What is Subrogation?
Some legal terms can be confusing until they are explained in depth with real-life examples, one such term is ‘Subrogation’.
You must have heard about it or even been subrogated yourself, but do you know what it is?
Let’s get one thing perfectly clear, insurance carriers don’t pay your bills out of the goodness of their heart, they hold the authority to subrogate any party because of whom they had to pay the insured.
Subrogation is a way where they get paid for the expenses they covered for your claim by a third-party, it allows them to recover the cost they used and keep running.
Still not clear?
Let’s find out more about Subrogation and understand it with illustrations from the real world.
If you find the word ‘Subrogation’ scary, you’re not alone. It is an unfair repayment if you think about it, the insurance company that collects payments from you year after year diminishes the settlement that you’d get without them interfering with the individual or organization (at-fault party) that caused you harm.
Breaking down the concept of subrogation can help you understand better, so let’s do that and make sure you’re on the same page.
Subrogation refers to one person (generally the insurance company) standing in place of another (the insured) to get the premiums from the at-fault party.
The insurance carrier takes on your burden during a crisis and then seeks repayment of funds it provided you with from the individual responsible for the damage.
There is, however, one downside to the subrogation process, if the insured individual (seeking the benefits from the firm to pay bills) wishes to file a lawsuit against the person at fault, the settlement amount decreases significantly as the insurance company has already claimed it on your behalf.
This is not illegal because of the ‘subrogate clause’ included in the insurance company’s policy which you sign and accept at the time of applying for insurance.
In the case of accidents, car insurance covers the cost of your totalled car relieving you from the debt but the company, in turn, files a lawsuit against the at-fault driver because of which the accident occurred in the first place.
When this happens and the insurance company successfully recovers what it pays, it must then uniformly be distributed among the carrier and insured parties for any deductibles the insured had paid.
The subrogation process works cohesively between the insurance companies of both involved parties to come to a mutual decision legally.
It is common practice for the insurance companies to sue third parties that may have caused the loss which they had to pay.
Subrogation lets the insurer stand in place of the insured individual and take legal action against the individual or group that have caused the loss.
Here is a great video that explains the process.
STEPPING INTO THE CLIENT’S SHOES
It is often said that with subrogation the insurance company ‘steps into their client’s shoes’ and can penalize the other party which is responsible for the occurrence, for a claim that satisfied the client from the insurance company’s pocket.
This is a breakdown of how subrogation works, step-by-step in the case of a car accident.
What you must know first is that three parties are mainly involved in the subrogation process; the insured (policyholder), the insurer (the insurance company), and the party responsible for damages.
- Initially let’s assume the insured meets with an accident and their car gets totaled.
- The car insurance company covers the cost of the car for the insured (this is where the subrogation process really begins).
- After the insurance claim is filed by the insured and is successfully received, the insurance company goes after the party responsible for the damage on behalf of the policyholder.
- The insurer then recovers the expense that it paid to cover the insurer’s cost from the insurance company of the party accountable for the damage through a mutual settlement (the subrogation process ends here).
Now, let’s go through the types of subrogation followed by some examples to understand the concept without any problem.
TYPES OF SUBROGATION
It is a misconception that only insurance companies hold subrogate rights, there are many cases where a person can be subjected to subrogation which don’t include insurance companies.
Subrogation is a right which can arise in three different and very definitive ways; Equitable Subrogation, Contractual Subrogation, and Statutory Subrogation.
Let’s discuss these types distinctively and comprehend the process of subrogation in different scenarios better.
Equitable Subrogation is a right that the paying party has to recover from the non-paying party basically.
It allows one party to replace another party for a legal right and is linked with insurance companies during claim settlements most of the time.
It is called ‘equitable’ because one party pays what must be paid by another.
The obligatory party which pays the obligation is called the ‘Subrogee’ whereas the party whose claim is being paid is the ‘Subrogor’.
Equitable Subrogation is one of the main elements in the modern-day insurance policies along with the claims and processes associated with them.
In most cases, there is a third party involved but, in a few cases, the damages that are caused cannot be traced to a responsible party, such as during floods and hurricanes.
At such times, the insurer cannot file a lawsuit against any third-party making subrogation unnecessary and a waste of resources and damages occurred during such events are often listed as not claimable damages in the initial contract for the insured.
Equitable Subrogation is often applicable in situations (theoretically not practically) where one party is liable for the loss, but the insurance company is not obliged to pay for the loss from its own pocket, it can recover the covered cost from the third-party.
