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Chapter 42 "Subrogation"

by Eugene G. Beckham

Reprinted with permission from Chapter "SUBROGATION" by Eugene G. Beckham in Law and Practice of Insurance Coverage Litigation (West Group and ABA 2000)

Table of Sections
42.1 Scope Note

42.2 Definitions and Distinctions

  1. Subrogation
  2. Subrogor and Subrogee
  3. Conventional and Legal Subrogation
    1. Conventional and Legal Subrogation Distinctions
  4. General Principles
  5. Assignment
    1. Assignment and Subrogation Distinctions
  6. Contribution and Indemnity
    1. Contribution, Indemnity and Subrogation Distinctions
  7. Reimbursement

42.3 Subrogation Actions

  1. Elements of Subrogation Actions
  2. Parties
    1. Plaintiffs
    2. Defendants
  3. Intervention by Insurer

42.4 Insurance Subrogation

  1. General Considerations
    1. Parties
    2. Policy Terms
    3. Damages
    4. Statutes of Limitation
    5. ERISA
    6. Subrogation Liens
  2. Plaintiffs' Considerations
    1. Joint Representation of Subrogor and Subrogee
    2. Insureds' Interests
    3. Pleading
    4. Deductibles
    5. Evidence
    6. Experts
    7. Arbitration
  3. Defendants' Considerations
    1. Pleading
    2. Subrogors' Negligence
    3. Damages
    4. Contracts
    5. Counter Claims and Third Party Practice
    6. Arbitration
    7. General Practice Pointers for Defendant
    8. Defendants' Settlement Considerations
  4. Insurance Guaranty Associations

42.5 Discovery

  1. Business Records
  2. Basis for Payment
  3. Cooperation of the Insured
    1. Insurers' Obligation to Obtain Information from Insured in Discovery/li>

42.6 Duties

  1. Insureds' Duties
    1. Cooperation
    2. Good Faith
  2. Insurers' Duties
    1. Payment of Claim
    2. Allow Insured to Be Made Whole

42.7 Criminal Proceedings

  1. Restitution
  2. Restitution Payee
  3. Civil Remedies

41.8 Forms

  1. Complaint
  2. Answer
  3. Notice of Serving Interrogatories
  4. Requests to Produce

42.1 Scope Note

This Chapter discusses general principles of subrogation, distinctions between subrogation and other sources of causes of action and the differences between various types of subrogation actions. Insurance subrogation is emphasized. Suggestions regarding factors to be evaluated in prosecuting and defending insurance subrogation cases are made. Commonly encountered evidentiary and tactical problems in insurance subrogation litigation are noted.

42.2 Definitions and Distinctions
    • Subrogation

    Subrogation is the substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities. 1

    • Subrogor and Subrogee

    The one who initially discharges the obligation is called the "subrogee" and the party who is compensated is the called "subrogor." 2 Subrogation is often explained by stating that a subrogee "stands in the shoes" of the subrogor. 3 It is the subrogee which steps into the shoes of the subrogor. 4 The subrogee is the real party in interest in the claim against the third party having acquired the subrogor's rights. 5

    • Conventional and Legal Subrogation
      1. Conventional and Legal Subrogation Distinctions

    Legal or equitable subrogation is not available to volunteers. 9 Conventional or contractual subrogation is available to volunteers. 10 Legal subrogation is not available until the subrogor is fully compensated. 11 Conventional subrogation does not require full compensation of the subrogor. 12
    There are two kinds of subrogation, conventional and legal. 6 "Conventional" subrogation is created by contract while "legal" subrogation is implied by law. 7 Legal subrogation is based on equitable considerations. 8

    • General Principles

    Subrogation is not available to one who pays his own debt. 13 Payment based on a legitimate but mistaken belief that such payment is owed does not defeat a right to subrogation. 14 Subrogation is highly favored. 15 Subrogation is generally available under the common law. 16 A comprehensive list of subrogation applications is impossible. 17

