Cloyd v. Champion Home Builders Co.

I cannot agree that the undated release given by the insured Cloyd bars the subro-gation rights of Cloyd’s insurance carrier. Instead, I would hold that because the release is an affirmative defense, the defendant had the burden of proof to show that the carrier’s subrogation rights are barred by the release as a matter of law. This the defendant failed to do by summary judgment evidence. Thus, the summary judgment should be reversed. Accordingly, I dissent.

The principal question presented is whether the defendant has established its affirmative defense, by the undated release signed by the…