Fischer v. Steffen

2011 WI 34, 797 N.W.2d 501, 333 Wis. 2d 503, 2011 Wisc. LEXIS 327

• Court: Wisconsin Supreme Court
• Decided: May 24, 2011
• Docket: No. 2009AP1669
• Status: Published

Opinions

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is a review of a published decision of the court of appeals,¹ which affirmed the judgment of the circuit court of Sheboygan County, L. Edward Stengel, Judge.

¶ 2. This review arises from an automobile accident. Roger H. Fischer, Sr. and Sandra J. Fischer, the injured plaintiffs, seek $10,000 from Pamela A. Steffen, the driver defendant; the defendant's insurer is Wilson Mutual Insurance Co. The $10,000 is the amount received by the plaintiffs from the plaintiffs' insurer, American Family Insurance Company, for medical expenses. The policy maximum for no-fault medical expenses was $10,000.

¶ 3. The jury found the defendant 100% liable for the plaintiffs' injuries. The jury awarded the plaintiffs $21,000 for pain and suffering and loss of consortium from the defendant. The parties stipulated that $12,157.14 was the reasonable value of past medical expenses; the circuit court entered this amount in the jury verdict.

¶ 4. The plaintiffs moved for judgment on the verdict, and the defendant filed a motion for partial judgment, asking the circuit court to reduce the award for medical expenses from $12,157.14 to $2,157.14 because the plaintiffs had already recovered $10,000 of the medical expenses from their insurer, American Family. American Family did not recover its subrogation claim for $10,000 against the defendant or her insurer because prior to the plaintiffs' lawsuit an arbitration panel found that the defendant was not negligent and need not pay American Family. The circuit court granted the defendant's motion, ruling that the plaintiffs were not entitled to the disputed $10,000 from the defendant.

¶ 5. The dispute before this court focuses on whether the circuit court erred in denying the plaintiffs a judgment of $10,000 against the defendant when the defendant did not pay the plaintiffs' insurer $10,000, a sum that represents the insurer's subrogation claim.

¶ 6. With regard to the plaintiffs' past medical expenses, the following are undisputed:

• The reasonable value of plaintiffs' past medical expenses was $12,157.14.

• The plaintiffs' insurer paid the plaintiffs $10,000 (the maximum under the policy) for no-fault medical expenses.

• The plaintiffs' insurer acquired a subrogation claim for $10,000 against the tortfeasor under the subrogation provision in the automobile insurance policy.

• Prior to trial, the plaintiffs' and the defendant's insurers arbitrated the plaintiffs' insurer's subrogation claim. The plaintiffs received no notice of the arbitration and did not participate in the arbitration.

• The arbitration panel determined that the defendant was not causally negligent and that the plaintiffs' insurer had no subrogation claim against the defendant.

• The jury determined that the defendant was 100% causally negligent.

• After trial, the defendant, upon order of the circuit court, paid the plaintiffs $2,157.14 ($12,157.14-$10,000) as reimbursement for medical expenses.

• Neither the defendant nor her insurer reimbursed the plaintiffs' insurer or the plaintiffs $10,000, the sum the plaintiffs' insurer paid the plaintiffs as reimbursement for medical expenses.

¶ 7. The plaintiffs argue that the defendant has paid $10,000 less than the full damages the defendant caused. The plaintiffs assert that the collateral source rule applies: the defendant should not benefit from the plaintiffs' insurance policy. The plaintiffs contend that American Family's subrogation claim should revert to them, not the defendant, upon application of the collateral source rule.

¶ 8. In contrast, the defendant's position is that the plaintiffs should not obtain a double recovery, that is, the plaintiffs should not recover an additional $10,000 to compensate them for $10,000 in medical expenses already paid to the plaintiffs by their insurer, American Family.

¶ 9. The circuit court denied the plaintiffs judgment for the $10,000 in question, relying on Paulson v. Allstate Ins. Co., 2003 WI 99, 263 Wis. 2d 520, 665 N.W.2d 744. Similarly, the court of appeals, relying on Paulson, affirmed the circuit court's judgment that the plaintiff cannot recover the $10,000 in question from the defendant.