    Wrongful acts of a third party which cause damage to an insured are not excused or released simply because an insurer pays for the loss. 18 Subrogation allows insurers to assume their insureds' rights to make claims against wrongdoers who cause losses. 19 Subrogation is not limited to tort and includes breach of contract and other causes of action subrogors may have against wrongdoers. 20

    Insurers' rights to subrogation may be created by statute. 21 Other statutes impair or forbid subrogation by insurers. 22 Except where prohibited by law, 23 insurance contracts almost invariably provide for subrogation rights when a payment is made. Some states construe subrogation clauses in insurance contracts as restatements of common law. 24 Other jurisdictions hold such policy provisions may alter the common law. 25 Overreaching subrogation clauses are ineffective. 26

    The insured cannot be liable as a defendant in a subrogation action. 27 This bar extends to coinsureds. 28 Although sometimes courts, 29 and statutes, 30 refer to subrogation against the insured, strictly speaking, recovery from an insured is a reimbursement; subrogation must be asserted against third parties. 31

    • Assignment
      An assignment is a transfer of intangible property rights. 32 "Subrogation and assignment are distinct legal concepts. Subrogation operates only to secure contribution and indemnity, whereas an assignment transfers the whole claim." 33
      1. Assignment and Subrogation Distinctions

    The majority of states distinguish assignment and subrogation. 34 Some states do not recognize a meaningful difference. 35 "An express assignment of a claim to the insurer is unnecessary, since subrogation arises from the fact of payment . . . ." 36 While subrogation is not an assignment, in a broad sense subrogation may be considered as assigning a cause of action by operation of law and typical contractual subrogation provisions may use assignment language. Both assignment and subrogation may apply in a single case. 37 Assignment of personal injury claims is generally forbidden. 38 But generally, insurers are permitted to subrogate medical payments. 39 One court summarized the general state of the law:

    [Subrogation] has been accepted in the insurance field . . . with respect to medical costs by an impressive weight of authority. On the other hand it is generally conceded that a claim or cause of action for personal injuries arising out of tort is not assignable. Arguments are persuasive for and against any such distinction. Nonetheless, we . . . affirm the universal rule of non-assignability of personal injury claims, but also the majority rule as to subrogation provisions contained in insurance policies with respect to medical expenses . . . . 40

    • Contribution and Indemnity
      1. Contribution, Indemnity and Subrogation Distinctions

    Technically, contribution and indemnity are mutually exclusive remedies but they are often asserted as alternative causes of action in the same lawsuit. 48 "Indemnity" shifting less than complete liability is really contribution and "contribution" shifting all liability is actually indemnity. 49 Contribution and indemnity are plainly closely related. 50 Some court opinions have adopted language which obscures the distinctions between contribution and indemnity. 51

    Contribution and indemnity actions sometimes appear to seek the same relief as subrogation allows and are often asserted as alternative theories to subrogation recovery. 52 The relationship between the person claiming the right and the person whose debt is paid is the distinguishing characteristic between contribution/indemnity and subrogation because contribution and indemnity require a common liability with the one against whom contribution and indemnity are sought. 53 Such a common liability precludes subrogation which is not available to one who pays his own debt. 54 Subrogation may be available where contribution is not. 55 Contribution may be available when subrogation is not. 56
    Contribution is the right of one who has discharged a common liability to recover from another also liable the proportion of the loss which he ought to pay or bear. 41 Indemnity is a contractual or equitable right whereby the entire loss is shifted from one who is only technically or passively at fault to another who is primarily or actively responsible. 42 Statutes may allow or forbid contribution and indemnity. 43 Indemnity may arise from contract or common law. 44 One seeking common law indemnity must be without fault. 45

    Contribution among joint tortfeasors is not allowed under common law. 46 The common law rule has been supplanted by statutes permitting contribution among tortfeasors. 47

