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SUBROGATION -Does insurer waive subrogation rights when insured is not correctly identified nor made whole?

Irvine, CA |

A Residential policy was issued covering a named insured and non-occupant additional insured. Named insureds damages are denied, however, payment for ALE and Content are made to additional insured who made no claim for such. Insurers recovery from negligent third party claimed monies paid out covered both insureds losses. I recently read a case, Essex v. Heck 186 Cal. App. 4th 1513; 112 Cal. Rptr. 3d 915; 2010 Cal. App, where the court denied subrogation, stating that Essex only had the right to assert claims for monies paid out on behalf of its insured. Does the same apply to a first party claim? Is an insurer obligated to correctly identify the amount paid to each insured for their respective losses and can an insurer name both insureds in their recovery when only one was paid?

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Attorney answers 2


I doubt that Essex v. Heck would apply to your situation. Essex was an equitable subrogation case, and yours is a first party claim where benefits were apparently paid to the wrong insured (the "additional insured") rather than to you, the primary named insured. Therefore it does not sound like your issue involves any "waiver of subrogation rights." If the insurance company made a mistake and incorrectly compensated an additional insured (AI) who had no damage - and therefore no valid claim - then the insuror may well (still) owe the primary insured. However, you say that the "named insureds damages are denied." This is puzzling, because typically the AI's coverage is no broader than that of the named insured. More information is needed, and I recommend you briefly consult a coverage lawyer in your area. Bring the policy and written communications with the insuror.

This response is intended to provide general legal information rather than specific legal advice, and does not create an attorney-client relationship.


You should do some research on the made whole rule. Typically if you as the insured are not 'made whole' the insurance company cannot assert their subrogation/recovery rights. That being said, there are a host of exceptions that become very complex. Unfortunately this forum is not appropriate to discuss each. I would consult with an attorney to review the claim, the recovery and other facts that may assist you in making this argument. Best of luck.

I am licensed in California, therefore, my answers are based on general prinicpals of law or California law, which may not be applicable in your jurisdiction. Answers posted to Avvo are for general information only. Do not conclusively rely on any information posted online when deciding what to do about your case. Every case depends is fact dependent, and responses are limited to and is based on the information you posted. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.

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