Types of Subrogation Rights
Subrogation allows an insurer that has paid amounts under a policy to step into the shoes of the insured to assume the insured’s rights against a third party to prevent that party’s unjust enrichment. Subrogation can be pursued in any of three ways. First, subrogation can be asserted as an equitable claim, also known as legal subrogation, on the principle that one has paid a debt for which another is liable. In this way, “[s]ubrogation is ‘a creature of equity having for its purpose the working out of an equitable adjustment between the parties by securing the ultimate discharge of a debt by the person who in equity and good conscience ought to pay it.’”
Second, subrogation may be pursued as a contract claim, also known as conventional subrogation. “Conventional or contractual subrogation arises from a contract between the parties establishing an agreement that the party paying the debt will have the rights and remedies of the original creditor.” Insurance contracts typically contain subrogation provisions that obligate the insured to do nothing that would impair the insurer’s subrogation rights.
Third, subrogation rights may be provided by statute, such as workers’ compensation laws, uninsured/underinsured motorist coverage statutes, Medicare/Medicaid, and the federal Employee Retirement Income Security Act of 1974 (ERISA).
The type of subrogation rights at issue makes a difference as to the extent of potentially available recovery to the insurer.
General Equitable Rule: The “Make Whole” Doctrine
The “make whole” doctrine, also known as the “made whole” doctrine, is an equitable rule that generally requires that the insured be “made whole” for its loss before the insurer recovers subrogation proceeds. Whether the made-whole doctrine will apply and potentially limit the insurer’s subrogation rights will depend in part on the theory under which subrogation is available to and pursued by the insurer.
Courts in the majority of jurisdictions have recognized the make-whole doctrine for at least some purposes. Although the contours of the doctrine vary from state to state, as a general matter, the make-whole doctrine provides that an insurer’s right of subrogation arises only after the insured has been fully compensated or “made whole” for the loss. Montana, for example, has framed the issue as one of public policy, barring the insurer from subrogation recovery before an insured is totally reimbursed for all losses as well as costs, including attorney fees for recovering those losses. Florida has placed the issue in the context of common law, holding that an insurer does not have a right to subrogation or reimbursement from a tortfeasor unless the insured has collected all of his or her damages and been made whole. Regardless of the cited source for the doctrine, “[t]he equitable principle underlying the [make] whole [doctrine] is that the burden of loss should rest on the party paid to assume the risk, and not on an inadequately compensated insured, who is the least able to shoulder the loss.”
A minority of courts do not require application of the make-whole doctrine as a condition to insurer subrogation recovery, as a matter of equity. In addition, some courts have refused to apply the make-whole doctrine to commercial lines property insurers.
Few courts have addressed whether the make-whole doctrine applies to insurance policy deductibles or self-insured retentions (SIRs). The few cases that have addressed the issue generally hold that the make-whole doctrine does not apply to deductibles or SIRs. As the Washington Court of Appeals explained in Averill v. Farmers Insurance Co. of Washington, the insurer’s position that the made-whole doctrine does not apply to the deductible “is consistent with the purpose of the deductible.” “A deductible indicates the amount of risk retained by the insured. . . . The insurance [company] policy shifts the remaining risk of any damages above the deductible to the insurance company.” In other words, the insured contracted in its insurance policy to be out of pocket for the amount of the deductible. Allowing the insured to recover its deductible from the insurer’s subrogation recovery would essentially change the insurance contract to one without a deductible, but without a corresponding increase in premium.
Alternative Priority of Recovery: “Top Down”
While an equitable priority of recovery might require the insured to be first “made whole” before the insurer is entitled to subrogation proceeds, some policies provide a contractual “top down” method of reimbursement for subrogation claims that allow for insurers to recover first in a top-down fashion. Likewise, where the payments are made by both a primary and an excess insurer, the excess insurer may be entitled to subrogation recovery first, followed by the primary insurer, and then the insured to the extent that any amounts remain. “Indeed, a number of courts have indicated that, as a matter of course, ‘[w]hen more than one insurer contributes to the payment of a loss, the highest level insurer is . . . entitled to be made whole before a lower level insurer can be reimbursed.’”
