Waiver of Subrogation endorsment - not needed

[etimer]

To me this need to have the waiver of subrogation endorsement falls under the same category as people who want to be endorsed as additional insureds even though the insured has an AI Broad Form. I send a copy of the AI Broad Form, highlighting the area that reads, "any person or organization, other than joint venture, for whom you have agreed by written contract." People don't believe what they read unless they see "their" name and on to many occasions I've gone toe to toe with the General Contractor PM. I've never lost a battle and they finally realize that hey...it is all good.

So what I am thinking of the waiving the transfer of rights, that the attorney was correct when he said that there is already an implied waiver. Of course again people like to see "their" name on a form and it is too much trouble to consider the implied concept. ISO stepped forward and offers endorsement forms for the waivers. Oh well here are my thoughts on this matter.

Section IV #8 the Transfer of Rights of Recovery Against Others To Us reads - "If the insured has rights to recover all or part of any payment we have made." If the Waiver of Subrogation is done in contract, before a loss, it is implied that they have already given their right away (waived subrogation), therefore the insurance company can not assume an insured's right because the right does not exist. Am I correct it is your position?

The same for the Commercial Auto --

Paragraph 2-

Section IV #5 Transfer of Rights of Recovery Against Others To Us reads, "to whom we make payment to under this coverage form has rights to recover damages from another." Again if they have signed their rights away before the loss the insurance company can't assume a right that doesn't exist. If the Waiver of Subrogation is done in contract, before a loss, it is implied that they have already given their right away (waived subrogation), therefore the insurance company can not assume an insured's right because the right does not exist.

To me it all hinges on waiving the right of recovery before a loss.

To make matters worse, I am seeing the construction industry is having a standard request for a wavier of subrogation on WC policies. That is an entire ball of mess, to the point that some States have made it illegal to do because it is against good public policy. But it doesn't seem to phase or slow down the requests in the States where it is legal.

http://www.irmi.com/expert/articles/201 ... ement.aspx

"Requesting waivers has also become a "best practice" for brokers, insurance advisers, and risk managers. Few are willing to have their competence questioned because they failed to follow an industry norm—even if the norm is largely pointless."

It just seems that this is a lot of follow the leader and nobody wants to think about it. As someone of 30 years in the business said -- "But alas – it is the norm. I did have one carrier at one time for one of my big contractors who absolutely would not provide this endorsement. "

[etimer]

Implied waiver upheld by the Pennsylvania courts

http://www.klgates.com/pennsylvania-sup ... 0-22-2007/

http://www.nilesbarton.com/articles/the ... nnsylvania

Note where the court says one remedy could be "the insurer could insert an exclusion into its policies that permits it to deny coverage if an insured waives subrogation rights." I guess we will need to keep an eye open for the exclusions.