Is a Property Owner Liable if a Tree Falls on a Car

There are two different issues here. The first is whether the insurance company can assert subrogation rights to amounts it has not paid. As was previously indicated, subrogation rights are to recover monies paid out, so there is no such right. The contract of insurance may allow the insurance company to attempt to collect the deductible along with the money paid out with the idea that they will reimburse the insured for the deductible if they recover that amount, so it often makes sense to let the insurance company attempt to subrogate. (In some states the insurance company must attempt to recover the deductible for the insured when litigating a claim based upon subrogation.) The second issue is whether a lawsuit for the deductible would preclude the insurance company from exercising its subrogation rights and whether the insurance contract prohibits the insured from bringing an independent lawsuit on that basis. A number of states have statutes or case law applying to subrogation that makes subrogation a separate and independent cause of action from a claim by the insured for recovery of losses not covered by insurance. See, e.g., State Farm v. Ware's Van Storage, 953 A.2d 568 (Pa. Super 2008). In states that do not give the insurance company an independent cause of action the insured should work with the insurance company and adjuster, and be sure not to bring a lawsuit that will prevent the insurance company's exercise of subrogation in contravention of the insurance contract. Sometimes the insurance company will opt not to subrogate, usually due either to questions of liability or a determination that pursuing the claim will not be cost-effective, and will thus release their insured to sue subject to a lien for any amount recovered in excess of out-of-pocket losses.