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70 Mo. L. Rev. 723 (2005)
The Made Whole Doctrine: Unraveling the Enigma Wrapped in the Mystery of Insurance Subrogation

handle is hein.journals/molr70 and id is 733 raw text is: The Made Whole Doctrine: Unraveling the Enigma Wrapped in the Mystery of Insurance Subrogation Johnny C. Parker* Subrogation exists in the law as a mechanism for insurers to recover the costs of reimbursing injured insured parties. The right of subrogation is ex- tremely important to insurers. The inclusion of provisions recognizing the right of insurance companies to seek subrogation or reimbursement for pay- ments made in the event of a loss are the norm for almost every type of insur- ance contract. It is not uncommon for insurers to include both subrogation and reimbursement provisions in a policy. Consequently, every insurance company has established within its claims process a procedure for enforcing its interest in being repaid through both subrogation and reimbursement. Application of the doctrine of subrogation often occurs at the expense of the insured. As a result, the common law developed the made whole doctrine, which limits the use of subrogation prior to an insured party receiving full compensation for damages. The primary purpose of this article is to explore the made whole doctrine as the principal weapon used by contemporary courts to curb the harsh effect of contractual subrogation on the rights of the insured. Section I of this article provides an overview of the expansion and use of subrogation in various types of insurance contracts. Section II exam- ines the made whole doctrine, which has been utilized by modem courts to reign in the impact of subrogation on insured parties. This section identifies each jurisdiction that has adopted the doctrine and documents the circum- stances and conditions required for its application on a state-by-state basis. While section II provides a comprehensive discussion of the made whole rule in the context of legal and conventional subrogation, a detailed discussion of the doctrine with regards to statutory subrogation on a state-by-state, statute- by-statute basis, is beyond the scope of this article. Section III attempts to catalog the various forms of the made whole doctrine and to identify the characteristics common to the respective forms. This section also associates each form with the jurisdictions that follow it. * Professor of Law, University of Tulsa College of Law; B.A., 1982, Univer- sity of Mississippi; J.D., 1984, University of Mississippi College of Law; LL.M., 1986, Columbia University College of Law.

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