Lord Napier and Ettrick v Hunter

An insurer who has paid a claim is entitled, by subrogation, to an equitable proprietary right over damages later recovered by the insured from a third party in respect of the insured loss.

Citation
[1993] AC 713
Court
House of Lords
Year
1993
Subject
Insurance Law
Topic
Coverage, causation, claims and subrogation

Facts

Lloyd's names, who had suffered heavy losses on their underwriting, were insured under stop loss policies, which indemnified them for losses above a certain level. The names later received damages from their managing agents, whose negligence had caused the losses, in a settlement. The question was whether the stop loss insurers, who had paid the names, were entitled to share in the damages, and whether they had a proprietary interest in the damages held by the names' solicitors.

Legal principle

The House of Lords held that the insurers were entitled to recover from the damages the amounts they had paid, by way of subrogation, and that they had an equitable proprietary interest in the damages, in the form of an equitable lien or charge, enforceable against the fund in the hands of the names' solicitors. Lord Templeman said that the insured must not recover more than a full indemnity, and that equity will intervene to protect the insurer's rights. The insured must first be fully indemnified for his loss, including the amount of any excess, before the insurer is entitled to recover. The case is the leading authority on the proprietary nature of the insurer's right of subrogation.

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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.

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