Let’s go on to the second type of subrogation, Contractual Subrogation.
Contractual Subrogation and Conventional Subrogation
Contractual Subrogation mostly deals with relationships between the insured, insurer, and the third party and is also called as ‘Conventional Subrogation’.
Like any other kind of subrogation, contractual subrogation also is a legal right related to insurance policies where the insurer (insurance company) gets to stand in the policyholder’s shoes to file a legal lawsuit after the insured (policyholder) is granted a claim by the company.
After that, the policyholder has forfeited his right to sue the third-party to the insurer to recover their loss.
However, at times the insured may not want to pursue the third-party offender due to personal reasons but with contractual subrogation, the at-fault individual is dealing with the insurance company that is now legally standing in place of the insured and will be filing a lawsuit without respect to the relationship between the insured and the offender.
Say, for example, you file for home insurance with any insurance company and entitle it with contractual subrogation.
If you’re having a party with family and friends, and something goes wrong due to the fault of a friend’s child and the house catches fire.
You will in such a case contact the insurance company to pay for the repairs and the insurer will be paying, however, you will not want to go after your friend to pay for the damage caused, but the insurance company definitely will without being concerned about spoiling your relationship with the friend.
The insurance company will only be interested in getting repaid for the loss it covered.
Let’s carry on to the last type – Statutory Subrogation.
As the name suggests, this type of subrogation is implied ‘statutorily’ without involving any premiums to be paid to an insurance company. It is an act that gives a party or a group of parties the right to subrogation.
The most common example to understand this concept better is by considering the Texas Workers’ Compensation Law, an insurance program that is managed by the state of Texas.
At times workers meet with accidents during work and are injured, this law is for the workers at these times.
It requires the Texas employers (most of them) to pay for the medical treatment of the employee and provide his salary in the worker’s absence for a certain period.
Based on the Texas Workers’ Compensation Act, the employer is given the benefit that the worker cannot sue him if he covers the cost without fail.
Statutory subrogation works seamlessly without involving any unnecessary claims or the insurance company stepping into the policyholder’s shoes which makes it more straightforward than the other two types of Subrogation, in which disputes are common but with statutory subrogation, disputes are not so common.
Basically, all types of subrogation are rights that are held by insurers and the policyholders to take legal action against the at-fault party and get a settlement from the third party’s insurance company.
Here is why subrogation is important followed by some instances that will help you to grasp the notion of subrogation and the different types that come with it clearly.
IMPORTANCE OF SUBROGATION
For one, successful subrogation leads to lower insurance premium rates charged by the insurance company.
The insurance companies calculate their premium charges based on the net costs which include the amount it recovers during subrogation.
So, if the insurer had 300 customers and experiences around $30,000 in claims and settlements, then the insurance company will set its premium rates to $300 to avoid loss.
But with better settlements during subrogation, the company can cut its premium rates down to $250 without facing any loss which when simply put means you will be saving $50.
An insurance policy allows you to minimize the damaging effect when a risk occurs as the insurance company covers the cost at the time of accidents which are caused by third-parties. With a better Subrogation Clause, the insurance company can cover more costs at the time of need which makes them very important.
So, lower premium rates were the financial upside of subrogation but what about the ethical upside?
With subrogation, the loss is paid by the party at-fault or in a sense, the ‘wrongdoer’ making it a moral choice. It places the burden of the cost on the responsible party rather than the person facing the evitable damage or injury which is only fair.
Another possible benefit of this doctrine is that the insured gets exactly what they bargained for in the insurance policy and not more than that (neither less).
Which means that the insured cannot claim the benefits of recovering the cost twice, once from the insurance company and the second time by suing the wrongdoer in the court of law, Subrogation ensures a reasonable settlement.
Although, if you wish you can exclude the subrogation clause from the agreement completely and deny the insurance company the right to stand in your place legally.
This would, as a result, leave you with higher premium rates for the insurance policy that excludes the subrogation clause.
Let’s discuss this concept in detail which is called a ‘Waiver of Subrogation’.
WAIVE A SUBROGATION
A waiver of subrogation is a contract within the insurance policy which waives off the right of the insurer to go after the party responsible for their loss and the policyholder’s damage.
Naturally, the insurance companies charge extra for waiving off the subrogation clause in the agreement as it revokes their right to go after the negligent party to recover their loss.