    • Reimbursement

    A right to reimbursement allows an insurer to proceed against its insured. 57 "The claim for reimbursement has been analyzed as a cause of action against the claimant who has recovered from the third party." 58 "The right to reimbursement provision is a contractual set-off distinct from a subrogation action." 59 Because reimbursement has essentially the same effect as subrogation against an insured (which is generally prohibited), some jurisdictions do not distinguish between the two and disallow reimbursement. 60
    1. See Black's Law Dictionary (1998) ("subrogation"); see also Restatement (First) of Restitution 162 (1937) ("Where property of one person is used in discharging an obligation owed by another of a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien holder.").
    2. See Casualty Indem. Exch. v. Penrod Bros., 632 So. 2d 1046 (Fla. Dist. Ct. App. 1993); Motor Club Ins. Ass'n v. Fillman, 5 Neb. App. 931, 568 N.W.2d 259 (1997).
    3. See Blue Cross & Blue Shield, Inc. v. Matthews, 498 So. 2d 421 (Fla. 1986); Mayer v. Wylie, 229 Ga. App. 282, 494 S.E.2d 60 (1997); 16 George J. Couch et al., Couch on Insurance 61:2 (2d rev. ed. & Supp. 1997).
    4. See Continental Ins. Co. v. Kennerson, 661 So. 2d 325 (Fla. Dist. Ct. App. 1995); Grinnell Mut. Reinsurance Co. v. Recker, 561 N.W.2d 63 (Iowa 1997).
    5. See Muskogee Title Co. v. First Nat'l Bank & Trust Co., 894 P.2d 1148 (Okla. Ct. App. 1995).
    6. See Black's Law Dictionary (1998) ("subrogation").
    7. See Id.
    8. See Dixie Nat'l Bank v. Employers Commercial Union Ins. Co. of Am., 463 So. 2d 1147 (Fla. 1985); Shumpert v. Time Ins. Co., 329 S.C. 605, 496 S.E.2d 653 (Ct. App. 1998); see also Jorge v. Travelers Indem. Co., 947 F. Supp. 150 (D.N.J. 1996) ("Subrogation rights are created in one of three ways: (1) an agreement between the insurer and the insured, (2) a right created by statute, or (3) a judicial device of equity to compel the ultimate discharge of an obligation by one who in good conscience ought to pay it."); see generally 16 George J. Couch et al., Couch on Insurance 61:2 (2d rev. ed. Supp. 1997) ("An insurance carrier, upon payment of a loss, becomes subrogated to the rights and remedies of its assured to proceed against a party primarily liable without the necessity of any formal assignment or stipulation.").
    9. See Horton v. Ford Life Ins. Co., 246 Neb. 171, 518 N.W.2d 88 (1994); Commercial Union Ins. Co. v. Postin, 610 P.2d 984 (Wyo. 1980); see also Cureton v. Frierson, 41 Ark. App. 196, 850 S.W.2d 38 (1993) ("Generally speaking, one is a volunteer if, in making payment, he has no right or interest of his own to protect, and acts without obligation, moral or legal.").
    10. See Security Ins. Co.-Conn. Indem. Co. v. Mangan, 250 Md. 241, 242 A.2d 482 (1968); City of Detroit v. Bridgeport Brass Co., 28 Mich. App. 54, 184 N.W.2d 278 (1970). But cf. Dixie Nat'l Bank v. Employers Commercial Union Ins. Co. of Am., 463 So. 2d 1147 (Fla. 1985) (suggesting distinction significant in determining source of right and not delineating parameters of remedy). See generally 73 Am. Jur. 2d Subrogation 2 (1974) (identifying other distinctions).
