ABSTRACT
Not only is insurers’ subrogation at bottom dependent on the terms – express or implied – of the relevant contract, its connection with unjust enrichment can be, to say the least, tenuous: indeed, there are cases where it applies notwithstanding the lack of any plausible unjust enrichment. Take the underwriter who pays out on a valued policy: he is entitled to subrogation to the assured’s claims even where the agreed value is less than the assured’s actual loss, and hence recovery by the latter cannot be said to enrich him at all.135
