Orlowski v. State Farm Mutual Automobile Insurance

2012 WI 21, 810 N.W.2d 775, 339 Wis. 2d 1, 2012 WL 745066, 2012 Wisc. LEXIS 17
CourtWisconsin Supreme Court
DecidedMarch 7, 2012
DocketNo. 2009AP2848
StatusPublished
Cited by12 cases

This text of 2012 WI 21 (Orlowski v. State Farm Mutual Automobile Insurance) 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
Orlowski v. State Farm Mutual Automobile Insurance, 2012 WI 21, 810 N.W.2d 775, 339 Wis. 2d 1, 2012 WL 745066, 2012 Wisc. LEXIS 17 (Wis. 2012).

Opinion

N. PATRICK CROOKS, J.

¶ 1. This case is before this court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2009-10). It concerns the proper measure of damages in an action to recover under an injured party's underinsured motorist (UIM) coverage. We resolve this question in the context of the limited scope of review of an arbitration panel's decision.

¶ 2. In this case, the injured party, Lindy Orlowski (Orlowski), submitted a claim to State Farm Mutual Automobile Insurance Company (State Farm) under her UIM coverage after exhausting the policy limits of the underinsured motorist. Pursuant to the arbitration provision in the UIM coverage portion of her policy, Orlowski and State Farm submitted the question of damages to an arbitration panel. The panel concluded that the court of appeals decision in Heritage Mutual Insurance Company v. Graser, 2002 WI App 125, 254 Wis. 2d 851, 647 N.W.2d 385, precluded Orlowski from recovering under her UIM coverage the value of medical expenses that were written off by her medical provider.1

¶ 3. Orlowski petitioned the circuit court for modification of the arbitration award pursuant to Wis. Stat. § 788.11 (2007-08),2 arguing that the panel erroneously relied on Graser. The circuit court for Milwaukee County, the Honorable Dennis P Moroney presiding, agreed and modified the arbitration award to include the value of the written-off medical expenses. The court of appeals certified the case to this court because it [6]*6perceived an irreconcilable conflict between Graser's holding that the collateral source rule has no application in UIM cases and this court's precedent on the law of damages and the collateral source rule. Further, the court of appeals noted that Orlowski's policy required the arbitration panel to award the amount that she was "legally entitled to collect" from the underinsured motorist, which is controlled by this court's precedent on the collateral source rule and tort damages.

¶ 4. We reaffirm what our prior precedent has clearly established: an injured party is entitled to recover the reasonable value of medical services, which, under the operation of the collateral source rule, includes written-off medical expenses. We overrule Graser to the extent that it holds that the collateral source rule has no application in cases involving UIM coverage. The arbitration panel's decision in this case was properly modified by the circuit court pursuant to Wis. Stat. § 788.10 and § 788.11 because the arbitrators exceeded their authority by failing to fully review and apply this court's decisions on the collateral source rule and the law of damages. Such review and application was required by the questions submitted from the policy language directing the panel to award Orlowski the amount that she was "legally entitled to collect" from the underinsured motorist.

¶ 5. Therefore, we affirm the circuit court's decision modifying the arbitration panel's award to include the reasonable value of Orlowski's medical services.

I. BACKGROUND

¶ 6. On December 30, 2004, Orlowski was involved in a motor vehicle accident caused by an under-insured driver. Orlowski recovered damages up to the [7]*7limits of the underinsured driver's insurance. Orlowski had health insurance coverage with United Healthcare, which paid a portion of Orlowski's medical expenses as a result of the accident. She also had an automobile insurance policy with State Farm including UIM coverage.

¶ 7. After exhausting the underinsured motorist's coverage, Orlowski submitted a claim to State Farm to recover under her UIM coverage. Pursuant to the UIM coverage portion of her policy, an arbitration panel was selected to decide two questions: "1. Is the insured legally entitled to collect damages from the owner or driver of the uninsured motor vehicle or underinsured motor vehicle; and 2. If so, in what amount?"3

¶ 8. The arbitration panel awarded Orlowski $11,498.55 for medical services provided to her as a result of the accident: $9,498.55 for the medical lien claimed by United Healthcare and $2,000 for Orlowski's out-of-pocket medical expenses.4 The arbitration panel did not include in its award the amount of Orlowski's medical expenses that had been written off by her medical provider because of discounts through her [8]*8health insurance coverage with United Healthcare.5 The panel did not include these written-off medical expenses in its award because it concluded that the court of appeals decision in Graser, 254 Wis. 2d 851, provided that the collateral source rule did not apply to UIM claims and thus did not allow Orlowski to recover these expenses. At Orlowski's request, the arbitration panel submitted a supplemental decision concluding "that the necessary and reasonable value of the medical services provided to Mrs. Orlowski as a result of the accident is [$72,985.94]." The dispute in this case is over the $61,487.39 in medical expenses that were written off by Orlowski's medical provider — the difference between the reasonable value of medical expenses and the $11,498.55 in medical expenses that the panel awarded to Orlowski.

¶ 9. Orlowski petitioned the Milwaukee County Circuit Court for modification of the arbitration award pursuant to Wis. Stat. § 788.11.6 Orlowski argued that [9]*9the arbitration award must be modified because the arbitration panel improperly interpreted and relied on Graser, 254 Wis. 2d 851. State Farm argued that Orlowski had not provided any basis upon which the circuit court could modify the award in accordance with Wis. Stat. § 788.10 and § 788.11. Further, State Farm asserted that the arbitration panel properly applied Graser.

¶ 10. The circuit court, the Honorable Dennis E Moroney presiding, modified the arbitration decision to award Orlowski the full reasonable value of medical expenses, $72,985.94.7 The circuit court stated that the court of appeals decision in Graser failed to give appropriate weight to the "concept of people buying [UIM insurance] for their own protection" to be "made whole" after being injured in an accident caused by an under-insured driver. The circuit court emphasized that allowing Orlowski to recover the full reasonable value of medical services, including written-off medical expenses, is less about the collateral source rule and more [10]*10about giving her the benefit of what she contracted for. The circuit court stated that under Wisconsin law, insureds "have a right to at least be covered to the extent of what they bargained for." The circuit court limited Graser's applicability to only those cases involving recovery based on a waived subrogation right. The circuit court concluded that the arbitration panel's interpretation of Graser improperly limits the collateral source rule.

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2012 WI 21, 810 N.W.2d 775, 339 Wis. 2d 1, 2012 WL 745066, 2012 Wisc. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orlowski-v-state-farm-mutual-automobile-insurance-wis-2012.