¶ 10. In Paulson, the court determined that under the facts of that case the injured party's recovery from the tortfeasor was not affected by the subrogated insurer's settlement of its subrogation claim with the tortfeasor for 70% of the full value.² The injured party could not recover the subrogated insurer's claim for 30%, which the subrogated insurer did not recover from the tortfeasor.³

¶ 11. The Paulson court evaluated the interaction of the made whole doctrine, the collateral source rule and subrogation rules.

¶ 12. The Paulson court declared that the made whole doctrine was not applicable to the facts of the case inasmuch as no assertion was made that there was an insufficient pool of money to pay damages.⁴ "The specter of an insurer competing with the insured for a limited amount of funds is simply not raised by the facts of this case."⁵

¶ 13. With regard to the collateral source rule and subrogation, the Paulson court concluded that subrogation trumped the collateral source rule under the facts of that case.⁶ To reach this conclusion, the court balanced three equitable considerations at play in the case: placing the full responsibility of the loss on the tortfeasor; discouraging double recovery for the injured party; and encouraging settlement agreements between parties.⁷

¶ 14. The Paulson court declared that the settlement agreement relating to the subrogation claim did not reduce the recovery of the injured party.⁸

¶ 15. The Paulson court rested its conclusion on the following:

• The injured party's insurer was not competing with the injured party for the same funds.⁹

• Settlement agreements are favored. "Refusing to recognize the [settlement agreement] would inform insurers that there is no point to settlement negotiations, because if the subrogated insurer agrees to take less than the face value of its claim, the plaintiffs will simply get the rest from the tortfeasor's insurer."¹⁰

• Allowing the injured party (who has already been fully compensated for the loss) to recover the subrogated claim would allow double recovery and discourage settlement negotiations.¹¹

¶ 16. The Paulson court concluded: "Where the plaintiff has recovered the reasonable value of his or her expenses and makes no allegation that the agreement [settling the subrogation claim] prevents such recovery, there is no reason to award the plaintiff the difference."¹²

¶ 17. The holding in Paulson was carefully limited to the facts of that case. "[W]e find that, under the limited circumstances presented by this case, Paulson is not entitled to the 30 percent difference between the amount Midwest paid for Paulson's car repairs and the amount it ultimately settled for in its agreement with Allstate."¹³

¶ 18. After comparing Paulson and the instant case, we conclude that in all significant respects the present case is indistinguishable from Paulson and that therefore the present case is governed by Paulson. Accordingly, we conclude that the collateral source rule does not, under the facts of the present case, entitle the plaintiffs to recover $10,000, the value of their insurer's subrogation claim. For the reasons set forth, we affirm the decision of the court of appeals.

I

¶ 19. The underlying facts are undisputed, and we shall set them forth in greater detail at this point. As we have stated, this case stems from a car accident. The accident occurred when the defendant had an epileptic seizure.

¶ 20. American Family Insurance Company, the plaintiffs' insurer, paid the plaintiffs $10,000 for medical expenses under the plaintiffs' auto insurance policy with American Family. Thus, American Family acquired a $10,000 subrogation claim in the plaintiffs' recovery from the defendant.

¶ 21. Prior to the commencement of the plaintiffs' personal injury action against the defendant, American Family entered into arbitration with the defendant's insurer in an attempt to collect its $10,000 subrogation claim. American Family lost at arbitration. The arbitration panel determined that the defendant's seizure was sudden and unexpected and therefore the defendant was not causally negligent. As a result of the binding arbitration, American Family could not recover its subrogation claim against the defendant.

¶ 22. The plaintiffs sued the defendant (and her insurer) for damages, including medical expenses, caused by the defendant’s negligence. The plaintiffs correctly joined their insurer, American Family, as a party under Wis. Stat. § 803.03(2) (2009-10)¹⁴ inasmuch as American Family had a subrogation claim in the plaintiffs' recovery from the defendant. American Family filed an answer and a cross-complaint asserting its subrogation claim.

