Monday, June 8, 2009

Superior Court explains difference between "subrogate" and "assign"

Apthorp v. OneBeacon Ins. Group, LLC concerns a painting that was stolen in 1976. The owner was paid for the loss by her insurer, OneBeacon. The painting was recently found and is worth significantly more than its appraised value in 1976.

Both the insurer and the estate of the insured claimed ownership of the painting. Judge Garsh found that ownership had not been transferred to the insurer.

In the agreement between the insured and the insurer, the insured "subrogate[d] all right, title and interest" in the painting to the insurer. The insurer contended that by this language title to the painting was transferred to it.

Judge Garsh disagreed. She wrote that the insurer "erroneously equates 'subrogate' with 'assign.' Subrogation means substitution, not assignment or transfer. Conflating 'subrogation' and 'assignment' as if these words are interchangeable is inconsistent with the usual and ordinary meaning of the term 'subrogate.' The general rule is well established that upon the payment of a loss the insurer is entitled to be subrogated pro tanto to any right of action which the insured may have against a third person whose negligence or wrong caused the loss.' The Latin phrase 'pro tanto' means 'to that extent.' Subrogation refers to an insurer's succession to any right of action that the insured may have against the party or parties responsible for the loss after the insurer has paid the insured's claim."

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