    11. See McCarter v. Alaska Nat'l Ins. Co., 883 P.2d 986 (Alaska 1994); Skauge v. Mountain States Tel. & Tel. Co., 172 Mont. 521, 565 P.2d 628 (1977).
    12. See Capitol Indem. Corp. v. Strike Zone, 269 Ill. App. 3d 594, 646 N.E.2d 310, 206 Ill. Dec. 943 (1995); Security Ins. Co.-Conn. Indem. Co. v. Mangan, 250 Md. 241, 242 A.2d 482 (1968); cf. Shelter Ins. Cos. v. Frohlich, 243 Neb. 111, 498 N.W.2d 74 (1993) ("unless an insurance policy contains a provision to the contrary, an insurer's right to recovery under a subrogation clause . . . requires that the insured must have been fully compensated"). But cf. Franklin v. Healthsource of Ark., 328 Ark. 163, 942 S.W.2d 837 (1997) ("an insurer is entitled to enforce its contractual right of subrogation after the insured has been fully compensated").
    13. See Newell v. Taylor, 212 Or. 522, 321 P.2d 294 (1958); Livingston v. Shelton, 85 Wash. 2d 615, 537 P.2d 774 (1975).
    14. See Ohio Cas. Group of Ins. Cos. v. Royal-Globe Ins. Cos., 413 N.E.2d 678 (Ind. Ct. App. 1980); Robert Simmons Constr. Co. v. Birmingham Fire Ins. Co., 411 S.W.2d 479 (Ky. 1966).
    15. See Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 672 A.2d 939 (1996); Jindra v. Diederich Flooring, 181 Wis. 2d 579, 511 N.W.2d 855 (Wis. 1994).
    16. See 6A John Alan Appleman & Jean Appleman, Insurance Law & Practice 4052 (West 1972); 16 Couch, supra note 8, at 61:19; cf. La. Civ. Code Ann. art. 1829 (1987) (codifying subrogation by operation of law).
    17. See generally 73 Am. Jur. 2d Subrogation 35 (1974).
    18. See Commercial Standard Ins. Co. v. Hitson, 73 N.M. 328, 388 P.2d 56 (1963); Employers Mut. Liab. Ins. Co. v. Melcher, 378 Pa. 598, 107 A.2d 874 (1954); see also Standard Accident Ins. Co. v. Pellecchia, 15 N.J. 162, 104 A.2d 288 (1954) ("[I]n the absence of [a] double recovery by the insured the third party would go free despite the fact that he has the legal obligation in connection with the loss or damage.").
    19. See First Am. Title Ins. Co. v. First Title Serv. Co., 457 So. 2d 467 (Fla. 1984); Winkelmann v. Excelsior Ins. Co., 85 N.Y.2d 577, 626 N.Y.S.2d 994, 650 N.E.2d 841 (1995).
    20. See Standard Accident Ins. Co. v. Pellecchia, 15 N.J. 162, 104 A.2d 288 (1954); Borough of Wilkinsburg v. Trumbull-Denton Joint Venture, 390 Pa. Super. 580, 568 A.2d 1325 (1990).
    21. See, e.g., Ariz. Rev. Stat. Ann. 23-1023 (workers' compensation); Fla. Stat. Ann. 768.31 (Uniform Contribution Among Tortfeasors Act); see generally 16 Couch, supra note 8, at 61:6 (collecting cases).
    22. See, e.g., Fla. Stat. Ann. 768.76 (limiting insurers' ability to pursue subrogation damages); 75 Pa. Cons. Stat. Ann. 1720 (prohibiting subrogation relating to maintenance or use of motor vehicles); see generally 16 Couch, supra note 8, at 61:6 (collecting cases).
    23. See, e.g., Kan. Admin. Regs. 40-1-20 (forbidding medical, surgical, hospital or funeral coverage subrogation).
    24. See Franklin v. Healthsource of Ark., 328 Ark. 163, 942 S.W.2d 837 (1997); Continental W. Ins. Co. v. Swartzendruber, 253 Neb. 365, 570 N.W.2d 708 (1997).
