When the insurer pays compensation in damage insurance, it is substituted in the rights of the insured against the people involved in the occurrence of the accident.
Subrogate means that a person is put in place of another, that is, is replaced in the rights and obligations that you have.
Regarding the insurance contract, the subrogation proceeds against the insurer who pays an immunization with respect to those responsible who caused the accident or event that gave rise to the payment of compensation.
That is, the insurer is the one who is empowered to sue the cause of the loss that caused the damage or harm to the insured.
When does subrogation run in the insurance contract?
The subrogation of the insurer on the rights of the insured against those responsible for the loss, as expressed in article 1096 of the commercial code, is given by the ministry of law until the amount is met.
The Supreme Court of Justice, the civil court of appeal in a judgment of November 22, 2001, referred to the subrogation of the insurer in the following terms:
It is the obligation of the insured, when so requested by the insurer, to do everything possible to allow the insurer to exercise the rights derived from the subrogation, that is, the insured must facilitate the exercise of the rights acquired by the insurer in against those responsible for the occurrence of the accident.
On the other hand, regarding the effects of the appeal, once the hierarchical superior decides the appeal, he must return it to the inferior, once returned to the inferior, he must issue an order in which he will express in obedience to the superior what he resolved.
In the case of the appeal granted in the deferred and returnable effect, if the order is revoked, all the action subsequent to the admission of the appeal will be without effect in that which depends on the revocation.
Example in insurance subrogation.
To better understand the concept of subrogation in the insurance contract, let us assume the following example:
Juan has insurance against traffic accidents and driving to work a truck cuts him off causing damage to the car.
When the insurer pays Juan for the damage caused to his vehicle, the insurer is subrogated to his rights, that is, to the right to ask the owner of the truck to respond for the amount he paid for the damage to the car.
In other words, Juan cannot sue the owner of the truck to pay him for the damages, since Juan’s insurer has already done so, and the right to claim the owner of the truck belongs to the insurer that paid for the damage.
Now, the subrogation reaches the concurrence of the compensated damage. For example the damage that the truck caused to Juan was $10,000,000 and Juan’s insurer only paid $6,000,000.
In this case, the insurer subrogates the right to claim from the truck owner up to the amount paid, that is, $6,000,000, leaving Juan with the right to claim the surplus directly from the owner of the truck, that is, the sum of $4,000,000.
A non-subrogation clause implies precisely that whoever pays the compensation does not subrogate the rights of the indemnified party, which is not common in insurance contracts.
If there is such a clause, who should sue the party responsible for the claim is the person affected by that claim and not the person who has paid the damages or who does not make much sense in the insurance contract, neither for the insurer nor for the insured.