¶ 23. The defendant notified American Family that American Family had divested its subrogation claim as a result of the arbitration proceedings. American Family agreed. American Family and the defendant stipulated to dismissing American Family and the circuit court dismissed American Family's subrogation claim. The plaintiffs were not a party to this stipulation dismissing American Family's subrogation claim.

¶ 24. The plaintiffs proceeded to trial. A jury determined that the defendant was 100% causally negligent. The jury awarded the plaintiffs $21,000 for pain and suffering and for loss of consortium, and $12,157.14, the value of past medical expenses to which the parties stipulated.

¶ 25. Notwithstanding the verdict, the defendant filed a motion for a partial judgment asking the court to reduce the award for past medical expenses by $10,000. This $10,000 was the amount that American Family had previously paid the plaintiffs for their medical expenses; it was the amount of American Family's subrogation claim; and it was the amount that had been the subject of arbitration between American Family and the defendant.

¶ 26. In response to the defendant's motion for a partial judgment, the circuit court reduced the judgment for past medical expenses by the $10,000 that American Family previously had paid to the plaintiffs.

¶ 27. Relying on Paulson v. Allstate Ins. Co, 2003 WI 99, 263 Wis. 2d 520, 665 N.W.2d 744, the circuit court ruled that the collateral source rule was not applicable. Also relying upon the reasoning in Paulson, the court of appeals affirmed the judgment of the circuit court.¹⁵

II

¶ 28. The present case involves the interaction of three rules of law: the collateral source rule, rules of subrogation, and the made whole doctrine. The application of each of these rules to undisputed facts is a question of law that this court determines independently of the circuit court and court of appeals but benefiting from their analyses.¹⁶

III

¶ 29. The three rules, the collateral source rule, rules of subrogation, and the made whole doctrine, have been discussed in numerous cases. We begin by briefly summarizing each rule.

¶ 30. In general, the collateral source rule provides that a tortfeasor's liability to an injured person is not reduced because the injured person receives funds from other sources.¹⁷ The collateral source rule prevents payments made by the injured party, such as premiums paid for an insurance policy, from inuring to the benefit of the tortfeasor.¹⁸ The collateral source rule is grounded in two policies: (1) to deter negligent conduct by placing the full cost of the wrongful conduct on the tortfeasor,¹⁹ and (2) to allow the injured party, not the tortfeasor, to benefit from a windfall that may arise as a consequence of an outside payment.²⁰

¶ 31. The rules of subrogation provide for the substitution of one party, the subrogee, for another, the subrogor. In the insurance context, subrogation is a derivative right that permits an insurer to step into the shoes of the insured and to pursue recovery from the tortfeasor to the extent of the insurer's payments to the subrogor (the insured) ²¹ Subrogation ensures that the loss is ultimately placed upon the tortfeasor and prevents the subrogor (the injured party) from being unjustly enriched through double recovery.²²

¶ 32. The made whole doctrine prevents competition between the injured party and the subrogated party (the insurer) when the injured party's damages exceed a limited pool of funds from which recovery may be had. Under the made whole doctrine, the injured party should be the first to tap into the limited pool of funds and recover on any loss. When someone can not be fully paid, the loss should be borne by the subrogee (the insurer).²³

¶ 33. In sum, the three rules ordinarily work in tandem. The collateral source rule prevents tortfeasors from being relieved of their obligations by payments to an injured party from an outside source. The rules of subrogation likewise ensure that the loss ultimately falls on the tortfeasor and also prevent an injured party from receiving a double recovery.²⁴ Finally, the made whole doctrine ensures that in a situation when there are not sufficient funds to make the injured party whole, the injured party has priority over the subrogee (the insurer) in recovering from the limited pool of funds.

