Mitigation Of Damages In Texas

In property damage subrogation claims, mitigation of damages is always an issue. It may relate to the cost of repairing or replacing damaged property, including salvage for property that cannot be repaired. In commercial settings, it may also relate to the insured's efforts to minimize business interruption losses. The general rule in Texas is that damages that may have been avoided or mitigated are not recoverable, and an injured party must use reasonable efforts to avoid or mitigate its losses. The standard is that of ordinary care, and what an ordinary prudent person would have done under the same or similar circumstances. And, while an injured party has a duty to minimize its damages, this duty arises only if the damages can be avoided or mitigated with only slight expense and reasonable effort. As such, an injured party need not take all possible actions that might possibly reduce the amount of their damages. Additionally, the duty to mitigate damages does not pre-exist the wrongful conduct giving rise to the damages. Finally, the burden of proving a failure to mitigate damages is upon the party who caused the loss. However, a subrogating carrier needs to be prepared to establish not only how it calculated its insured's loss, but also how it and its insured mitigated the insured 's damages.