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22 La. L. Rev. 225 (1961-1962)
The Role of Subrogation by Operation of Law and Related Problems in the Insurance Field

handle is hein.journals/louilr22 and id is 235 raw text is: COMMENTS greatly increase litigation, then the remedy would not be worth the treatment. Conclusions In the reported cases, the courts have protected the insurer's freedom to distribute the policy proceeds among multiple claim- ants and have refused to permit claimants to protect a pro rata share. Such freedom, however, could be easily abused. The in- surer could offer a claimant the choice of accepting what the company has to offer, or risk exhaustion of the proceeds in set- tlements with other claimants who will accept the company's terms. If such a practice were widespread, or if disproportion- ate distribution were common, perhaps courts or legislatures should provide claimants with enforceable rights in the proceeds. However, it is submitted that there is insufficient evidence to indicate that these practices are commonplace. There are very few reported cases in which a claimant contests a disproportion- ate settlement. Further, there are indications that carriers go to some lengths to distribute the proceeds pro rata, lest claim- ants be permitted to preserve their shares in court. Moreover, there is a lack of agitation from text writers43 or plaintiffs' at- torneys to change the present system of free distribution by the insurer. If the freedom which the companies now enjoy is not being abused, then allowing claimants enforceable interests in the proceeds would entitle them to nothing more than they now receive. Allowing enforceable proration under any plan thus far suggested would serve needlessly to increase litigation in courts whose dockets are already overcrowded. Gerald LeVan The Role of Subrogation by Operation of Law and Related Problems in the Insurance Field Introduction Subrogation accompanies payment. Payment discharges the obligation, but the fiction of subrogation operates to continue the existence of the rights, privileges, and powers of the former 43. Professor Keeton does not suggest commonplace abuse by the insurance companies. He only suggests that the company's duty to the insured and its obligations to the claimant be consistent. Id. at 28. 19611

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