Milbank Insurance v. Henry

I respectfully dissent. In my opinion, subrogation clauses make medical pay coverage illusory. I would hold that *425subrogation clauses are unenforceable for the reason that they are against public policy.

In its opinion, the majority suggests that subrogation clauses are valid “based on contract” reasoning. The majority then upholds a medical pay subrogation clause on the theory that the insured has “bargained” for the clause, and therefore the courts should enforce it.

Realistically, there is no “bargaining” for a contract of insurance. As the U.S. Court of Appeals for the Eighth Circuit has…