fund spokeswoman Janet Ruiz declined to comment beyond the complaint, as did Ameriprise spokesman Paul Johnson. Paul Richards, a spokesman for Motorists Mutual, did not return a call for comment.
The suits are far from slam dunks for the insurance carriers, Blood said. To pursue their claims, they must reconstruct the accidents, many of them from years past, to prove that the cause was sudden acceleration. “They won’t know what caused the accident. They’ll just know they lost control of the vehicle,” he said.
Much depends on the records that an insurance company keeps. “It may never have been documented by the insurance company in a way that would allow them to go after Toyota,” he said. “So it depends on the particular circumstances.”
Toyota issued a formal statement soon after the suits were filed indicating it would fight some of the claims.
“Subrogation claims are common between insurers and automakers,” Toyota spokeswoman Celeste Migliore said. “However, Toyota believes that any allegation that a vehicle-based defect is the cause of the unintended acceleration in this or any other complaint is completely unfounded and has no basis.”
Toyota already has moved to dismiss Allstate’s case. In a Nov. 30 filing, Toyota said most of Allstate’s more than 270 claims should be dismissed because the accidents occurred in 31 states other than California. “Adding another 216 out-of-state claims into the mix is not a burden that California’s taxpayers, juries or courts should shoulder, especially in the era of furlough days and staffing and budget cuts,” wrote Toyota’s lawyer, John Arya, a partner in the Los Angeles office of Atlanta’s Alston & Bird.
Toyota also filed a demurrer arguing that Allstate’s claims were inappropriately joined and that the court lacked subject-matter jurisdiction because each claim is worth less than $25,000. Toyota also asserted that Allstate lacks sufficient facts to bring its claims. A hearing on Toyota’s motions is scheduled for March 27.
Amanda Bronstad can be contacted at email@example.com. She owns a Toyota vehicle but is not party to any litigation.
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