¶ 34. These three rules are equitable doctrines and ordinarily work together to further the goals of ensuring that injured people recover for their loss and that tortfeasors pay for the damages they inflict. These equitable doctrines do not, however, lend themselves to the application of black-letter rules.²⁵ The interaction and the application of the collateral source rule, rules of subrogation, and the made whole doctrine are heavily influenced by the facts.²⁶

¶ 35. Paulson, the case relied upon by both the circuit court and the court of appeals in deciding the present case, involved the interplay of these three rules.²⁷ We turn to Paulson to determine whether Paulson and the present case are significantly similar and whether the present case should be governed by Paulson.

IV

¶ 36. Paulson similarly arose out of a car accident. Paulson suffered personal injury and property damage.²⁸ Paulson presented a claim to her insurer for the cost of repairing her vehicle, and her insurer paid the full cost of repair (less the policy's deductible).²⁹

¶ 37. Paulson, along with her husband and daughter, filed suit against the tortfeasor, claiming property damage; medical expenses; lost wages; pain and suffering; and loss of society, companionship, services, and consortium.³⁰ Paulson appropriately joined her insurer as a party based on its subrogation claim.³¹

¶ 38. Prior to the filing of the suit, however, Paulson's insurer negotiated a settlement agreement with the tortfeasor's insurer for its subrogation claim arising from its payment to Paulson for property damage.³² Calculating comparative negligence, Paulson's insurer accepted a reduced payment of 70% of the property damage to settle its subrogation claim.³³ On the basis of this settlement agreement, Paulson's insurer moved to be dismissed from Paulson's lawsuit against the tortfeasor, thereby giving up its subrogation claim. The circuit court granted Paulson's insurer's motion for dismissal.³⁴

¶ 39. The tortfeasor in Paulson failed to answer the complaint timely, and the circuit court entered a default judgment in favor of Paulson.³⁵ By the time the case was presented for review in this court, further settlements between the parties had occurred. The only remaining issue before the supreme court was whether Paulson was entitled to recover $2,112.73 from the tortfeasor, the 30% difference between the amount Paulson's insurer paid Paulson ($7,542.44) and the amount the tortfeasor paid Paulson's insurer for the subrogation claim ($4,929.71).³⁶

¶ 40. The Paulson court analyzed the interplay of the collateral source rule, the rules of subrogation, and the made whole doctrine in light of the facts of that case. As we explained previously, the Paulson court concluded that the made whole doctrine did not apply; that Paulson's insurer settled its subrogation claim for less than the full amount; that the collateral source rule was trumped by subrogation; and that Paulson could not recover from the defendant that part of the subrogation claim that the subrogated insurer did not recover.³⁷

¶ 41. The Paulson court concluded: "Where the plaintiff has recovered the reasonable value of his or her expenses and makes no allegation that the agreement prevents such recovery, there is no reason to award the plaintiff the difference."³⁸ Awarding the injured party the difference between the amount its insurer paid her and the amount for which the insurer settled its subrogation claim would allow the injured party a double recovery and would discourage settlement negotiations.³⁹ The Paulson court determined that the policy underlying the collateral source rule — placing the full responsibility of the loss on the tortfeasor — was not harmed under the facts of that case. Therefore, the Paulson court favored a result that supported the long-standing policy encouraging settlement between the parties and the policy disfavoring double recovery.⁴⁰

¶ 42. The facts and circumstances of the litigation in Paulson were complex, but the ultimate facts before the Paulson court in determining the amount the tortfeasor owed Paulson by reason of the insurers' negotiated settlement appear straightforward and are comparable to the facts of the present case.

¶ 43. If Paulson governs the present case, the decision of the court of appeals would be affirmed.

y

¶ 44. The plaintiffs allege that significant differences exist between the instant case and the Paulson case.

¶ 45. First, the plaintiffs and the amicus, Wisconsin Association for Justice, assert that the plaintiffs' personal injury claim in the present case (in contrast to the property damage claim in Paulson) was indivisible and was the plaintiffs' alone to advance, and that American Family had no right to settle its subrogation claim until the plaintiffs had resolved their claims.

