Liberty Mutual Insurance v. Thunderbird Bank

(dissenting)-

I respectfully dissent from the result reached by the majority of this court.

The opinion of Judge Froeb and the opinion of Judge Eubank are both based upon the proposition that the rights of Liberty Mutual in this case arise solely from the equitable doctrine of subrogation, that is, subrogation is only called into play to bring about an equitable adjustment between the parties. The theory then continues that as between two innocent parties (the surety company and the collecting bank), the equities weigh in favor of the collecting bank, or the equities are balanced and since the…