What's In A Name?

Plenty. Particularly if you are an insurer attempting to advance a subrogated claim and your insured is in bankruptcy protection proceedings. This was the circumstance faced by the insurer in Douglas v. Ferguson Fuels. What would have otherwise been a garden variety oil spill subrogated action was complicated by ongoing bankruptcy proceedings involving the insureds. By the time the subrogated claim was issued the insured had made an assignment in bankruptcy. By application of s. 71 of the Bankruptcy and Insolvency Act, the insured's right of action vested in the trustee once an assignment in bankruptcy was made. The subrogated action was commenced in the name of the insured and the court, applying long standing principles of bankruptcy law held that the claim commenced in the name of the insured was a nullity. Had the claim been brought in the name of the Trustee the insurer would have been entitled to proceed.