Editing Subrogation (section)

===Indemnity insurer's subrogation rights===
"Subrogation" has been used in this context to refer to two distinct situations.

First, after paying out under a policy of indemnity insurance, an insurer may be entitled to stand in the shoes of the insured and enforce the insured's rights against the third party tortfeasor who is responsible for the loss.<ref>''Mason v Sainsbury'' (1782) 3 Dougl KB 61; ''Morris v Ford Motor Co'' [1973] QB 792</ref> This is subrogation in its proper or core sense. Insurance subrogation, and, specifically, the types and amounts of payments that can be recovered, differs from jurisdiction to jurisdiction.

Secondly, after paying out under a policy of indemnity insurance, an insurer may be entitled to sue the insured where the insured has already had his loss made good by the third party tortfeasor. That is, the insurer has a claim against the insured so as to ensure that the insured does not get double recovery.<ref>''Castellain v Preston'' (1883) 11 QBD 380; ''Re Miller, Gibb & Co'' [1957] 1 WLR 703</ref> This situation might arise if, for example, an insured claimed in full under the policy, but then started proceedings against the third party tortfeasor, and recovered substantial damages.<ref>In practice there are many reasons why an insured may do this; to recover a related uninsurable loss, to establish a defence to other claims against the insured. However, in each case the law requires them to return the amount of any compensation received in respect of which they have also received insurance payments to the insurer.</ref> Strictly speaking, this is not a case of subrogation; it is a case of recoupment.