WATTS, J.
This case arises from a dispute as to whether Montgomery County, Maryland ("the County"), Petitioner, a self-insured entity, may recover damages from Montgomery County Police Officer John Distel, ("Respondent"), for the costs of repairing a County-owned police patrol vehicle, which was damaged in a single-car collision while Respondent operated the vehicle under the influence of alcohol. Specifically, we must determine whether Maryland's compulsory motor vehicle insurance scheme permits a self-insurer, such as the County, to disclaim or exclude insurance coverage, in a self-insurance guarantee, where an individual causes a collision while driving under the influence of alcohol. For the below reasons, we answer the question in the negative and, accordingly, affirm the judgment of the Circuit Court for Montgomery County.
The County is a self-insured entity approved by the Motor Vehicle Administration ("the MVA"). For the period from February 1, 2008, to February 1, 2009, the County agreed to provide motor vehicle liability insurance for County-owned vehicles "commensurate with the provisions as set forth in Section 17-103, Transportation Article, Annotated Code of Maryland and COMAR 11.18.02." In an application for self-insurance, dated January 8, 2008, the County stated that it would provide coverage for the minimum mandatory limits for: (1) bodily injury liability; (2) uninsured motorist claims; and (3) property damage liability. The County submitted to the MVA a signed Guarantee ("the Guarantee"), which provided, in relevant part:
The County's self-insurance policy and Guarantee were approved by the MVA and were in effect at the time of the collision at issue.
In 2008, at the time of the collision at issue, there was a Collective Bargaining Agreement ("the CBA") in effect between the County and the Fraternal Order of Police, Montgomery County Lodge 35, Inc. ("the FOP").
On May 9, 2008, at approximately 1:25 a.m., Respondent was operating a PPV, while off-duty, and was involved in a single-vehicle collision, which damaged the PPV and resulted in financial loss to the County. At the time of the collision, Respondent was under the influence of alcohol.
Shortly after the collision, through his union representative, Respondent filed a grievance against the County, seeking a determination that the CBA precluded the County from obtaining damages against him for the cost of repairs to the PPV. The grievance went to arbitration. The arbitrator decided that he could not determine whether the County was entitled to recover damages against Respondent, as the matter needed to be resolved through a civil action rather than an administrative action. The parties agreed that the arbitrator would retain jurisdiction, but that the County could seek a civil judgment against Respondent, and if the County succeeded, the FOP could seek to reopen arbitration to determine whether the CBA permitted the civil judgment.
On August 3, 2010, in the District Court of Maryland sitting in Montgomery County ("the district court"), the County filed a complaint against Respondent seeking to recover the cost of repairs to the PPV, and on October 14, 2010, the County filed an amended complaint in the district court, seeking the same relief.
On October 19, 2011, the district court conducted a one-day trial.
Respondent noted an appeal to the Circuit Court for Montgomery County ("the circuit court"). Following a hearing, the circuit court reversed the judgment of the district court and entered judgment in favor of Respondent, ruling from the bench, in pertinent part, as follows:
The County contends that it may recover damages from an employee where the employee operates a county-owned vehicle contrary to an applicable vehicle use policy. The County argues that the Guarantee: (1) provides coverage for claims arising from motor vehicle collisions resulting from "use or operation of a covered vehicle by a persons authorized to use such vehicle and occurring within the scope of such authorization"; and (2) excludes coverage where the use of the County vehicle is prohibited by any applicable vehicle use policy. The County asserts that the CBA contains the applicable vehicle use policy that excludes coverage where an officer operates a PPV after consuming alcohol. The County maintains that, because the MVA approved and accepted the Guarantee, with the restriction, coverage is excluded, and it is entitled to seek damages from Respondent, regardless of whether the restriction is authorized by the General Assembly or reduces insurance coverage below that required under Maryland's compulsory insurance statute.
Respondent replies that contractual restrictions or exclusions in automobile insurance policies that reduce insurance coverage below that required by Maryland's compulsory automobile insurance laws, and that are not expressly authorized as exceptions by the General Assembly, are invalid and unenforceable. Respondent contends that "Maryland law does not allow an insurer to exclude insurance coverage because the insured was driving under the influence"; i.e., the General Assembly has not promulgated an exception to insurance coverage to exclude coverage for those driving under the influence of alcohol.