    25. See Blue Cross/Blue Shield v. St. Cyr, 123 N.H. 137, 459 A.2d 226 (1983); Wine v. Globe Am. Cas. Co., 917 S.W.2d 558 (Ky. 1996); see also Old Colony Ins. Co. v. Jeffrey's Mill & Warehouse, 146 F. Supp. 277 (N.D. Cal. 1956) (applying maxim, expressio unius est exclusio alterius).
    26. See Wine v. Globe Am. Cas. Co., 917 S.W.2d 558 (Ky. 1996); Continental W. Ins. Co. v. Swartzendruber, 253 Neb. 365, 570 N.W.2d 708 (1997); see also Esparza v. Scott & White Health Plan, 909 S.W.2d 548 (Tex. App. 1995, writ denied) (refusing to enforce "a boiler-plate provision in an insurance contract that purports to entitle the insurer to subrogation out of the first monies received by the insured"); Ryan v. Sigmund, 191 Wis. 2d 178, 528 N.W.2d 43 (Ct. App. 1995) ("Whether an insurer is claiming rights under the insurance contract, or under rules of equity, the entire law of subrogation is based on equitable principles.").
    27. See Pendlebury v. Western Cas. & Sur. Co., 89 Idaho 456, 406 P.2d 129 (1965); Remy v. Michael D's Carpet Outlets, 391 Pa. Super. 436, 571 A.2d 446 (1990), appeal dismissed sub nom. Kimco Dev. Corp. v. Michael D's Carpet Outlets, 536 Pa. 1, 637 A.2d 603 (1994) (on rehearing).
    28. See Travelers Ins. Cos. v. Dickey, 799 P.2d 625 (Okla. 1990); Safeco Ins. Cos. v. Weisgerber, 115 Idaho 428, 767 P.2d 271 (1989). But cf. United States Fidelity & Guar. Co. v. CNA Ins. Cos., 208 A.D.2d 1163, 618 N.Y.S.2d 465 (1994) ("antisubrogation rule does not apply where distinct and separate insurance policies are involved"); Commerce & Indus. Ins. Co. v. Admon Realty, Inc., 168 A.D.2d 321, 562 N.Y.S.2d 655 (1990) ("insurer is barred from subrogation only to the extent of property in which the additional insured has an interest").
    29. See, e.g., Mt. Hawley Ins. Co. v. Azia Contractors, 886 S.W.2d 640 (Mo. Ct. App. 1994).
    30. See, e.g., Minn. Stat. Ann. 60A.41.
    31. See 16 George J. Couch et al., Couch on Insurance 61:1 (2d rev. ed. & Supp. 1997) ("Right of subrogation permits insurer to stand in shoes of insured and assert action and rights available to insured, while right of reimbursement allows insurer to proceed only against insured.").
    32. See Black's Law Dictionary (1998)("assignment").
    33. Western Cas. & Sur. Co. v. Bowling, 39 Colo. App. 357, 565 P.2d 970 (1977). See also Hospital Serv. Corp. v. Pennsylvania Ins. Co., 101 R.I. 708, 227 A.2d 105 (1967) ("Assignment involves dangers of champerty and maintenance. Subrogation does not.") (noting distinctions).
    34. See Haley v. Posdal, 201 Ill. App. 3d 963, 559 N.E.2d 1083, 147 Ill. Dec. 743 (1990); Klein v. General Elec. Co., 714 S.W.2d 896 (Mo. Ct. App. 1986).
    35. See Wine v. Globe Am. Cas. Co., 917 S.W.2d 558 (Ky. 1996); cf. Youngblood v. American States Ins. Co., 262 Mont. 391, 866 P.2d 203 (1993) ("The 'blurring' of the distinction between assignment and subrogation, in our decisions . . . was unfortunate."); see generally 16 Couch, supra note 8, at 61:94-95 (defining and distinguishing assignment and subrogation).
    36. 16 Couch et al., supra note 8, at 61:96 (2d rev. ed. 1983).
    37. See United States Fidelity & Guar. Co. v. Oak Grove Union Sch. Dist., 205 Cal. App. 2d 226, 22 Cal. Rptr. 907 (Dist. Ct. App. 1962); Gombert v. George C. Fuller Contracting Co., 285 A.D. 1053, 139 N.Y.S.2d 464 (1955).
