August 14, 2008
Brendan Maher and Radha Pathak Publish Article Entitled Understanding and Problematizing Contractual Tort Subrogation
Title: Understanding and Problematizing Contractual Tort Subrogation
Publication: Loyola University Chicago Law Journal
Date: August 14, 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.
Suggested citation: Brendan S. Maher & Radha A. Pathak, Understanding and Problematizing Contractual Tort Subrogation, 40 Loy. U. Chi. L.J. 49 (2008), available at http://papers.ssrn.com/abstract=1227323.