In Royal Insurance Co. v. Sphere Drake Underwriting Management, Ltd., the court explained that the excess insurance policy’s subrogation provision “provides that the last paid-in monies be the first paid out.” Because the subrogation clause in the primary insurer’s policy did not address the priority of payment, the court concluded that the excess insurer was entitled to claim the entire amount of the proceeds received in settling cross-claims against third parties, less the amount of $7,500, which the trial court had allowed the policyholder to retain in reimbursement of the deductible in the primary policy. The primary insurer received nothing. The dissenting judge wrote that he found “no case law applying ‘last in, first out’ as between primary carriers and excess carriers,” notwithstanding the existence of such authority at the time of his dissenting opinion, and that he would have awarded “$60,000 only” to the excess insurer.
The “top down” approach for subrogation recovery may be pursued by an insurer in many—although not all—jurisdictions where the insurer has included such a subrogation provision in the relevant insurance contract, regardless of whether the make-whole doctrine otherwise applies to claims for equitable subrogation. As the Connecticut Supreme Court explained in Fireman’s Fund Insurance Co. v. TD Banknorth Insurance Agency, Inc., the “made whole” doctrine is the default rule, but parties may contract around it.
In the context of priority of recovery between layers of insurance, some courts also have recognized that the “top down” method should apply as a matter of equity and not solely as a contractual right. For example, in Fluor v. Allianz, the Ninth Circuit held that “traditional insurance principles and considerations of equity . . . dictate top-down allocation in accordance with the levels of risk exposure for which the various insurers bargained.” The nature of primary-excess insurance coverage creates a “hierarchy of coverage,” which dictates that “excess carriers should re-cover under subrogation before the primary insurers can be reimbursed when reimbursement circumstances arise.”
In a few instances, courts have found that a particular contractual subrogation provision is ambiguous or mere “boilerplate” and, as a result, have reverted to the “made whole” doctrine. In TD Banknorth, the Connecticut Supreme Court held that boilerplate subrogation language in a policy does not displace the make-whole doctrine in that state. Utah’s highest court likewise has held that general subrogation language is insufficient to explicitly inform the insured that an insurer has priority of rights. The test suggested by an Indiana intermediate appellate court is that to overcome the general rule that the made-whole doctrine applies, the policy language must be “clear, unequivocal and so certain as to admit no doubt on the question.” A court is thus more likely to enforce a make-whole subrogation provision that is specific as to the priority of recovery and the apportionment of expenses.
A minority of courts have refused to allow an insurer to contract around the make-whole doctrine, regardless of how the contract is drafted. Thus, in jurisdictions that follow such a rule, an insurer with a top-down subrogation provision may face challenges in enforcing its policy language as written, and its subrogation recovery could be limited to circumstances where the insured first recovers in full for its loss.
Other Limitations on Subrogation
Because the insurer’s subrogation rights are purely derivative in nature, the insured’s conduct may impair or destroy the insurer’s subrogation rights. For example, an insured’s general release in favor of a third-party tortfeasor may preclude any subsequent subrogation action by the insurer against the tortfeasor. In Baum v. Metropolitan Property & Casualty Co., a woman injured by a driver in a parking lot sought to recover from the driver’s insurer. The injured woman’s underinsured motorist’s insurer allowed her to sign a general release in favor of the driver’s insurer after it paid her the policy limits. After the injured woman sued her underinsured motorist’s insurer, the court held that allowing the injured woman to sign a general release waived the insurer’s subrogation rights. The Baum court held that it also meant that the insurer was not entitled to include other purported joint tortfeasors on the jury verdict form for the purpose of apportioning liability because doing so would allow the insurer to circumvent the consequences of the general release.
Courts have recognized an exception to the general release as a bar to the subrogation rule where the third-party tortfeasor settles with the insured and obtains a release with knowledge of the presence of insurance or with knowledge that the insured has received payment from the insurer. “The insured cannot, after the loss has occurred and after payment to the insured by the insurer, prejudice the right to subrogation by settling with or releasing the offending party who had knowledge of the insurer’s right of subrogation.” In these circumstances, the tortfeasor’s knowledge regarding its potential liability as a subrogation defendant prevents the release from impairing the rights of the insurer.