¶ 46. We agree with the plaintiffs that this court has stated that subrogation does not create a new cause of action separate from the injured party's cause of action.⁴¹ Nevertheless, this court has acknowledged that although there is one indivisible claim, subrogation creates an interest in the subrogee (the insurer) that is not wholly intertwined with that of the insured.

¶ 47. In Lambert v. Wrensch, 135 Wis. 2d 105, 107, 399 N.W.2d 369 (1987), for example, the insurer paid the injured party's medical expenses, but the insurer was barred by operation of the statute of limitations from pursuing its subrogation claim arising from those payments.⁴² The injured party, however, was still able to maintain its action against the tortfeasor for damages, although reduced by the amount previously received for medical expenses.⁴³ Lambert has been interpreted as holding that "where the insurer is barred from pursuing a claim [of subrogation], the tortfeasor is entitled to a reduction in judgment for the amount of that claim."⁴⁴

¶ 48. In the present case, the insurer, American Family, is barred by binding arbitration from pursuing its subrogation claim. If Lambert is applied, the defendant is entitled to a reduction in judgment for the amount of the insurer's subrogation claim.

¶ 49. Thus, we are not persuaded that characterizing the plaintiffs' personal injury claim as indivisible and characterizing the subrogation claim as inseparable from the plaintiffs' elements of loss distinguish the present case from Paulson or justify a different result.

¶ 50. Second, relying on the made whole doctrine and the concept that personal injury claims are indivisible, the plaintiffs contend that a subrogated insurer cannot settle its subrogation claim until the plaintiffs are made whole. The plaintiffs assert that the court of appeals allowed American Family to step ahead of the plaintiffs' claims.

¶ 51. This argument also fails to justify a different result than that reached in Paulson. Nowhere do the plaintiffs show that they were not made whole. In the present case, the plaintiffs stipulated to the reasonable value of the medical services. It is clear from the record that the defendant's insurance policy was more than sufficient to cover all of the damages suffered by the plaintiffs. The made whole doctrine is therefore not applicable in the present case, just as the made whole doctrine was not applicable in Paulson.45

¶ 52. Third, the plaintiffs suggest that the present case and Paulson differ because here the two insurers settled the subrogation claim by entering into binding arbitration, while in Paulson the insurers settled the subrogation claim by negotiation. Settlement through negotiation versus settlement through arbitration is a distinction without a difference for purposes of applying the teachings of Paulson.

¶ 53. Fourth, the plaintiffs attempt to distinguish Paulson and the instant case because here American Family received nothing for its subrogated claim, while in Paulson, the subrogated insurer settled for 70% of the value of its subrogation claim.

¶ 54. In Paulson, the insurers agreed that the injured party was contributorily negligent. The Paulson court concluded that "[i]n the context of contributory negligence, the tortfeasor has paid the full amount of the damage caused and the plaintiff, by fully recovering for the repair costs, has received whatever 'windfall' is created by the settlement."⁴⁶

¶ 55. In the present case, the arbitration panel found (and the insurers agreed) that the defendant was not causally negligent, and in the context of that finding the tortfeasor did not have to pay the subrogated insurer anything. Nevertheless, a jury found the defendant 100% causally negligent. The plaintiffs in the instant case fully recovered their medical expenses through payment by their insurer ($10,000) and payment by the defendant ($2,517.14).

¶ 56. Nothing in Paulson leads to the conclusion that the result in Paulson depends on the percentage the subrogated insurer recovers or fails to recover for its subrogation claim.

¶ 57. Fifth and finally, the plaintiffs argue that in the instant case they did not agree to American Family's dismissal from the action, whereas in Paulson the injured party agreed to allow its insurer to be dismissed from the lawsuit. The plaintiffs seem to be arguing that American Family has waived its subrogation claim and that under the collateral source rule a windfall created by a waived subrogation claim should inure to the plaintiffs, not to the defendant.⁴⁷

¶ 58. Relying on Radloff v. General Casualty Co., 147 Wis. 2d 14, 432 N.W.2d 597 (Ct. App. 1988), the plaintiffs assert that American Family lost its subrogation claim when it agreed to be dismissed from the case with prejudice. We disagree with the plaintiffs' reading of Radloff, and conclude that Radloff is inapposite.