Respondent contends that a self-insurer, such as the County, may not exclude coverage for its insured's operation of a vehicle while under the influence of alcohol, as such an exclusion would be against public policy. Moreover, Respondent asserts that the Guarantee's exclusion of coverage—stating that "the use of a County vehicle is prohibited by any applicable vehicle-use policy"—is too broad and neither specifically identifies the CBA, or any section of the CBA, as containing a vehicle use policy, nor specifically prohibits driving after consuming alcohol. Respondent maintains that the CBA sets forth in different sections many procedures that an officer is to follow, and that none of the sections is identified as a vehicle use policy.
In a reply brief, the County responds that the applicable vehicle use policy is contained at Section G of Article 35 of the CBA, which sets forth "the scope of the permitted use of a police vehicle[,]" and that the vehicle use policy does not include other sections such as Section H, "which designates certain procedures that the officer is to follow when he or she is operating a police vehicle within the scope of permission." (Footnote omitted).
In Marwani v. Catering by Uptown, 416 Md. 312, 318-19, 6 A.3d 928, 931 (2010), we explained the standard of review applicable in cases on appeal from the district court:
(Omission in original) (quoting Friendly Fin. Corp. v. Orbit Chrysler Plymouth Dodge Truck, Inc., 378 Md. 337, 342-43, 835 A.2d 1197, 1200 (2003)).
As to the motor vehicle insurance scheme within the State of Maryland, we, in no uncertain terms, have stated:
BGE Home Prods. & Servs., Inc. v. Owens, 377 Md. 236, 239, 833 A.2d 8, 10 (2003) (alteration in original) (quoting Van Horn v. Atl. Mut., 334 Md. 669, 680-81, 641 A.2d 195, 200 (1994)).
Under the compulsory motor vehicle insurance scheme, the General Assembly treats "approved self-insurance as the equivalent of an insurance policy[.]" BGE Home, 377 Md. at 246-47, 833 A.2d at 14 (citation and internal quotation marks omitted). This Court has recognized and deferred to the General Assembly's intent on the matter:
Id. at 247, 833 A.2d at 15 (alteration in original) (quoting Hines v. Potomac Elec. Power Co., 305 Md. 369, 375, 504 A.2d 632, 635 (1986)).
The compulsory motor vehicle insurance scheme in Maryland is designed to provide coverage, or payment, for liability claims.
In Salamon, 379 Md. at 310, 841 A.2d at 864, we observed that, in enacting and establishing a compulsory motor vehicle insurance scheme, the General Assembly set forth a legislative policy that "has the overall remedial purpose of protecting the public by assuring that operators and owners of motor vehicles are financially able to pay compensation for damages resulting from motor vehicle accidents." (Citation and internal quotation marks omitted). Stated otherwise, the compulsory motor vehicle insurance scheme was enacted "to promote the established legislative policy in Maryland that seeks to assure that victims of automobile accidents have a guaranteed avenue of financial redress." Rentals Unlimited, Inc. v. Aetna Cas. & Sur. Ins. Co., 101 Md.App. 652, 660, 647 A.2d 1278, 1282 (1994) (citation omitted), cert. denied, 337 Md. 90, 651 A.2d 854 (1995).
In accordance with the compulsory motor vehicle insurance scheme, the Montgomery County Code enables the County to obtain "comprehensive auto liability" insurance either from an insurance company authorized to do business within the State or through a self-insurance program. Montgomery County Code, Chapter 20, Article VII, Insurance § 20-37(c). The purpose of such a policy is "to provide an adequate comprehensive insurance program to compensate for injury to persons or damage to property resulting from negligence or other wrongful acts of the county's public officials, employees and agents and to provide protection for property of the county and for officials, employees, and agents acting with the scope of their duties." Id. § 20-37(a). Concerning self-insurance, the Montgomery County Code provides: "Insurance protection furnished to the participating agencies by the Montgomery County self-insurance program will not be less than the coverage provided under the independent insurance programs of the participating agencies when they begin to receive coverage from the fund." Id. § 20-37(e)(3).
