Will NC be the worst state for manufacturers? The unintended consequence of HB 542: Destroys insurance and business subrogation for losses from product fauilure
I am attaching below the letter I sent to three members of the North Carolina House Select Committee on Tort Reform.
I believe that House Bill 542 may "look" good for business but have the unintended consequence of making North Carolina the WORST place for manufacturing in the entire United States. I've inserted a few comments below in [BOLD] brackets.
Rep. Stam, Rep. Weiss, and Rep. Murray:
I am a lawyer, like each of you, and I would like to call to your attention what I think is a major unintended consequence of HB 542. I called each of your offices today to discuss this issue.
HB 542 destroys the right of a NC manufacturer and their insurance company to subrogate on catastrophic losses caused by defective products. This hurts manufacturing, business, and insurance interests in North Carolina.
Please read the below example:
Products Liability Immunity Destroys Business and Insurance Subrogation: HB 542 gives immunity from suit to any company that produces a faulty product that has been "approved for sale" by any State of Federal regulatory agency. This bar would apply to insurance subrogation claims against the original tortfeasor and therefore bars insurance companies and the self-insured from recouping losses caused by faulty products.
EXAMPLE. Power Plant Explosion: A North Carolina power company buys a defective industrial boiler from a Chinese (or any) manufacturing company. This product is "approved" by several state and federal agencies as required by law." [Does this sound like the Apex Chemical explosion?]
That boiler explodes and spreads toxic ash over a 3 mile radius. The environment is polluted, people are made sick, and the business site is shut down. The NC business itself suffers a $300 Million dollar business and property damage loss and is sued by the State and citizens for the toxic ash injuries. The insurer for the power company (or self-insured company itself) must pay for the business loss, claims of injuries and property loss, but would be prohibited by HB542 from seeking a recovery from the negligent Chinese manufacturer. The State of North Carolina would be prohibited from seeking compensation for the loss to the environment and the toxic clean up costs. This will increase the cost of insurance for business and the State and possibly force insurers to stop insuring for loss from product defect.
HB542 uses the following definitions: [See page 8 of HB542] " (1) "Claimant" means a person or other entity asserting a claim"
"Product liability action" includes any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging, or labeling of any product." (Emphasis added)
"No manufacturer or seller shall be held liable in any product liability action if any one of the following apply:"
Under this very simple language above, businesses that suffer catastrophic losses due to product defects will NOT be able to recoup those loses.
Moreover, what will be the effect on Business Insurance Policies? A standard loss policy would have language like the following:
"If we pay a claim under your policy, we will take over your right to recover that amount from any other person or organization. You agree to cooperate with us and not do anything that will interfere with our chances of recovery".
Insurers would be subrogated to the right of the North Carolina company. Because subrogation is "the substitution of one person in the place of another with reference to a lawful claim, demand, or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities," the North Carolina Company would have no right to recover under HB542 and thus the insurance company would be subrogated to nothing.
North Carolina will be the ONLY state in the nation with such a law.
This raises many difficult questions:
1) Will insurance companies issue large commercial policies to North Carolina manufacturers know there will be no right to subrogate in failed products cases? Can businesses operate without this insurance?
2) Will North Carolina manufacturers receive insurance rate increases due to the higher cost risk for North Carolina claims?
3) Will manufacturers avoid locating in North Carolina because they will not be protected from defective products they purchase for their business?
4) Will insurance products for consumers be impacted by the lack of subrogation for faulty manufacturing? Will home owner insurance rates increase due to the number of fires caused by defective products where there will be no subrogatable interest for the insurance company?
5) Why would a manufacturer choose North Carolina over 49 other states knowing that it had no protections from faulty products within its own facility?
I ask that you stop HB542 before it further erodes North Carolina's business economy.
A non-hypotehtical Example of Products Liability Subrogation In Insurance
Here is an excellent example of how subrogation works in the context of product liability claims. This is a blog post from Cozen O'Conner, a national law firm that helps insurance companies recover funds from manufacturers of defective produts when those products cause damage which is insured. Here is a link to their full blog post. Lasko Recalls 4.8 Million Box Fans
The case involved a massive barn fire at a breeding farm in Hondo, New Mexico. Six world class race horse breeding stallions were killed in the fire and the barn itself was totaled. Cozen O’Connor represented over sixty sophisticated horsemen clients who had ownership interests in the stallions, and their insurers. The insurers for the horses and the barn went to great lengths to preserve the fire scene, and as a direct result of their diligence the experts were able to examine each electrical device in the barn and identify the fatal flaw in the Lasko fan motor.
On March 24th (long after the fire) the Consumer Product Safety Commission announced a voluntary recall of 4.8 million Lasko box fans. The recall notice reports “an electrical failure in the fan’s motor poses a fire hazard to consumers.” The CPSC cites a “barn fire resulting in extensive property damage” as a basis for the recall.
If this fire had occurred in North Carolina under House Bill 542, the lawyers at Cozen O'Conner would have been barred from seeking recovery from Lasko. The insurer would have paid out millions and not been reimbursed by the negligent manufacturer of the fan. And who would absorb the cost of the unreimbursed expenses? Anyone who buys insurance.
Hopefully this will make a difference. This bill is not just about people injured by defective products, but also business.
This is an actual photo of the Apex, NC plant explosion at a chemical storage facility.