Creative Pleadings Cannot Change a Subrogation Claim Into Something Else

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Subrogation is an equitable remedy allowing a person who pays to indemnify another who was injured by a negligent tortfeasor to step into the shoes of the other to seek reimbursement from the person responsible for the debt. 

In West Virginia v. Great Cacapon , No. 19-0103, Supreme Court Of Appeals Of West Virginia (November 4, 2020) litigation arose after a fire in 2016 destroyed the building where Respondent Great Cacapon Volunteer Fire Department, Inc., (VFD) was housed. 

ZALMA OPINION

Creative pleading should be, and mostly is, offensive to a court. Subrogation is an equitable remedy that has existed in British jurisprudence – adopted by U.S. courts – since before insurance as it is know today existed. WVCoRP had a contract that gave it a right of subrogation, sued under that right, changed the wording of its allegations to avoid the application of the statute by creative arguments. They could not get the argument past the Supreme Court of Appeals.