As a result of Maryland's compulsory motor vehicle insurance scheme, we have held, on numerous occasions, that "contractual exclusions in automobile insurance policies that excuse or reduce benefits below the minimum statutorily required levels or types of coverage, and are not expressly authorized by the General Assembly, are invalid." Salamon, 379 Md. at 303, 841 A.2d at 860;
In Salamon, 379 Md. at 303-04, 841 A.2d at 860, this Court held that a "pizza exclusion" clause contained in a personal automobile insurance policy, which "purport[ed] to allow the insurer to deny coverage if an insured driver was [using the insured vehicle to] deliver[] `property for compensation' at the time of the accident," was invalid, as it was not authorized expressly under Maryland's compulsory motor vehicle insurance scheme. The insured driver (and owner of the insured vehicle) was using his vehicle to deliver pizzas as part of his job when he was involved in an accident with another vehicle. Id. at 303-04, 841 A.2d at 860. At the time of the accident, the insured driver had a personal automobile insurance policy that contained a "pizza exclusion" clause, under which the insurer's duty to defend and coverage for damage to a vehicle did not apply where the vehicle was being used to carry "property for compensation . . . including delivery of . . . food[.]" Id. at 304-05, 841 A.2d at 860-61.
In reviewing the validity of the "pizza exclusion" clause, we stated that we "consistently ha[ve] declared invalid insurance policy exclusions that excuse or reduce the insured parties' coverage below the statutory minimum level where such exclusions are not authorized explicitly by the General Assembly." Id. at 311, 841 A.2d at 865. Conversely, where the General Assembly has "authorized exclusions or exemptions, we [have] upheld contractual terms that excused or reduced an insurer's minimum coverage below the statutory minimums." Id. at 313, 841 A.2d at 866. As to the insured driver's case and the "pizza exclusion" clause, we explained and held as follows:
In BGE Home, 377 Md. at 245, 833 A.2d at 14, we held that BGE Home, a self-insured employer, had a duty to defend its employee in a third-party suit and that "the absence of a permissive use[] clause in the self-insurance documents precluded BGE [Home] from disclaiming indemnity coverage on the ground that [the employee] was not driving the vehicle within the scope of permission." A BGE employee caused a collision with another vehicle while driving a BGE Home van to his home after consuming alcohol. Id. at 240-41, 833 A.2d at 11. At the time of the collision, BGE Home had a directive "prohibit[ing] any employee from operating a BGE [Home] vehicle if the employee had consumed any alcohol or illegal substances." Id. at 239, 833 A.2d at 10. BGE Home had a self-insurance policy and guarantee in effect, which the MVA had accepted. Id. at 239-40, 833 A.2d at 10. Significantly, however, neither the self-insurance application nor guarantee contained a permissive use clause or "any exclusions, restrictions, definitions, or limitations other than the monetary limitations for the coverages[.]" Id. at 240, 833 A.2d at 10.
We held that BGE Home, as a self-insurer, had a duty to defend because "[a]n insurer's duty to defend, while contractual, is nevertheless a fundamental feature of a basic liability insurance policy." Id. at 245-46, 833 A.2d at 14. "[W]e decline[d] to find by implication exclusions, restrictions, or limitations which the self-insurer failed to put in the self-insurance application" and "which [were] not mentioned in the self-insurance documents." Id. at 248, 250, 833 A.2d at 15, 16. Most importantly, we stated that even when such exclusions and restrictions on required coverages are expressly stated in an insurance policy, "most of these exclusions and restrictions [are] void if they were not specifically authorized by the" General Assembly. Id. at 248, 833 A.2d at 15 (citations omitted). Accordingly, we observed:
Id. at 249, 833 A.2d at 16. See also Edwards v. Mayor and City Council of Balt., 176 Md.App. 446, 451, 474, 455, 933 A.2d 495, 498, 511, 500 (2007) (In reviewing Baltimore City's liability "as the self-insurer of [an] `at-fault' vehicle[,]" the Court of Special Appeals concluded that the City was liable where a fire department employee caused a collision in a City-owned
Here, to begin, we state in no uncertain terms that we neither approve of nor condone Respondent driving under the influence of alcohol. Nonetheless, we agree that the County may not recover the cost of repairs from Respondent; stated otherwise, we are satisfied that the Guarantee purporting to exclude coverage is unenforceable.
