State Farm Backpedals on Subrogation Story

Last Monday, State Farm Insurance downplayed a report which claimed that the insurer had asked Toyota to repay it for “any crashes” related to accidental acceleration, explaining that such liability queries are standard industry practice.

On Sunday, there was an online report in USA Today which said that such requests, whether made by State Farm or other insurers, could cost Toyota millions of dollars, and could return some money to customers.

State Farm spokesperson Phil Supple said that “subrogation” – the process of seeking claim repayment from a liable party – is quite common. When asked, he could not give the number of claims that his company had already asked for repayment as a result of Toyota’s acceleration issue. He explained, “We have not initiated any recent actions with Toyota, and the article implies that (we did). We just think that’s a little misleading.”

Subrogation allows insurance companies to seek repayment for a previously paid-out claim. If a policyholder used the claim to pay his or her deductible, Supple said, some or all of that money could be returned. He added, however, that each case is unique, and that there is no such thing as an average timetable. “We do that all the time if we feel there’s a liability factor with the manufacturer of a product,” Supple said.

Toyota has recalled more than 6 million vehicles in the U.S., and more than 8 million worldwide, due to acceleration problems in multiple models and braking issues in the Prius hybrid. Earlier this month, the U.S. government announced that it was seeking a $16.4 million fine against the Japanese automaker, accusing the company of hiding a “dangerous defect” when they were slow to report faulty gas pedals. So far, 52 deaths have been linked to crashes allegedly caused by Toyotas that unintentionally accelerated.

State Farm has previously stated that it informed federal authorities about growing reports of accidental acceleration issues with Toyotas in 2007. The USA Today report cited a specific case from that year, when the insurer sent a letter to the automaker asking for repayment of claims involving a 2005 Camry, with allegedly had a documented history of such problems. The insurer was not reimbursed.

Toyota Situation Will Only Get Worse

According to ConsumerAffairs.com, the world of hurt in which Toyota has been living — recalls in the millions worldwide, a federal investigation, fines, being forced to dig deep in the incentive well to keep sales – is only going to get worse. Now Allstate and State Farm have begun a “subrogation” process against the automaker.

That’s one of those legalese / financial terms we don’t hear getting tossed around much. Try this one, “passing the buck.” Yep, subrogation means shifting the financial burden from one party to another. The insurance companies that have paid out millions for accidents involving Toyotas now want the carmaker to cough back some of the dinero.

Although neither insurer has released specific details about the proceedings, Allstate has, according to industry sources, told Toyota that it has claims linked to product defect. While initial claim reviews may only go back a few months, the potential for a wider and more chronologically lengthy review is very real.

At least 2.3 million Toyotas have been recalled and repaired for a sticking accelerator pedal, but the National Highway Traffic Safety Administration (and ConsumerAffairs.com) can cite complaints back to 2005.

A USAToday report mentioned by ConsumerAffairs.com points to a State Farm attempt to recover claims in 2007 involving an accident with a 2005 Toyota Camry. According to experts in the subrogation field, the actions could wind up costing Toyota as much as $30 million.

Of course, the bad news for Toyota may be good news for drivers. The more the companies are able to recover from the carmaker, the fewer expenses will have to be passed on to consumers in the form of premium hikes.

Either way, however, Toyota faces a tough road ahead, one it will have to negotiate perfectly to win back public trust. It remains to be seen whether risk profiles will go up for Toyota models, but certainly, the company’s public relations storm, while settling down, is far from over.

NHTSA Seeks Maximum Penalty Against Toyota

While the Brits are hailing Toyota as their top green car, here in the States, the National Highway Traffic Safety Administration (NHTSA) has sued the automaker, and is asking for the $16.375 million – the maximum civil penalty, for its failure to inform the automobile safety organization about the “sticky pedal” defect that consumers have been dealing with for the last four months, or longer, and that triggered a 2.3 million vehicle-recall in January, despite knowing that there was a real risk to motorists and their passengers. notify the auto safety agency of the dangerous “sticky pedal” defect for at least four months, despite knowing of the potential risk to consumers. This would be the largest civil penalty ever assessed against an automaker by the NHTSA, says U.S. Transportation Secretary Ray LaHood.

Under current laws, auto manufacturers are required to notify the NHTSA within five business days after they determine that a safety defect exists. Through documents obtained from Toyota Motor Corp., NHTSA learned that the company has known about the sticky pedal issue since at least September 29, 2009, on which day the automaker issued repair instructions to their distributors in Canada and 31 European nations, to address sudden increases in engine RPM, sudden vehicle acceleration, and sticky accelerator pedals. The documents also show that Toyota knew American consumers were having the same problems.

LaHood said, “We now have proof that Toyota failed to live up to its legal obligations. Worse yet, they knowingly hid a dangerous defect for months from U.S. officials and did not take action to protect millions of drivers and their families. For those reasons, we are seeking the maximum penalty possible under current laws.”

