The Basics: Waiver of Subrogation

February 13, 2023

What is Subrogation?

Subrogation is an important concept in the world of insurance that allows insurance companies to seek reimbursement from a third party who may be responsible for causing damage or losses to an insured party. In short, it allows the insurance company to “step into the shoes” of the insured and pursue legal action to recover damages. In this way, subrogation helps to ensure that the ultimate financial responsibility for losses falls on the party who is legally liable for those losses, rather than the insurance company or policyholder. In some instances, waiving this right is required contractually. 

Why it Matters

There are situations in which subrogation may be waived, typically through a “waiver of subrogation” endorsement on a certificate of insurance, otherwise known as a COI. This type of endorsement provides that, in the event of a loss, the insurance company will not pursue subrogation against a specific third party, even if that party is found to be legally liable for the loss. Again, this is usually a requirement due to contractual obligations. 

The purpose of subrogation is to help insurers recoup losses that they have incurred as a result of paying out claims to policyholders. However, subrogation can also create conflicts of interest between the policyholder and the insurer. If the insurer has the right to pursue a third party for damages, it may be motivated to prioritize its own financial interests over those of the policyholder. For example, the insurer may be more concerned with recovering damages from the third party than with ensuring that the policyholder is adequately compensated for their losses.

Waiver of subrogation is also important because it can help to reduce the overall cost of insurance. If insurers are able to recover damages from third parties through subrogation, it may result in higher premiums for policyholders. By waiving subrogation, policyholders and insurers can potentially lower the cost of insurance.

Why Waiving Subrogation Matters

There are a few reasons why an insured party might seek a waiver of subrogation. One common reason is to maintain a good working relationship with a specific third party, such as a business partner or contractor. In these situations, the insured party may not want the possibility of a subrogation claim to damage the relationship. It shows good faith. 

Another reason why a waiver of subrogation may be sought is to ensure that a specific third party is not held financially responsible for a loss. This can be important in situations where the third party is a public entity or non-profit organization that may not have the financial resources to pay a subrogation claim.

These waivers are often seen in construction contracts, landlord/tenant lease contracts, and automobile insurance policies.

It’s also important to note that waiver of subrogation is a two-way street—it also protects the third party from potential liability and unexpected financial burden caused by the insured.

In addition to the financial benefits, waiver of subrogation can also help to facilitate the resolution of disputes. If a policyholder and a third party are both pursuing damages from the same incident, it can lead to costly and time-consuming legal battles. By waiving subrogation, policyholders and insurers can avoid this situation and resolve disputes more efficiently.

It is important for any business or organization that obtains a certificate of insurance to carefully review the terms of the waiver of subrogation endorsement to ensure that it fully understands the scope of the waiver and the parties to whom it applies.

What to Look Out For

When reviewing a certificate of insurance, there are a few key things to look for in relation to the waiver of subrogation endorsement:

  • Parties covered: The waiver of subrogation endorsement should clearly state the parties to whom the waiver applies. This could include specific third parties, such as business partners or contractors, or more general categories of parties, such as “additional insureds.”
  • Scope of the waiver: The endorsement should also clearly state the scope of the waiver, including the types of losses or damages for which subrogation will not be pursued.
  • Exceptions: The endorsement should state any exceptions to the waiver, such as for certain types of losses or for losses caused by the intentional acts of the third party.
  • Confirming party’s legal obligation: Be sure to check the legibility of the waiver and that it is compliant with the relevant laws and regulations in the state or jurisdiction where your business operates.
  • Check the effective dates of the endorsement: Make sure that it is in force during the time period when the waiver is needed.
  • Check the carrier: Confirm that the insurance carrier listed on the certificate is reputable, and check to make sure the policy is in force and not expired or canceled.

Overall, the waiver of subrogation is an important tool that can be used to protect business relationships and ensure that the ultimate financial responsibility for losses falls on the party who is legally liable for those losses. However, it’s crucial for anyone obtaining a certificate of insurance to carefully review the terms of the waiver of subrogation endorsement to ensure that they fully understand the scope of the waiver and the parties to whom it applies. 


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