The County effectively failed to include the alcohol exclusion in the Guarantee. On their face and by their plain language, the County's self-insurance application and Guarantee contain nothing that purports to exclude coverage of an authorized individual who operates an insured vehicle after consuming alcohol or while under the influence of alcohol. Neither the self-insurance application nor the Guarantee mentions the word "alcohol" or contains an express provision disclaiming all insurance coverage in the event that an authorized individual operates the vehicle while under the influence of alcohol. Moreover, the language "any applicable vehicle-use policy" is overly broad, and fails to identify with any specificity which vehicle use policies apply or where the applicable vehicle use polices being referenced may be located. The County's self-insurance policy and Guarantee cover all County vehicles, not just PPVs used by police officers. As such, the "applicable vehicle-use policy" could potentially refer to any number of different policies for different groups of County employees.
In particular, neither the Guarantee nor the self-insurance application specifically references or identifies the CBA, Article 35 of the CBA, or the regulation in Section G of Article 35 prohibiting driving within four hours of consuming alcohol as the vehicle use policy pertaining to police officers. And, equally troubling, nothing in the CBA or Article 35 of the CBA is explicitly termed a "vehicle-use policy." As such, a review of the Guarantee would not result in notice that it refers to the CBA, and a review of the CBA would not result in notice that Article 35, and specifically Section G, constitutes a "vehicle-use policy" to which the County refers in the Guarantee.
Nonetheless, the County contends that the applicable vehicle use policy is contained solely at Section G of Article 35 of the CBA, and does not include Section H. We find this contention to be nonsensical. Section G is entitled "Program Regulations," whereas Section H is entitled "PPV Operating Procedures." Both sections contain restrictions on the use and operation of PPVs. For example, item 2 of Section G provides: "PPVs will not be operated within four (4) hours after the officer has ingested any amount of alcohol." Item 5 of Section H provides: "All officers will use seat belts when operating or riding in County motor vehicles[.]" Both items refer to the operation of PPVs and are contained in Article 35 concerning "Vehicles." At oral argument, the County attempted to distinguish Section G from Section H, and maintained that not wearing a seat belt would not result in a lack of insurance coverage as would driving within four hours of consuming alcohol. As the Honorable Lynne A. Battaglia so aptly pointed out, however: "How would somebody who is a police officer . . . know which one of these things [Section G or Section H] that . . . he's operating under, which one will obviate the County's responsibility and which won't?" The simple answer is that a police officer would not know based on the plain language of the self-insurance application, Guarantee, and
Our inquiry does not end there. Given the gravity of the question, we address head-on the issue of whether the County may exclude coverage where an employee causes a collision after consuming alcohol, and conclude that such an exclusion is not valid under Maryland law.
Undeniably, the exclusion in the Guarantee violates Maryland's compulsory motor vehicle insurance scheme by reducing insurance coverage below the mandatory minimums (and, in fact, eliminating all coverage) in the absence of express approval by the General Assembly. In other words, because the County, as self-insurer, seeks to deny coverage to Respondent and essentially render him uninsured at the time of the collision, the exclusion reduces coverage below the statutory minimum levels in effect at the time of the collision. See, e.g., Salamon, 379 Md. at 311, 841 A.2d at 864 ("[T]he requirement that every driver maintain at least the[] minimum levels of motor vehicle insurance [pursuant to Transp. § 17-103] remains an integral part of Maryland statutory law and public policy."); BGE Home, 377 Md. at 238, 833 A.2d at 9-10 ("[T]he Maryland statutory provisions regulating motor vehicle insurance are comprehensive . . . [and] mandate compulsory motor vehicle insurance or approved self-insurance[.]" (Citations omitted) (omission and second alteration in original)).
Moreover, an exclusion of coverage for driving while under the influence, or driving within four hours of consuming alcohol, has not been expressly authorized by the General Assembly. The County has not identified
Salamon, 379 Md. at 316-17, 841 A.2d at 868 (footnote omitted). Indeed, nothing within the applicable titles of the Maryland Code indicates an intent on the part of the General Assembly to permit insurers to deny or disclaim insurance coverage to otherwise insured individuals based on their blood-alcohol concentration level at the time of a collision. We know of no "drunk driving exclusion"
The County's public policy arguments are unpersuasive. In its brief, the County argues that public policy interests concerning liability coverage are not implicated by exclusion of coverage under the circumstances presented in this case because "this case does not involve compensation for injured victims or third parties" or "for property damage of others." Yet, at oral argument, the County took the position that it would not have been required to defend and indemnify Respondent if a third party had been involved in the collision because Respondent "was operating outside the scope of the authority and permission" granted to him. The County acknowledged that, under such a circumstance, Respondent would have been rendered uninsured and would not have been entitled to insurance coverage.