¶ 59. In Radloff, the subrogated insurer (who was a party to the lawsuit) played no role in the lawsuit and exercised no option under Wis. Stat. § 803.03(2).⁴⁸ The Radloff court held that the insurer lost its subrogation claim.

¶ 60. Unlike the subrogated insurer in Radloff, American Family assiduously pursued its subrogation claim.

¶ 61. American Family arbitrated its subrogation claim. Furthermore, when the plaintiffs joined American Family in the lawsuit pursuant to Wis. Stat. § 803.03(2), American Family filed an answer and cross-complaint in the plaintiffs' lawsuit asserting its subrogation claim. Only after these active assertions did American Family seek dismissal of its subrogated claim.⁴⁹ At every step, American Family pressed its subrogation claim. Therefore, American Family's conduct is inconsistent with the concept of waiver.⁵⁰

¶ 62. American Family's situation is analogous to that of the subrogated insurers in Paulson and Lambert. In Paulson, the subrogated insurer moved to be dismissed from the case because the settlement of its subrogation claim with the tortfeasor's insurer barred the subrogation claim⁵¹ In Lambert, the subrogated insurer was barred from advancing its subrogation claim by the statute of limitations.⁵² In both Paulson and Lambert the insurers' subrogation claims were not viewed as lost; the insurer's subrogation claims did not inure to the injured party.

¶ 63. The distinction the plaintiffs try to draw is that the dismissal here, unlike the dismissals in Paulson and Lambert, was not done with the agreement of, or upon the motion of, the injured party. Further, the plaintiffs attempt to portray the arbitration as "secret" in that the plaintiffs were not given notice and did not have the opportunity to participate. We conclude that this distinction does not support a different result. American Family's settlement and dismissal (whether with or without the plaintiffs' participation or agreement) does not affect the plaintiffs' ability to recover the reasonable value of medical services. The important factor in the present case, as in Paulson and Lambert, is that the subrogated insurer may separately pursue its subrogation claim through a settlement agreement without affecting the injured party's ability to recover for the injury.

¶ 64. We further support our conclusion by examining Voge v. Anderson, 181 Wis. 2d 726, 512 N.W.2d 749 (1994). Voge presented two issues and the court rendered two rulings — one relating to UIM payments and the other relating to medical benefits payments. Our conclusion in the present case is supported by both rulings in Voge. The second ruling is directly on point.

¶ 65. With regard to the UIM ruling in the Voge case: In Voge, American Family paid its insured, the injured party, $150,000 UIM benefits after a jury verdict. It also entered into a stipulation with its insured, the injured party, stating that American Family "waived any and all subrogation rights which it may have had to seek reimbursement" from the tortfeasor or the tortfeasor's insurance company.⁵³

¶ 66. The tortfeasor and the tortfeasor's insurance company asserted that they were entitled to a reduction in judgment in the amount of $150,000 for the UIM benefits paid by American Family. The court held against the tortfeasor's insurance company on the ground that American Family had waived its right to subrogation and thus the collateral source rule applied.⁵⁴ The court reasoned that American Family "explicitly waived its rights to subrogation and thus never possessed the right to recover the UIM benefits; the claim to recover such damages remained at all times with [the injured party]."⁵⁵ Thus, the collateral source rule, not subrogation, governed the UIM payments.⁵⁶ The insured got the windfall created by American Family's waiver of its subrogation rights, not the tortfeasor.

¶ 67. In contrast to Voge, in the present case, as in Paulson, the subrogated insurance company did not explicitly waive its subrogation rights. Accordingly, the UIM ruling in Voge supports our conclusion in the present case.