While the NHTSA continues to review 70,000 pages of Toyota documentation, it is also pushing to make smart brakes mandatory in all cars sold in the United States. Such safety features earn customers insurance discounts, but also make issues like Toyota’s sticking pedals less likely, the organization says.

Toyota Accused of Racketeering; Could Mean Triple Damages

As if the insurance claims and safety investigations aren’t enough, Reuters is reporting that Toyota is facing legal woes. Specifically, attorneys already seeking civil damages against the automaker because of diminished resale values on recalled models are now expanding their cases to also include racketeering charges. The use of federal racketeering laws to broaden existent consumer class-action complaints, which currently include more than eighty separate suits in at least forty states, exposes Toyota Motor Corp, U.S. to even greater potential liability than it was already facing.

Under the Racketeer Influenced and Corrupt Organization Act, commercial enterprises may be found liable for triple the damages for any harm caused by their fraudulent activities. This means, that litigation originally sticking Toyota for a bit over $2 billion in damages could now end up costing the Japanese-owned company more than $10 billion in payments to consumers, according to Tim Howard, lead counsel for a team of law firms which is handling roughly half of the cases.

When interviewed, Howard said that each of the amended lawsuits is, “…a much more robust and thorough complaint than the first rounds because of how the evidence has evolved since then.”

Reuters could not reach any one at Toyota for comment before going to press today, but this is unsurprising, as the automaker has consistently withheld comment on pending litigation.

Support for the revised complaints is based on a number of documents, and on congressional testimony by Toyota executives, to make the case that the automaker was aware of “unintended acceleration problems” for several years, even as it continued to promote cars demonstrating the issue as reliable and safe. Examples of the documentation include a 2002 technical service bulletin cited in one of the Florida lawsuits. The bulletin, written for the 2007 Toyota Camry, provides the solution for recalibrating the Enginge Control Model. This bulletin would seem to be in contradiction of Toyota’s insistence that electronics have nothing to do with the acceleration issue, and is related only to the gas pedal being trapped by improperly fitting floor mats, or sticky pedals.

Only the pedal issues were ever singled out for correction in recalls of more than eight million Toyota vehicles, to date, the largest such recall ever taken by the company.

The lawsuits assert that because Toyota allegedly concealed vehicle defects while advertising them as safe, the automaker has engaged in criminal fraud, which qualifies as “racketeering activity.”

According to Howard, as of Tuesday his group of law firms had updated existing consumer lawsuits in eight states, with amended filings in twelve more states planned by the end of the week. Those cases will be consolidated into a single class action lawsuit with other cases from around the country, sometime in the next couple of months, after a hearing in the U.S. District Court in San Diego, set for Thursday, March 25th.

Lawsuits against Toyota have become increasingly numerous in the weeks since the recalls began for a problem linked to more than 50 crash deaths in Lexus and Toyota vehicles under investigation over the last ten years. The cases related to injuries and deaths are the most obvious cases, but there was also a class-action suit filed last month in Los Angeles on behalf of U.S. shareholders. That suit accused the automaker of misleading investors.

Reuters says, “The consumer class actions are based on the premise that the resale value of Toyotas has dropped substantially as a result of the company’s safety crisis.”

Toyota has always had one of the industry’s highest resale values for its vehicles, but according to Howard, the major automobile valuation services have downgraded that value because of these acceleration issues.

Toyota Corolla Designated Top Safety Pick by IIHS

Despite the fact that Toyota is taking a lot of heat for not addressing the gas pedal problems in its vehicles that resulted in many accidents and injuries, there is some positive safety news about the Japanese automaker. According to IIHS, the Insurance Institute for Highway Safety, both the Scion xB and the Toyota Corolla have earned the safety organization’s designation as Top Safety Picks.

To qualify as a Top Safety Pick, vehicles must earn a rating of “good” – the highest rating possible – in the front, side, rollover and rear-impact crash tests run by the Insititute, and they must also be equipped with electronic stability control. The Corolla and xB are the first Toyota models to earn such a designation, since the required criteria were tightened by the Institute, with the addition of the new rollover test this year.

The specifics behind a “good” rollover rating are that the vehicle’s roof must support the equivalent of four times the vehicle’s weight (as compared with the current Federal standard of only 1.5 times the weight), said a representative of the IIHS. In the Institute’s test, the Corolla’s roof supported 5.1 times the car’s weight, while the xB’s roof withstood a force equal to 6.8 times the car’s weight.

Institute president Adrian Lund told the press, “Top Safety Pick recognizes the vehicles that afford buyers the best overall protection in common crashes. With more top performers, there’s no reason to buy a small car with less than stellar crash test ratings.”

Both the xB and the Corolla also earned the 2009 Top Safety Pick award.

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