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Understanding and Problematizing Contractual Tort Subrogation

43 Pages Posted: 17 Aug 2008 Last revised: 9 Jul 2009

Brendan S. Maher

University of Connecticut School of Law

Radha A. Pathak

Whittier Law School

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

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:

Brendan Maher

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States


Radha Pathak (Contact Author)

Whittier Law School ( email )

3333 Harbor Blvd.
Costa Mesa, CA 92626
United States

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