¶ 68. With regard to the medical benefits ruling in the Voge case: Prior to commencement of the Voge lawsuit, American Family paid its insured no-fault medical payments in the amount of $5,895.75 under the automobile insurance policy (in contrast with the UIM portion of the policy). American Family did not waive its rights to subrogation for that amount.⁵⁷

¶ 69. Also, before commencement of the injured party's lawsuit, American Family pursued and settled its subrogation claim arising from the medical payments through arbitration with the tortfeasor's insurance company.⁵⁸ American Family recovered 70% of its medical payments from the tortfeasor's insurance company through arbitration.⁵⁹

¶ 70. In its answer to the injured party's complaint, American Family, the subrogated insurer, stated that it would waive any rights to subrogation for the medical payments.⁶⁰ The Voge court concluded that this waiver (after an arbitration proceeding with the tortfeasor's insurance company) was unenforceable. The court concluded that the insurer had already pursued its subrogation rights through arbitration and recovered the amount it was entitled to recover from the tortfeasor's insurance company.⁶¹

¶ 71. The Voge court held that "[u]nlike the UIM benefits, then, the right to recover the medical payments was never possessed by Voge [the injured party]. Thus, Voge is not entitled to recover for such expenses."⁶² The Voge court concluded that the tortfeasor's insurance company is entitled to a reduction in the jury award equal to the medical expenses paid to the injured party by the injured party's subrogated insurance company.⁶³

¶ 72. The present case, like Voge, involves no-fault medical payments made by the injured party's insurance company to the injured party; a subrogated insurance company that did not explicitly waive its subrogation rights; and two insurance companies that arbitrated the subrogation rights prior to commencement of the injured party's lawsuit.

¶ 73. Applying the teachings of Voge v. Anderson supports our conclusion that the plaintiffs in the present action are not entitled to recover the value of American Family's subrogation claim that American Family pursued and lost in arbitration.

¶ 74. We conclude that in all significant respects the present case is indistinguishable from Paulson, and that therefore the present case is governed by Paulson. Accordingly, we conclude that the collateral source rule does not, under the facts of the present case, entitle the plaintiffs to recover $10,000, the value of their insurer's subrogation claim. For the reasons set forth, we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

1 Fischer v. Steffen, 2010 WI App 68, 325 Wis. 2d 382, 783 N.W.2d 889.

2 Paulson v. Allstate Ins. Co, 2003 WI 99, ¶ 27, 263 Wis. 2d 520, 665 N.W.2d 744.

3 Id., ¶¶ 27, 32.

4 Id., ¶¶ 27, 42.

5 Id., ¶ 27.

6 Id., ¶ 32.

7 Id., ¶ 34.

8 Id., ¶ 42.

9 Id.

¹⁰

11 Id., ¶ 43.

¹²

13 Paulson, 263 Wis. 2d 520, ¶ 45. See also id., ¶ 46 (Bradley, J., concurring) ("I write separately to underscore what the majority repeatedly notes: the holding of this case is limited to the facts of this case.").

14 All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

Wisconsin Stat. § 803.03(2) "is intended to foster economy of judicial effort by requiring that all 'parts' of a single cause of action whether arising by subrogation, derivation, or assignment, be brought before the court in one action." Judicial Council Committee's Note, 1974, Wis. Stat. § 803.03.

15 Fischer v. Steffen, 2010 WI App 68, 325 Wis. 2d 382, 783 N.W.2d 889.

16 See, e.g., Paulson, 263 Wis. 2d 520, ¶ 19 (subrogation and collateral source rule); Ruckel v. Gassner, 2002 WI 67, ¶ 13, 253 Wis. 2d 280, 646 N.W.2d 11 (made whole doctrine).

17 See, e.g., Koffman v. Leichtfuss, 2001 WI 111, ¶ 29, 246 Wis. 2d 31, 630 N.W.2d 201; Ellsworth v. Schelbrock, 2000 WI 63, ¶ 7, 235 Wis. 2d 678, 611 N.W.2d 764.

