In Connecticut, the “make whole doctrine” enables an insured to have priority for money recovered from a tortfeasor over an insurer’s right to the same source of money, where the amount paid by the insurer is insufficient to fully compensate its insured for the loss suffered. Hence, by law (absent a contractual agreement stating otherwise), the insured must be “made whole” before the insurer can recover from the at-fault party any portion of its payment to its insured.
In Orlando v. Liburd, the Supreme Court of Connecticut recently clarified when a challenge to an insurer’s claim for recovery from a third-party tortfeasor, based upon the “make whole” doctrine, is “ripe” for adjudication.[1] The Court ruled that where an insurer exercises its subrogation rights in a way that violates the make whole doctrine, the insured’s right to challenge to such subrogation recovery is ripe even when there has been no judgment obtained against the at-fault party.
In Orlando, the plaintiff (insured), Rocco Orlando, was involved in an automobile accident and brought a suit against the at-fault driver (Ernest Liburd) for diminution of value and loss of use of his motor vehicle. In response, Mr. Liburd brought in plaintiff’s insurer, Nationwide, on the basis that Mr. Liburd’s insurer, State Farm, had already paid Nationwide its full policy limit of $25,000. The plaintiff then amended his complaint, alleging that Nationwide was unjustly enriched by prematurely accepting the $25,000, which reduced the money that the plaintiff could recover from Mr. Liburd. The trial court dismissed plaintiff’s unjust enrichment claim, finding that it was not ripe for adjudication because Mr. Liburd had not yet been found liable for the motor vehicle accident. The appellate court affirmed the trial court’s dismissal.
The Supreme Court of Connecticut granted review of the decision and reversed the appellate court’s ruling. The Court disagreed with the appellate court’s determination that the plaintiff must first have an underlying judgment against the tortfeasor before his unjust enrichment claim became ripe. In so holding, the Court noted that a plaintiff does not need a judgment against the tortfeasor in order to establish an actual harm suffered.
While the Court noted that the plaintiff would still need to eventually prove his claim/amount of damages allegedly suffered, the fact that the exact amount was currently unknown did not make the case against Nationwide unripe. The alleged harm was not a hypothetical injury, but rather was a known injury for an undetermined amount. Moreover, the Court took notice of the fact that Mr. Liburd’s insurer, State Farm, had already accepted liability and tendered its limits to Nationwide, which could lead to the plaintiff’s recovery for his claims.
Notably, this decision once again acknowledges the application of the “make whole” doctrine in Connecticut and clarified when a claim against an insurer under this doctrine becomes ripe. A plaintiff does not need to have fully adjudicated the underlying case against a tortfeasor before commencing suit against its insurer under the make whole doctrine, as the harm suffered by the insurer’s conduct, acceptance of money that could otherwise be recovered by the plaintiff insured, is already known.
To view the full case decision, click here – Orlando v. Liburd, 353 Conn. 845 (2026)
[1] Orlando v. Liburd, 353 Conn. 845 (2026)