(specially concurring).
I join in Parts II-B, III and IV of the plurality opinion. As to Part II-A, I would point out that the equitable remedy of subrogation generally presupposes that one secondarily liable pays the debt of another primarily liable and, either by contract or by operation of law, becomes entitled to the rights and remedies of the original creditor. See State Farm Mut. Auto. Ins. Co. v. Foundation Reserve Ins. Co., 78 N.M. 359, 363, 431 P.2d 737, 741 (1967). In this case, as the plurality opinion points out, the liabilities of the two insurers were mutually exclusive; only one was primarily liable, and the other was not liable at all. Therefore, even assuming the correctness of the holding in Part I that there was coverage under the Progressive policy, American General’s claim for subrogation does not fit the classical model of the remedy.
However, I believe extending the remedy of subrogation to an insurer in American General’s position is consistent with the equitable principles underlying the doctrine. American General was caught in a dilemma: It had to defend the lawsuit based on the allegations in the complaint, and it could not abandon the defense when it discovered the facts affecting coverage and Progressive refused to defend. A reasonable settlement was in its insured’s best interests, and American General was certainly not a “volunteer” in making such a settlement. Under these circumstances, assigning Mr. Wade’s rights and remedies against Progressive to American General seems consistent with “equity and good conscience.” See id.
As for Part I of the plurality opinion, while I have serious reservations about the result and rationale in Sanchez v. Herrera, 109 N.M. 155, 156-57, 783 P.2d 465, 466-67 (1989), in the interest of stare decisis I concur in the result in this case.