Understanding and Problematizing Contractual Tort Subrogation
Brendan S. Maher
Oklahoma City University School of Law
Radha A. Pathak
Whittier Law School
August 14, 2008
Loyola University Chicago Law Journal, Vol. 40, 2008
The modern incarnation of tort subrogation allows an insurer to force its insured to turn over the litigation proceeds independently obtained by the insured against a third-party tortfeasor, even if the insured has not been made whole by such litigation. This Article demonstrates that such a result is the product of a subrogation-as-contract paradigm that has taken hold in the federal system, most notably by the United States Supreme Court in Sereboff v. Mid-Atlantic Services, 547 U.S. 356 (2006). More importantly, the Article illustrates the conceptual and historical roots of subrogation to demonstrate the extent to which subrogation-as-contract is divorced from the doctrine's origins and to illustrate the serious negative consequences that flow from such a dramatic departure.
Number of Pages in PDF File: 43
Keywords: subrogation, reimbursement, ERISAAccepted Paper Series
Date posted: August 17, 2008 ; Last revised: July 9, 2009
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