For obvious reasons, the County's position has troubling consequences. Maryland's compulsory motor vehicle insurance scheme has many purposes, including "assur[ing] that victims of automobile accidents have a guaranteed avenue of financial redress[,]" Rentals Unlimited, 101 Md.App. at 660, 647 A.2d at 1282 (citation omitted), and generally providing "coverage for the payment of liability claims." Larimore, 314 Md. at 619, 552 A.2d at 889 (citation omitted). Although it is true that the instant case does not involve third-party injury, as revealed by the County's stated position at oral argument, the County would disclaim coverage even in those circumstances where a third party is involved—extending the exclusion from accidents involving only the County employee to accidents involving innocent third parties. Such a position directly conflicts with Maryland's compulsory motor vehicle insurance scheme and undermines the spirit and purpose of the insurance scheme, namely, "to give innocent third
We reject the County's argument that BGE Home stands for the proposition that a self-insured entity may include any exclusion or restriction it desires into a guarantee and the restriction shall be enforceable as long as it is included in the guarantee. In BGE Home, 377 Md. at 250, 833 A.2d at 16, we stated: "If a self-insurer desires a particular exclusion or restriction, the self-insurer should put it in its application. The exclusion or restriction will then have the same status as an exclusion or restriction in a motor vehicle insurance policy." Nothing in BGE Home supports the leap of logic that an exclusion in a guarantee that contravenes the compulsory motor vehicle insurance scheme is valid. Indeed, we recognized that "even when exclusions from or restrictions on required coverages are expressly set forth in a motor vehicle insurance policy, Maryland law generally deems most of these exclusions or restrictions void if they were not specifically authorized by the Legislature." Id. at 248, 833 A.2d at 15 (citations omitted). Thus, BGE Home does not save the exclusion at issue here.
We are likewise not persuaded by the County's reliance on Consumers Life Ins. Co. v. Smith, 86 Md.App. 570, 587 A.2d 1119, cert. denied, 323 Md. 185, 592 A.2d 178 (1991), a case involving a life insurance policy. In Consumers Life Ins., 86 Md. App. at 572, 587 A.2d at 1120, the insured was killed in a single-car accident that occurred when he operated his vehicle while intoxicated. The insurer propounded a public policy argument—that a "beneficiary should not recover because the Maryland Legislature has acted to deter a
Id. at 577, 587 A.2d at 1122-23 (citation omitted). Although the statement above may govern life insurance policies, and specifically accidental death and dismemberment policies, for one very critical reason, it has no bearing whatsoever on the instant case involving motor vehicle insurance. Unlike life insurance and attendant policies, motor vehicle insurance is mandatory under Maryland law. See BGE Home, 377 Md. at 239, 833 A.2d at 10. In other words, although an individual may or may not opt to purchase a life insurance policy, under Maryland's compulsory motor vehicle insurance scheme, an individual is
Before concluding, we pause to explain that the clause in the Guarantee is, indeed, an "exclusion" rather than an omnibus clause or a permissive use clause. An omnibus clause is an overarching clause contained in an automobile insurance policy that "extends coverage to a third party who operates the vehicle within the permission of the named insured." Salamon, 379 Md. at 315, 841 A.2d at 867 (citation omitted). "[T]he dominant purpose of an omnibus clause is an intent to extend coverage." Id. at 315, 841 A.2d at 867 (citation and internal quotation marks omitted). "The purpose of an omnibus clause is to protect the named insured, the persons within the omnibus clause, and the public generally and its members injured by the negligent operation of the insured automobile on a public highway." Agency Ins. Co. v. State Farm Mut. Auto. Ins. Co., 193 Md.App. 666, 673, 998 A.2d 936, 940 (2010) (citation and internal quotation marks omitted). In Agency Ins. Co., id. at 673, 998 A.2d at 940, the Court of Special Appeals described the "objectives" served by an omnibus clause, including providing: (1) "the injured person a right to proceed against the insurer in cases in which the insurer would not otherwise be liable because the automobile was not driven by the original insured"; and (2) "the additional insured the protection of automobile liability insurance without his having procured such a policy[.]" (Citation omitted).
