The Differences Between Subrogation and Contribution

In Fireman's Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th 1279, the court noted that "'it is hard to imagine another set of legal terms with more soporific effect than indemnity, subrogation, contribution, co-obligation and joint tortfeasorship.' (Quoting Herrick Corp. v. Canadian Ins. Co. (1994) 29 Cal.App.4th 753, 756.) It is also difficult to think of two legal concepts that have caused more confusion and headache for both courts and litigants than have contribution and subrogation. Although the concepts of contribution and subrogation are both equitable in nature, they are nevertheless distinct." (Fireman's Fund, at p. 1291, fn. omitted.) The Fireman's Fund court, recognizing that there are different public policies supporting the remedies of contribution and subrogation (Fireman's Fund, supra, 65 Cal.App.4th at p. 1296), explained: "Subrogation is defined as the substitution of another person in place of the creditor or claimant to whose rights he or she succeeds in relation to the debt or claim. By undertaking to indemnify or pay the principal debtor's obligation to the creditor or claimant, the 'subrogee' is equitably subrogated to the claimant (or 'subrogor'), and succeeds to the subrogor's rights against the obligor. In the case of insurance, subrogation takes the form of an insurer's right to be put in the position of the insured in order to pursue recovery from third parties legally responsible to the insured for a loss which the insurer has both insured and paid. " (Id. at pp. 1291-1292.) The Fireman's Fund court also explained: "The right of subrogation is purely derivative. An insurer entitled to subrogation is in the same position as an assignee of the insured's claim, and succeeds only to the rights of the insured. The subrogated insurer is said to ' "stand in the shoes" ' of its insured, because it has no greater rights than the insured and is subject to the same defenses assertable against the insured. Thus, an insurer cannot acquire by subrogation anything to which the insured has no rights, and may claim no rights which the insured does not have. " (Fireman's Fund, supra, 65 Cal.App.4th at pp. 1292-1293.)