Ives v. Coopertools

Wisconsin Supreme Court

Ives v. Coopertools

559 N.W.2d 571, 208 Wis. 2d 55, 1997 Wisc. LEXIS 21

CourtWisconsin Supreme Court

DecidedFebruary 28, 1997

Docket95-0932

StatusPublished

Cited by19 cases

This text of 559 N.W.2d 571 (Ives v. Coopertools) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ives v. Coopertools, 559 N.W.2d 571, 208 Wis. 2d 55, 1997 Wisc. LEXIS 21 (Wis. 1997).

Pincite

Opinions

PER CURIAM.

¶ 1. This is a review of a published decision of the court of appeals,¹ vacating the order of the Circuit Court for Oneida County, Robert E. Kinney, Judge. The question in this case is whether a subrogated insurer is entitled to reimbursement on its lien when the injured plaintiffs settle with the alleged tortfeasors before trial for an amount less than their total damages. We unanimously conclude that the court of appeals erred in its holding that there must be a determination of Michael Ives' contributory negligence, if any, before the question of reimbursement to Rhinelander can be considered. However, we are evenly divided on the reasons for this conclusion.

¶ 2. The published opinion of the court of appeals here should not stand when we unanimously agree that it does not state the law in Wisconsin. The court in State v. Gustafson, 121 Wis. 2d 459, 462, 359 N.W.2d 920, cert. denied, 471 U.S. 1056 (1985), affirmed a con[58]*58viction where a majority of the court concluded there was prejudicial error, but no majority agreed on a particular error. There, a reversal would have sent the matter back for a new trial, but without providing adequate guidance to the circuit court. Id. at 462, citing Will of McNaughton, 138 Wis. 179, 118 N.W. 997, 120 N.W. 288 (1909). Here, however, we are in agreement as to the proper resolution of the contributory negligence question. Thus, despite our even division on the rationale for our decision, we affirm the order of the circuit court.

¶ 3. The situation at hand is unlike the case of a tie vote on a certification or bypass. In such instance, if we allow the circuit court's decision to stand the parties have in effect been denied a full appellate review and opinion. State v. Richard Knutson, Inc., 191 Wis. 2d 395, 396, 528 N.W.2d 430 (1995). Here, the parties have had the opportunity of full review by both this court and the court of appeals. Our division on reasoning simply means that the analyses of the two concurrences have no precedential value. State ex rel. Thompson v. Jackson, 199 Wis. 2d 714, 719, 546 N.W.2d 140 (1996) (citing State v. Elam, 195 Wis. 2d 683, 685, 538 N.W.2d 249 (1995) (a majority of justices must have agreed on a particular point for it to be considered the opinion of the court).

¶ 4. Chief Justice Shirley S. Abrahamson, Justice William A. Bablitch and Justice Janine P. Geske would vote to reaffirm the made whole rule enunciated in Garrity v. Rural Mutual Ins. Co., 11 Wis. 2d 537, 253 N.W.2d 512 (1977) and Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982), but would overrule Sorge v. National Car Rental System, Inc., 182 Wis. 2d 52, 57, 512 N.W.2d 505 (1994). This [59]*59rule focuses on what an injured plaintiff has lost, and not on what an injured plaintiff can legally receive.² Justices Donald W. Steinmetz, Jon P. Wilcox and N. Patrick Crooks would conclude that, in the case of a settlement before trial, the circuit court should assess the subrogated insurer's rights of recovery at a rate equal to the percentage of the plaintiffs recovery in relation to his or her gross damages. Attorney's fees and costs may be handled on a pro rata basis as well, if the insurer is not represented by counsel.³ Justice Ann Walsh Bradley did not participate.

¶ 5. By the Court. — For the reasons set forth, the decision of the court of appeals is reversed, and the order of the circuit court denying Rhinelander's claim for reimbursement is affirmed.

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PER CURIAM.

¶ 1. This is a review of a published decision of the court of appeals,¹ vacating the order of the Circuit Court for Oneida County, Robert E. Kinney, Judge. The question in this case is whether a subrogated insurer is entitled to reimbursement on its lien when the injured plaintiffs settle with the alleged tortfeasors before trial for an amount less than their total damages. We unanimously conclude that the court of appeals erred in its holding that there must be a determination of Michael Ives' contributory negligence, if any, before the question of reimbursement to Rhinelander can be considered. However, we are evenly divided on the reasons for this conclusion.

¶ 2. The published opinion of the court of appeals here should not stand when we unanimously agree that it does not state the law in Wisconsin. The court in State v. Gustafson, 121 Wis. 2d 459, 462, 359 N.W.2d 920, cert. denied, 471 U.S. 1056 (1985), affirmed a con[58]*58viction where a majority of the court concluded there was prejudicial error, but no majority agreed on a particular error. There, a reversal would have sent the matter back for a new trial, but without providing adequate guidance to the circuit court. Id. at 462, citing Will of McNaughton, 138 Wis. 179, 118 N.W. 997, 120 N.W. 288 (1909). Here, however, we are in agreement as to the proper resolution of the contributory negligence question. Thus, despite our even division on the rationale for our decision, we affirm the order of the circuit court.

¶ 3. The situation at hand is unlike the case of a tie vote on a certification or bypass. In such instance, if we allow the circuit court's decision to stand the parties have in effect been denied a full appellate review and opinion. State v. Richard Knutson, Inc., 191 Wis. 2d 395, 396, 528 N.W.2d 430 (1995). Here, the parties have had the opportunity of full review by both this court and the court of appeals. Our division on reasoning simply means that the analyses of the two concurrences have no precedential value. State ex rel. Thompson v. Jackson, 199 Wis. 2d 714, 719, 546 N.W.2d 140 (1996) (citing State v. Elam, 195 Wis. 2d 683, 685, 538 N.W.2d 249 (1995) (a majority of justices must have agreed on a particular point for it to be considered the opinion of the court).

¶ 4. Chief Justice Shirley S. Abrahamson, Justice William A. Bablitch and Justice Janine P. Geske would vote to reaffirm the made whole rule enunciated in Garrity v. Rural Mutual Ins. Co., 11 Wis. 2d 537, 253 N.W.2d 512 (1977) and Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982), but would overrule Sorge v. National Car Rental System, Inc., 182 Wis. 2d 52, 57, 512 N.W.2d 505 (1994). This [59]*59rule focuses on what an injured plaintiff has lost, and not on what an injured plaintiff can legally receive.² Justices Donald W. Steinmetz, Jon P. Wilcox and N. Patrick Crooks would conclude that, in the case of a settlement before trial, the circuit court should assess the subrogated insurer's rights of recovery at a rate equal to the percentage of the plaintiffs recovery in relation to his or her gross damages. Attorney's fees and costs may be handled on a pro rata basis as well, if the insurer is not represented by counsel.³ Justice Ann Walsh Bradley did not participate.

¶ 5. By the Court. — For the reasons set forth, the decision of the court of appeals is reversed, and the order of the circuit court denying Rhinelander's claim for reimbursement is affirmed.

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559 N.W.2d 571, 208 Wis. 2d 55, 1997 Wisc. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ives-v-coopertools-wis-1997.

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