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http://ssrn.com/abstract=1227323
 
 

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Understanding and Problematizing Contractual Tort Subrogation


Brendan S. Maher


University of Connecticut School of Law

Radha A. Pathak


Whittier Law School

August 14, 2008

Loyola University Chicago Law Journal, Vol. 40, 2008

Abstract:     
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, ERISA

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Date posted: August 17, 2008 ; Last revised: July 9, 2009

Suggested Citation

Maher, Brendan S. and Pathak, Radha A., Understanding and Problematizing Contractual Tort Subrogation (August 14, 2008). Loyola University Chicago Law Journal, Vol. 40, 2008. Available at SSRN: http://ssrn.com/abstract=1227323

Contact Information

Brendan S. Maher
University of Connecticut School of Law ( email )
65 Elizabeth Street
Hartford, CT 06105
United States
HOME PAGE: http://www.law.uconn.edu/faculty/profiles/brendan-s-maher
Radha A. Pathak (Contact Author)
Whittier Law School ( email )
3333 Harbor Blvd.
Costa Mesa, CA 92626
United States
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