Understanding and Problematizing Contractual Tort Subrogation Academic Article

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.

authors

• Maher, Brendan

published proceedings

• Loyola University Chicago Law Journal

author list (cited authors)

• Maher, B. S., & Pathak, R. A.

complete list of authors

• Maher, Brendan S||Pathak, Radha A

publication date

• October 2008

publisher

• Loyola University Chicago School of Law  Publisher

published in

• Loyola University of Chicago law journal. Loyola University Chicago. School of Law  Journal

keywords

• Erisa
• Law
• Reimbursement
• Retirement Security Law
• Subrogation
• Torts

URI

• https://scholarship.law.tamu.edu/facscholar/1415

start page

• 49

end page

• 91

volume

• 40

issue

• 1

URL

• https://scholarship.law.tamu.edu/facscholar/1415/