                                [J-4-2018][M.O. - Baer, J.]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                     EASTERN DISTRICT



THE HARTFORD INSURANCE GROUP                    :   No. 24 EAP 2017
ON BEHALF OF CHUNLI CHEN,                       :
                                                :   Appeal from the Judgment of Superior
                                                :   Court entered on 2/10/17 at No. 976
                       Appellee                 :   EDA 2016 (reargument denied 4/18/17)
                                                :   vacating and remanding the order dated
                                                :   2/25/16 in the Court of Common Pleas,
                                                :   Philadelphia County, Civil Division, at
                  v.                            :   No. 1534 September Term 2015
                                                :
KAFUMBA KAMARA, THRIFTY CAR                     :
RENTAL AND RENTAL CAR FINANCE                   :
GROUP,                                          :
                                                :
                       Appellants               :   ARGUED: March 6, 2018




                                    DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                      DECIDED: November 21, 2018

       For the reasons expressed in my dissenting opinion in Liberty Mutual Insurance

Co. v. Domtar Paper Co., 631 Pa. 463, 113 A.3d 1230 (2015), I would reaffirm this

Court’s understanding of the concept of subrogation, as articulated in previous

decisions. See, e.g., Frazier v. WCAB (Bayada Nurses, Inc.), 616 Pa. 592, 603, 52

A.3d 241, 248 (2012) (“In subrogation, the insurer stands in the shoes of the insured in

attempting to recover what is rightfully owed to it from a third-party tortfeasor.”) (internal

quotations omitted); Scalise v. F.M. Venzie & Co., 301 Pa. 315, 320, 152 A. 90, 92

(1930) (observing, in a workers’ compensation setting, that an employer may bring an
action in the employee’s name to enforce a right of subrogation, if the employee opts

not to sue).1

       By contrast, the majority now holds that the common law understanding of

subrogation no longer pertains, since the right of subrogation is now “afforded expressly

by statute in Section 319 of the WCA.” Majority Opinion, slip op. at 12. The Legislature,

however, has not supplied a definition of subrogation that is any different from the

common law conception or otherwise suggested a departure from the common law

model.    Moreover, “statutes are not presumed to make changes in the rules and

principles of the common law or prior existing law beyond what is expressly declared in

their provisions.”   Commonwealth v. Miller, 469 Pa. 24, 27-28, 364 A.2d 886, 887

(1976).

       Certainly, there are difficulties associated with the enforcement by insurers of

their subrogation rights, see Majority Opinion, slip op. at 19-20, but as Justice Todd and

I have previously suggested, these could be addressed through procedural mechanisms

to protect employee interests. See Domtar Paper, 631 Pa. at 482-83, 113 A.3d at 1242

(Saylor, J., dissenting); id. at 485-86, 113 A.2d at 1243-44 (Todd, J., dissenting). In

response to any suggestion that such procedural innovations should have been

supplied by the Legislature, see, e.g., Majority Opinion, slip op. at 20 (positing that “it is

not for this Court to create a remedy to cure a possible deficiency in the WCA”), I note

that this Court has maintained that its own power to fashion procedural rules pertaining

1 Accord United States v. Aetna Cas. & Sur. Co., 338 U.S. 366, 381, 70 S. Ct. 207, 215-
16 (1949) (discussing the “common law practice” for the enforcement of subrogation
rights through the commencement of an action at law in the name of the insured to the
insurer’s use). See generally BLACK’S LAW DICTIONARY 1654 (10th ed. 2014) (defining
“subrogation” as “[t]he principle under which an insurer that has paid a loss under an
insurance policy is entitled to all the rights and remedies belonging to the insured
against a third party with respect to any loss covered by the policy”).



                              [J-4-2018][M.O. – Baer, J.] - 2
to the court system is an exclusive one. See, e.g., Commonwealth v. McMullen, 599

Pa. 435, 444, 961 A.2d 842, 847 (2008).2

       In summary, I would enforce the explicit language of the Workers’ Compensation

Act and thus permit subrogee-insurers to enforce their statutorily-conferred rights via the

use-plaintiff convention. See 77 P.S. §671 (“Where the compensable injury is caused in

whole or in part by the act or omission of a third party, the employer shall be subrogated

to the right of the employe.”). Based on the above, and for the additional reasons ably

expressed in the Superior Court’s treatment, see Hartford Ins. Group ex rel. Chen v.

Kamara, 155 A.3d 1108 (Pa. Super. 2017), I respectfully dissent.



       Justice Todd joins this dissenting opinion.




2 For my own part, I have advocated a more circumspect approach to the fashioning of
appropriate procedures. See id. at 458, 961 A.2d at 855-56 (Saylor, J., concurring and
dissenting) (“[B]oth in gray areas between substance and procedure, and in matters that
have not yet been occupied by this Court via its own procedural rules, I would allow
some latitude to the Legislature to make rules touching on procedure, so long as such
rules are reasonable and do not unduly impinge on this Court’s constitutionally
prescribed powers and prerogatives.” (citation omitted)).


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