    38. See Schweiss v. Sisters of Mercy, St. Louis, 950 S.W.2d 537 (Mo. Ct. App. 1997); Hospital Serv. Corp. v. Pennsylvania Ins. Co., 101 R.I. 708, 227 A.2d 105 (1967).
    39. See Blue Cross & Blue Shield, Inc. v. Matthews, 498 So. 2d 421 (Fla. 1986); National Union Fire Ins. Co. v. Grimes, 278 Minn. 45, 153 N.W.2d 152 (1967); compare Nationwide Mut. Ins. Co. v. Dairyland Ins. Co., 191 W. Va. 243, 445 S.E.2d 184 (1994) (stating health insurers' subrogation for medical payments is not impermissible assignment of personal injury claim) with State Farm Fire & Cas. Co. v. Knapp, 107 Ariz. 184, 484 P.2d 180 (1971) (refusing to allow automobile medical payments subrogation); see generally Allan E. Korpela, Annotation, Right of "Blue Cross" or "Blue Shield," or Similar Hospital or Medical Service Organization, to Be Subrogated to Certificate Holder's Claims Against Tortfeasor, 73 A.L.R.3d 1140 (1977 & Supp. 1997); J.A. Bock, Annotation, Subrogation Rights of Insurer Under Medical Payments Provision of Automobile Insurance Policy, 19 A.L.R.3d 1054 (1969); Eugene G. Beckham, Subrogation of Automobile Medical Payments in Florida, 18 Trial Advoc. Q. 8 (1998) (explicating caselaw and statutes).
    40. State Farm Mut. Ins. Co. v. Farmers Ins. Exch., 22 Utah 2d 183, 450 P.2d 458 (1969) (footnotes omitted).
    41. See Black's Law Dictionary (1998) ("contribution").
    42. See Id. ("indemnity").
    43. Compare Kan. Stat. Ann. 60-2413 (authorizing contribution and indemnity among judgment debtors) with Iowa Code Ann. 123.94 (prohibiting contribution and indemnity for dramshop violations).
    44. See Tiffiny Decorating Co. v. General Accident Fire & Life Assurance Corp., 12 Ill. App. 3d 597, 299 N.E.2d 378 (1973); see also George M. Brewster & Son v. Catalytic Constr. Co., 17 N.J. 20, 109 A.2d 805 (1954) ("Indemnity arises from contract, express or implied.").
    45. See Mullen v. Cogdell, 643 N.E.2d 390 (Ind. Ct. App. 1994); Echevarias v. Lopez, 240 N.J. Super. 104, 572 A.2d 671 (App. Div. 1990).
    46. See Sprinkle v. Burlington N.R.R., 236 Mont. 383, 769 P.2d 1261 (1989); Merrill v. Trenn, 706 A.2d 1305 (R.I. 1998).
    47. See Fla. Stat. Ann. 768.31; Wash. Rev. Code Ann. 4.22.005-925; see generally Unif. Comparative Fault Act (1977); Unif. Contribution Among Tortfeasors Act (1955).
    48. See Kerschner v. Weiss & Co., 282 Ill. App. 3d 497, 667 N.E.2d 1351, 217 Ill. Dec. 775 (1996); Slocum v. Donahue, 44 Mass. App. Ct. 937, 693 N.E.2d 179 (1998).
    49. See Piper Aircraft Corp. v. Dumon, 421 Mich. 445, 364 N.W.2d 647 (1984); Swanigan v. State Farm Ins. Co., 99 Wis. 2d 179, 299 N.W.2d 234 (1980); see also Chenery v. Agri-Lines Corp., 115 Idaho 281, 766 P.2d 751 (1988) ("[I]t is more appropriate to use the term 'indemnity' in referring to a claim for 100 percent reimbursement and the term 'contribution' in referring to a claim for partial reimbursement.").
    50. See Chenery, 115 Idaho 281, 766 P.2d 751; Milwaukee Mut. Ins. Co. v. Priewe, 118 Wis. 2d 318, 348 N.W.2d 585 (Ct. App. 1984); see also Ashley v. Evangelical Hosps. Corp., 230 Ill. App. 3d 513, 594 N.E.2d 1269, 171 Ill. Dec. 749 (1992) ("Both indemnity and contribution arise out of the same principle of restitution or unjust enrichment.").
