subrogation

A few of the distinctions are: subrogation secures contribution and indemnity, whereas assignment transfers the entire claim; the consideration in subrogation moves from subrogor to subrogee, whereas in an assignment the consideration flows from assignee to assignor; assignment contemplates the assignee being a volunteer, whereas subrogation rests on a contractual duty to pay; assignment normally covers but a single claim, whereas subrogation may include a number of claims over a specific period of time; subrogation entails a substitution, whereas assignment is an outright transfer.

The basis of this distinction is that in a creditor/debtor relationship, the debtor was obligated to pay even without the creation of the common-fund (the benefit to the creditor from creation of the fund is merely incidental), while in the subrogor/subrogee relationship, the subrogor was obligated to pay only if a common-fund was created.

(21) In light of this rule and the well-established principle that the subrogee stands in the shoes of the subrogor, is it appropriate to allow health insurers to intervene in these cases and demand a portion of the settlement or verdict?

If it makes sense for an injured person who has a justified fear of a defense verdict to settle the case for 50 cents on the dollar, why doesn't it make sense for the health care subrogor to do the same?

Basic contract law places a subrogee "in the shoes" of the subrogor. Whether subrogation is by law or contract, once the insurer pays the claim, it is substituted for the insured and acquires the insured's legal rights and claims, both in contract and tort, including the insured's enforcement rights.