In Wausau Underwriters Ins. v. Shisler, (E.D. Pa. July 19, 1999), plaintiff insured the owner (Halpern) and lessee (Green) of a building that was damaged in a fire allegedly due to the negligence of a foreman (Shisler). Plaintiff fully paid the insurance claims of both the owner and lessee and commenced a subrogation action against the foreman.
The foreman filed a third-party complaint against both the owner and lessee, who then filed a motion to dismiss the third-party complaint.
In granting the motion, the court held that because the plaintiff insurer had paid the total loss incurred by the owner and lessee, any finding of liability against diem only served to eliminate or to reduce the insurer's recovery from the foreman (id. at 10):
"Any finding of responsibility on the part of Green and/or Halpern does not create a liability to Wausau, but rather, would merely serve to eliminate or reduce Wausau's recovery from Shisler. In other words, Green and Halpern can never be liable to pay damages to Shisler for the losses, which were actually sustained by Green and Halpern. As an insurer cannot subrogate against its own insured, Wausau has no claim against Green or Halpern for which either could be liable."