Subrogation, a right of recovery conferred by equity, contract or statute, stands alongside contribution and indemnity as one of the three most important doctrines of risk transfer. The doctrine of subrogation is centuries old and is said to have roots that date back to the Roman laws of the 13th century or possibly much earlier.
Most insurance policies contain a subrogation clause that confers a right of subrogation on the insurer. Waivers of subrogation rights may be an important aspect of insurance settlement negotiations. Nevertheless, subrogation is an often overlooked doctrine that rarely makes it into the spotlight. In the last few years, however, insurance disputes concerning subrogation rights related to claims under the Comprehensive Environmental Response Compensation Liability Act (CERCLA) have yielded several interesting decisions. As a result, a primer on subrogation and a discussion of those CERCLA cases is timely and worthwhile.
