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31 SUBROGATION

Law of Insurance Contracts

Chapter 31

SUBROGATION

31-1 INTRODUCTION

When A (the insurer) has conferred a benefit (insurance money or reinstatement) on B (the insured), B may be obliged by law to transfer to A some asset, including rights to salvage in the remains of insured property,1 or to make available some right against a third party, including rights of action. This is to enable A to recoup, as far as possible, the loss or expense suffered or incurred by A in conferring the benefit on B.2 This principle applies not only to insurers3 but also, for example, to sureties and to indorsees of bills of exchange. Rights of subrogation may also in practice arise as between an injured employee and his employer who makes good the loss of earnings following an accident. Where such rights of subrogation arise in an insurance setting, that is to say where the injured party is able to make claim on a wrongdoer and thus to proceed against that wrongdoer’s liability insurer, the employer may in a cross-border matter take advantage of the more advantageous rules as to jurisdiction. On this point see Landeskrankenanstalten-Betriebsgesellschaft v Mutuelles du Mans Assurances SA.4 The CJEU has confirmed that the special rules as to jurisdiction applicable to insurance apply without assessment of the economic strength of the employer, this in the interests of certainty and predictability of the rules of jurisdiction set out now in Brussels Regulation Recast 1215/2012. See chapter 2 of this work more generally.

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