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Hartford Accident & Indemnity Co. v. Aetna Casualty & Surety Co.5/29/1990
I see no judicial economy. I do not foresee that a primary insurer will act any differently because an excess insurer has a right of equitable subrogation than if it did not.
I do foresee that jurors asked to decide these issues between battling insurance companies will be selected, not because of their knowledge or experience in resolving issues regarding automobile accidents, bad faith conduct by insurance companies, etc., but that they will be "selected" (or be the result of the selection process) because of their lack of knowledge and experience.
This area of dispute is peculiarly factual in nature and is most suitable for mediation, arbitration, or other methods of alternative dispute resolution between contending insurance companies. This is an area of law where a trier of fact familiar with applicable law and the businesses of primary insurers and excess insurers could resolve the dispute in a fraction of the time and expense involved in exhaustive discovery and trial to a jury. Lord Bramwell, over a century ago, expressed his frustration at being presented with a commercial dispute as to whether a provision in an agreement was "just and reasonable":
For here is a contract made by a fishmonger and a carrier of fish who know their business, and whether it is just and reasonable is to be settled by me who am neither fishmonger nor carrier, nor with any knowledge of their business.
Manchester, Sheffield & Lincolnshire Ry. Co. v. Brown, 8 App. Cas. 703, 716 (H.L. 1883).
Hartford and Aetna are now in the position where principles of equitable subrogation can be applied to the facts. Since Hartford and Aetna, to use the words of Lord Bramwell, "know their business," they should be able to resolve their dispute.
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