It is a long-standing rule that the insurer as subrogee cannot recover more than it paid. In addition, a subrogee is “placed in the precise position of the one to whose rights he has been subrogated” and can recover only to the extent that the subrogor could recover.
An insurer that pays an insured’s loss is only subrogated to the insured’s same rights against a third party that relate to the same loss compensated by the insurer. In light of this rule, some insureds have attempted to characterize their settlement with a tortfeasor in a manner to avoid their insurer’s subrogation rights. For example, in Pacific Insurance Co. v. Esperanza, an insured who had been injured in a car accident included language in his settlement agreement with the tortfeasor to describe only non-duplicative losses as the basis for the settlement payment and thereby cut off his disability insurer’s reimbursement rights. In the subsequent subrogation action, the court refused to give dispositive evidentiary status to how the damages and resulting settlement payment were categorized in the insured’s release. Nonetheless, on remand, the insurer would have the burden to show that the settlement payment by the tortfeasor’s insurer duplicated its disability payments.
Recovery from the Insured’s Contractual Indemnitor
An insurer may recover some or all of its payment to (or on behalf of) an insured if the same loss is paid to the insured as a result of a contractual indemnity arrangement. Even if the contractual indemnitor has not paid the insured, the insurer subrogee may be able to pursue the contractual indemnitor directly. To the extent that the insurer pursues recovery from the indemnitor via subrogation, the rules discussed above, including the rule that the insurer can recover only up to the amount that it paid and only for the same loss that it paid, would apply.
Some jurisdictions will prioritize which policy or insurance program must respond first to a loss according to the parties’ intention to shift liability as reflected in an indemnification agreement. As the Fifth Circuit explained, “an indemnity agreement between the insureds or a contract with an indemnification clause, such as is commonly found in the construction industry, may shift an entire loss to a particular insurer notwithstanding the existence of an ‘other insurance’ clause in its policy.” Insurers must use caution, though, because some courts have rejected the use of contractual indemnification provisions to prioritize coverage, relying instead on only the policies’ respective other insurance provisions.
Beyond the priority of insurance policies, a contractual indemnification agreement may give the indemnitor the primary payment obligation, resulting in no affirmative defense or indemnity obligation by the indemnitee’s insurer. In MapleWood Partners, L.P. v. Indian Harbor Insurance Co., the Eleventh Circuit, applying Florida law, held that an insurer did not breach its duty to defend or indemnify an insured where the insured’s defense and settlement costs were paid by its contractual indemnitor. In MapleWood, the insured financial services firm had entered into an advisory services agreement with a company operating a chain of Mexican restaurants. The restaurant chain also agreed to defend and indemnify the insured in any lawsuits because of its association with the chain. When three such lawsuits were filed against the insured, the restaurant chain paid the vast majority of the insured’s defense expenses and settlement costs pursuant to the parties’ contractual indemnity provision. The insured then sued its professional liability insurer for breach of contract for failing to pay the insured’s losses from the three suits. The trial court granted the insurer summary judgment, concluding that allowing the insured to recover under the policy would give it an improper double recovery because the restaurant chain had already paid the insured’s defense and indemnity.
The Eleventh Circuit affirmed on appeal, holding that the contractual indemnification agreement between the insured and the restaurant chain gave the restaurant chain the “primary obligation” to pay the insured’s losses in the three lawsuits. The court rejected the insured’s argument that the contractual indemnification provision was never intended to cover losses covered by an insurance policy, finding nothing in the provision’s text to support that interpretation. The court observed that the insured was not “left alone as the losses were piling up,” because the contractual indemnitor had paid the defense and settlement costs.
In sum, insurer recovery rights from third parties will depend on which jurisdiction’s laws apply and, in large part, on whether the insurer is pursuing its rights in equity or under contract. However, a claims professional can take steps from the outset of a claim to evaluate the potential recovery rights, reserve them accordingly, and take steps to protect and pursue those rights.