By default, a right to subrogation allows the insurance carrier to stand in proxy for the insurance holder after it has paid the policyholder’s claim and recover the cost from the responsible party.
When the subrogation is waived, the insurer (insurance company) is prone to greater risks as it cannot recoup from the loss it suffers after the client (policyholder) has claimed the amount from them.
Often tenants come across the term ‘waiver of subrogation’ if they have a renter’s insurance, but rarely know what it means.
Firstly, a renter’s insurance is mandatory for any tenant who wants to be prepared for unlikely losses in the future, in case of accidents such as a fire or anything which can be caused by a third party and does not wish to pay for replacing everything from his own pocket.
When you get the added benefit of waiving off the subrogation clause then that will cost you more as the company cannot recover from what it will pay you during calamities.
Now let’s go through a brief example to understand this situation better.
Suppose you are a tenant with renter’s insurance, and you meet with an accident due to the ceiling fan falling on you due to negligence by the landlord.
In such a case, the insurance company is legally bound to cover your expenses and at the same time stand in your place by suing the landlord or coming to a reasonable settlement with their insurance company.
However, when you revoke their right to subrogation with a ‘Waiver of Subrogation’ they cannot go after the landlord and are more prone to a loss than without a waiver.
Getting a waiver of subrogation is the best option if you want to prevent the insurance company from going after friends and family members that could be responsible for an insurance claim.
Without contacting your insurance company, you cannot decide of not suing the individual responsible for the damage caused under the subrogation clause in your insurance policy, if you make an agreement with the third-party to not sue them you are in turn violating that agreement with your insurer.
For this, the insurer can drag you to the court unless you pay them compensation which will definitely be more than what they would have initially recovered from the third-party.
Now that we know what Subrogation is let’s go through a few case studies which involve the subrogation right.
Case Study 1: Commercial Water Loss – Montana – Mediated Settlement
This example for subrogation involves a sports good store, which underwent a huge loss due to the malfunctioning of a water sprinkler in the middle of the night.
This mishap involved a lot of entities, like an alarm system which failed to notify the company on time, and the security company which failed to notice the water during their regular night inspections.
The sprinkler system was, in fact, replaced just a few weeks prior to the occurrence.
It was later found that the water sprinkler company and the alarm system company were both a part of the same corporation, making them one of the parties at-fault and the other being the on-site security agency that failed to report the water coming out of the store which could have minimized the loss.
This resulted in the sports good store petitioning against these two companies getting compensated for the loss it faced through a mediated settlement without going to the court.
Case Study 2: Workers Compensation and Subrogation
Workers compensation cases can be tricky and often the employers try to find ways to avoid paying for the accident.
Let’s take a look at such a case through this instance where an employee met with a motor accident on his way to work.
A Society Insurance senior claims adjuster was informed of the incident as it is the general practice in workers compensation cases.
The employee was injured and needed to go through surgery after six months, for this he submitted a claim to the employer to tend to his medical costs and an extended paid leave for disability, this is where the adjuster came in.
The adjuster worked out a settlement between the employee and the employer which concluded with the case being closed with the additional prevention that the worker could not file a claim again as the employer had accepted the settlement offer of around $2,62,000 and paid the employee, making the case fair for both the parties.
These two case studies follow different approaches to get the insured party and the insurer paid and easily allow you to understand the general idea behind the principle of subrogation.
The different types of subrogation are; equitable subrogation, contractual subrogation, and statutory subrogation.
All of these types involve the insurance company or the insurer stepping into the shoes of the policyholder in a legal situation when the policyholder must file a lawsuit against the at-fault party.
Based on personal choice, individuals can waive off the subrogation right held by their insurance company with a ‘Waiver of Subrogation’, for which the insurer charges an additional fee.
In the Workers Compensation cases, the employer pays for any injury caused to the employee while working for the company.
With the subrogation clause included in the insurance policy, the cost of the premiums you pay decreases and similarly in the case of exclusion of the subrogation clause, you must pay an additional fee and the premiums that you pay will also increase.
The Subrogation clause allows the insurance company to recover the amount it paid when you filed an insurance claim because of a third -party offender.
A waiver of subrogation does not enhance your coverage, that is a delusion that if you pay more you’ll be covered better when you need it, you’ll end up paying more and the insurance company too will not recover what it pays for your damage.
To conclude, subrogation deals with three parties which are the insurer, insured, and the at-fault party.
The insurance companies include the subrogation clause in the insurance policies so that they get repaid for the loss they covered.