A permissive use clause "limits the coverage under the omnibus clause to claims that arise while the third party is operating the vehicle within the scope of the permission granted by the named insured." Salamon, 379 Md. at 316 n. 10, 841 A.2d at 867 n. 10.
In contrast, an exclusion in an automobile insurance policy excludes coverage under certain delineated circumstances. See generally id. at 304-05, 841 A.2d at 860-61. An exclusion typically utilizes the word "exclusion" or some variation thereof. See, e.g., id. at 304-05, 841 A.2d at 860-61; Jennings, 302 Md. at 354, 488 A.2d at 167.
The clause of the Guarantee at issue—"Where the use of a County vehicle is prohibited by any applicable vehicle-use policy, coverage is excluded under this Guarantee for damage of any kind"—is an exclusion. The clause is certainly not an omnibus clause because it does not extend coverage to third parties, or otherwise evince an intent to extend coverage or to provide added protection for third parties. In fact, the clause does exactly the opposite—it limits or eradicates all coverage under certain circumstances. The clause is also not a permissive use clause because it does not purport to limit coverage to claims arising when the third party operates the vehicle within the "scope" of permission granted or authorized. Rather,
In summary, we hold that the exclusion in the Guarantee-purportedly excluding or disclaiming all insurance coverage on the basis that Respondent operated his PPV under the influence of alcohol-is invalid because it violates Maryland's compulsory motor vehicle insurance scheme, is not expressly authorized by the General Assembly, and is against public policy.
HARRELL, J., dissents.
HARRELL, J., dissenting.
I dissent. At the expense of legal scholarship,
I agree with the Majority opinion that the County's permissive use exclusion in its approved self-insurance guarantee should not be enforceable as a defense available to the County to an innocent third party's, i.e., a victim's, claims (whether for personal injury or property damage), up to the mandatory minimum statutory coverage.
Through the combination of the permissive use exclusion
Like the Majority, but for different reasons, I would not reach the question of interpreting the collective bargaining agreement and, instead, leave it to the resumption of the arbitration of Officer Distel's grievance.
Although not mandatory authority, Sullivan, id., is instructive. The Missouri Court of Appeals demonstrated a wariness of restrictions or exclusions that reduce insurance coverage below the statutory minimum requirements. See id. at 23 (That Court cautioned that it must be cognizant "of the serious consequences of allowing restrictions in [a] rental agreement to determine the coverage to be provided. The liability protection for which the lessee has paid could be reduced to a nullity by rental provisions prohibiting operation of the car `negligently' or contrary to any statute or ordinance."). Similarly, this Court has not hesitated to declare invalid exclusions in automobile insurance policies that permitted insurers to disclaim all coverage in the absence of express approval by the General Assembly. See Salamon, 379 Md. at 303-04, 841 A.2d at 860 ("pizza exclusion" clause); Jennings, 302 Md. at 354, 359-60, 488 A.2d at 167, 169-70 ("household exclusion" clause). In this case, aware of the far-reaching effects that approval of a "drunk driving exclusion"—one not specifically identified or delineated in the self-insurance application or Guarantee—would have in the absence of an exclusion approved by the General Assembly, we refuse to independently create such an exclusion.
Salamon, 379 Md. at 316 n. 10, 841 A.2d at 867 n. 10 (omission in original) (citation omitted).
(Citations and footnotes omitted). The "liberal rule" of omnibus clause interpretation, referenced above, "require[d] that, if the vehicle was originally entrusted by the named insured . . . to the person operating it at the time of the accident, then despite hell or high water, such operation is considered to be within the scope of the permission granted, regardless of how grossly the terms of the original bailment may have been violated." Id. at 315 n. 9, 841 A.2d at 867 n. 9 (citation and paragraph break omitted).
We agree with Respondent that it is well-settled that an insurer may not recover from its insured as subrogee. See Rausch v. Allstate Ins. Co., 388 Md. 690, 701, 882 A.2d 801, 807 (2005). In light of our determination that the exclusion is invalid, and in the absence of any other reason advanced by the County as to why Respondent would be denied coverage under the self-insurance policy, we conclude that Respondent was, in fact, covered at the time of the collision. Accordingly, the County, as insurer, may not recover damages from Respondent, its insured, as doing so would violate the anti-subrogation rule.