    51. Compare American Motorcycle Ass'n v. Superior Court, 20 Cal. 3d 578, 578 P.2d 899, 146 Cal. Rptr. 182 (1978) ("[W]e conclude the doctrine [of common law equi (1978) ("[W]e conclude the doctrine [of common law equitable indemnity] should be modified to permit partial indemnity among concurrent tortfeasors on a comparative fault basis.") and Schneider Nat'l, Inc. v. Holland Hitch Co., 843 P.2d 561 (Wyo. 1992) ("We adopt a system of comparative partial indemnity for equitable implied indemnity actions premised on negligence.") and Chenery, 115 Idaho 281, 766 P.2d 751 ("The terms 'indemnity' and 'contribution' are often used interchangeably.").
    52. See Pafco Gen. Ins. Co. ex rel. World Office Prods. Mfg. v. Wah-Wai Furniture Co., 701 So. 2d 902 (Fla. Dist. Ct. App. 1997); Northern Utils. Div. of KN Energy, Inc. v. Town of Evansville, Wyo., 822 P.2d 829 (Wyo. 1991); see also Chenery, 115 Idaho 281, 766 P.2d 751 ("[T]he right of one party who has satisfied a claim to seek repayment from another party, can be pursued on any one of three interrelated common law principles: indemnity, contribution, or subrogation.").
    53. See Telegraph Herald, Inc. v. McDowell, 397 N.W.2d 518 (Iowa 1986); Reddington v. Beefeaters Tables, Inc., 72 Wis. 2d 119, 243 N.W.2d 401 (1976).
    54. See Newell v. Taylor, 212 Or. 522, 321 P.2d 294 (1958); Livingston v. Shelton, 85 Wash. 2d 615, 537 P.2d 774 (1975).
    55. See Hanover Ins. Co. v. Fireman's Fund Ins. Co., 217 Conn. 340, 586 A.2d 567 (1991); Employers Cas. Co. v. Transport Ins. Co., 444 S.W.2d 606 (Tex. 1969).
    56. See Frew v. Scoular, 101 Neb. 131, 162 N.W. 496 (1917); Central Banking & Sec. Co. v. United States Fidelity & Guar. Co., 73 W. Va. 197, 80 S.E. 121 (1913). But cf. Perkins v. Worzala, 31 Wis. 2d 634, 143 N.W.2d 516 (1966) ("[I]t is incongruous to concede that contribution is available and yet maintain that subrogation would not be.")
    57. See 16 Couch, supra note 8, at 61:9; see also Black's Law Dictionary (1998) ("With respect to a surety, the common-law right to get indemnity, or otherwise recoup, from the principal debtor the value of the surety's performance in satisfying the principal debtor's duty.") ("reimbursement"); cf. Continental W. Ins. Co. v. Swartzendruber, 253 Neb. 365, 570 N.W.2d 708 (1997) ("a right to reimbursement is encompassed within the concept of subrogation").
    58. American Gen. Fire & Cas. Co. v. J.T. Constr. Co., 106 N.M. 195, 740 P.2d 1179 (Ct. App. 1987).
    59. Maynard v. State Farm Mut. Auto. Ins. Co., 902 P.2d 1328 (Alaska 1995).
    60. See Complete Health, Inc. v. White, 638 So. 2d 784 (Ala. 1994); Ilg v. Andrews, 10 Wash. App. 936, 520 P.2d 1385 (1974); see also Esparza v. Scott & White Health Plan, 909 S.W.2d 548 (Tex. App. 1995, writ denied) (refusing to enforce "a boiler-plate provision in an insurance contract that purports to entitle the insurer to subrogation out of the first monies received by the insured").

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