43 Pages Posted: 17 Aug 2008 Last revised: 9 Jul 2009
Date Written: August 14, 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.
Keywords: subrogation, reimbursement, ERISA
Suggested Citation: 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: https://ssrn.com/abstract=1227323