From: Wright, Richard <rwright@kentlaw.iit.edu>
To: Gerard Sadlier <gerard.sadlier@gmail.com>
CC: Harrington Matthew P. <matthew.p.harrington@umontreal.ca>
obligations@uwo.ca
Date: 21/06/2018 15:21:05 UTC
Subject: Re: Subrogation & Litigation Question

Under traditional and justified common law principles, Gerard is correct: the availability of recovery from insurance or some other third source does not and should not affect recovery under the tort claim. These are two independent claims, in tort and contract. The insured has paid for the contract coverage (through private insurance, employment contract, or social insurance taxes) and thus he, rather than the tortfeasor, should obtain the benefit of that contract, just as he should if it were recovery under a Los Vegas bet regarding future injury or loss. This is the so-called "collateral source" rule. The insurer, however, may have (and usually does have) a subrogation claim against the tort recovery proceeds, by a term in the insurance contract (or the social insurance provisions).

However, this has been changed in many US states as one of the planks of so-called "tort reform," which allows the tortfeasor, rather than the insured, to obtain the benefit of the collateral source through reduced tort liability. Unjust and inefficient.


On Wed, Jun 20, 2018 at 7:43 PM, Gerard Sadlier <gerard.sadlier@gmail.com> wrote:
Hi Matt

As a matter of Irish law, the answer is that it should make no
difference as a matter of principle.  Whether a party is insured or
has received a pay out under an insurance policy, so that the claim is
being pursued by insurers should not be relevant to quantum.

In practice, the Court always knows if the claim is being pursued for
or on behalf of insurers.

Kind regards

Ger

On 6/20/18, Harrington Matthew P. <matthew.p.harrington@umontreal.ca> wrote:
> This might sound like a rather naïve question, but I hope colleagues will
> bear with me if it is:
>
> I am looking into the problem of subrogation and compensating advantage.
> Specifically, I`m wondering if --- at the damages phase --- it would be
> appropriate for a court to enquire as to whether (1) there is insurance, (2)
> whether the insurers have paid out prior to trial, and (3) whether the
> insurers have a right of subrogation.
>
> I`m not assuming any complicated set of facts.  Simple tort or contract
> claim.  Liability is admitted or determined.
>
> I’d appreciate any thoughts on this. And, as I say, if this is an elementary
> question the answer to which I ought to know already, I hope you`ll excuse
> my ignorance.
>
> Kind regards.
>
> Matt
>
>
>
> -----------------------------------------
> Matthew P Harrington
> Professeur
> Faculté de droit
> Université de Montréal
> 3101 chemin de la Tour
> Montréal, Québec H3T 1J7
> 514.343.6105
> www.commonlaw.umontreal.ca
> ----------------------------------------
>
>