“I was involved in a motor vehicle accident, nothing serious, my vehicle just got damaged. I have comprehensive insurance for motor vehicle accidents, which is going to cover the damages to my vehicle, I must however pay an amount of R3500.00 as excess. Will my insurance company sue the negligent driver for the damages and will this include the excess paid by me?”

Subrogation is a doctrine of insurance law which embraces a set of rules providing for the reimbursement of an insurer which has indemnified it’s insured under a contract of indemnity insurance.

The gist of the doctrine is the insurer’s personal right of recourse against its insured, in terms of which it is entitled to reimburse itself out of the proceeds of any claims that the insured may have against third parties in respect of the loss.

In a nutshell the insurance climbs into your shoes and keeps the wrongdoer of the negligent driver liable for the damages sustain by you.

In practice this will entail that the insurance company will appoint one of its panel attorneys to issue summons against the wrongdoer or negligent driver. This is also the case when you are being sued as the wrongdoer or negligent driver, the insurance company will enter appearance to defend on your behalf, through its panel attorneys, and will then defend the claim on your behalf.

You will still be reflected as either the Plaintiff (in the case where your insurance company sues) or the Defendant (in the case where you are being sued), which will entail that you will be required or called by your insurance company or their attorneys to attend court and testify.

Remember your insurance company has a contractual agreement with you in terms of which damages will be covered depending on the circumstances but you as driver remains liable or entitled to claim.

In Caledonia North Sea Ltd v Bridge Engineering Co. and other (2000) Lloyd Rep 1R 249 at 261: it was held that the right of subrogation can be exercised against a primary debtor whether the latter is a delictual wrongdoer or a contractual defaulter. 

The general rule is that the insurer will only be entitled to rights of subrogation once the insured has been indemnified “in full” for its insured loss. On payment of indemnity, subrogation happens without the need for any formalities, however, the following are considered the legal requirements for subrogation: 

1. The existence of a valid insurance contract; 
2. The insurer must have indemnified the insured; 
3. The insured’s loss must have been fully compensated; 
4. The insured must have a right against a third party that must be liable to subrogation which arises in the context of indemnity insurance.

To answer the abovementioned question, the insurance company will sue for the total loss or damages sustained to your vehicle inclusive of the excess paid by you.