Sapiano v. Williamsburg Nat. Ins. Co

In Sapiano v. Williamsburg Nat. Ins. Co. (1994) 28 Cal.App.4th 533, the Court stated: "We assume, as contended by appellant, that the parties could, explicitly, provide in their contract that the insurer has a priority regardless whether the insurer is first made whole." ( Sapiano, supra, 28 Cal.App.4th at p. 538, ) The Court then found that the clause at issue did not so provide: "It provides only in general terms that the rights to recover damages from another 'are transferred to us.' Although it substitutes plain language ('transferred') for legalistic jargon ('subrogated'), it is no more specific or explicit than language used in older policies stating that the insurer 'shall be subrogated' to the insured's rights against another." (Ibid., ) The Court next contrasted that provision's language with the language before the court in Samura v. Kaiser Foundation Health Plan, Inc. (1993) 17 Cal.App.4th 1284. The Court explained the provision in that case was exemplary in explicitly creating a priority exception to the "make whole" rule. That provision provided in pertinent part: ""Health Plan . . . shall be entitled to the payment, reimbursement, and subrogation . . . regardless of whether the total amount of the recover of the Member . . . on account of the injury or illness is less than the actual loss suffered by the Member. . . ."'" ( Sapiano, supra, 28 Cal.App.4th at p. 538, )