18 Koffman, 246 Wis. 2d 31, ¶ 40.

19 Ellsworth, 235 Wis. 2d 678, ¶ 7.

20 Koffman, 246 Wis. 2d 31, ¶ 29.

21 Muller v. Society Ins., 2008 WI 50, ¶¶ 22-25, 309 Wis. 2d 410, 750 N.W.2d 1; Paulson, 263 Wis. 2d 520, ¶ 29; Koffman, 246 Wis. 2d 31, ¶ 33; Wilmot v. Racine County, 136 Wis. 2d 57, 63, 400 N.W.2d 917 (1987).

22 See, e.g., Muller, 309 Wis. 2d 410, ¶¶ 23-24; Ruckel, 253 Wis. 2d 280, ¶¶ 14-15; Koffman, 246 Wis. 2d 31, ¶¶ 33, 40.

23 Muller, 309 Wis. 2d 410, ¶¶ 27-47; Garrity v. Rural Mut. Ins. Co., 77 Wis. 2d 537, 542, 253 N.W.2d 512 (1977); Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 275-76, 316 N.W.2d 348 (1982).

²⁴

25 Muller, 309 Wis. 2d 410, ¶ 26; Schulte v. Frazin, 176 Wis. 2d 622, 628, 500 N.W.2d 305 (1993).

26 Paulson, 263 Wis. 2d 520, ¶ 17; Muller, 309 Wis. 2d 410, ¶ 26.

27 Paulson, 263 Wis. 2d 520, ¶ 17.

28 Id., ¶ 4.

²⁹

30 Id., ¶ 5.

³¹

32 Id., ¶ 6.

³³

34 Id., ¶ 7.

35 Id., ¶ 8.

36 Id., ¶ 13.

³⁷

³⁸

³⁹

40 Id., ¶ 41.

41 Wilmot, 136 Wis. 2d at 63; Muller v. Society Ins., 2008 WI 50, ¶ 53, 309 Wis. 2d 410, 750 N.W.2d 1 ("[A]n insurer whose policy with an insured includes a right to subrogation possesses an independent 'cause of action against the tortfeasor and the tortfeasor's insurer for its subrogated interest.' The interests of the insurer and insured exist as 'each owning separately a part of the claim against the tortfeasor'" (citations omitted).).

42 Lambert v. Wrensch, 135 Wis. 2d 105, 107, 399 N.W.2d 369 (1987)

43 Id. at 118-20.

44 Voge v. Anderson, 181 Wis. 2d 726, 732, 512 N.W.2d 749 (1994), quoted with approval in Koffman, 246 Wis. 2d 31, ¶ 39.

45 The made whole doctrine was not applicable in Paulson. Paulson made no assertion that there was an insufficient pool of money. The competition between the insured and insurer for a limited amount of funds was not raised by the facts. Paulson, 263 Wis. 2d 520, ¶ 27.

46 Paulson, 263 Wis. 2d 520, ¶ 44.

47 If a subrogee waives a subrogation claim the collateral source rule applies to allow the injured party to recover and get a windfall. See Voge, 181 Wis. 2d at 728, 730-33.

48 Once joined, a subrogated party has the following options under Wis. Stat. § 803.03(2):

a. Participate in the litigation.

b. Agree to have his or her interest represented by the party who caused the joinder.

c. Move for dismissal with or without prejudice.

49 See, e.g., Ryan v. Sigmund, 191 Wis. 2d 178, 182-83, 528 N.W.2d 43 (Ct. App. 1995) (determining Radloff was inapposite, when the subrogated insurer filed an answer, counterclaim, and cross-claim asserting its subrogation interest, but later sought and obtained the court's permission to be excused from further participation in the litigation).

50 Ryan, 191 Wis. 2d at 183 ("[The subrogee's] request not to participate in the trial under these circumstances did nothing to impair the efficient and orderly disposition of the case").

51 Paulson, 263 Wis. 2d 520, ¶ 32.

52 Lambert, 135 Wis. 2d at 107.

53 The jury found the injured party 15% contributorily negligent. Voge, 181 Wis. 2d at 729.

54 Id. at 732.

⁵⁵

56 Id. at 732-33.

57 Id. at 730.

58 Id. at 733-34.

⁵⁹

⁶⁰

⁶¹

62 Id. at 734.

⁶³