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Wolters v. American Republic Insurance Company6/27/2003
explained:
ecovery for medical insurance benefits and tort damages does not necessarily produce a windfall or duplicative recovery. Most always when there is tort recovery the consideration for payment by the tortfeasor includes loss of wages, loss of earning capacity, pain and suffering, permanent or temporary physical impairment, medical expenses, property damages and intangible losses which are not susceptible to exact measurement. The principles which cause us to recognize equitable subrogation in property disputes are not present in the field of medical expense payments for personal injuries.
American Pioneer Life Insurance Co. v. Rogers, 753 S.W.2d 530, 532-33 (1988); see Frost, 436 N.E.2d at 390-91.
We find these cases persuasive. Granting health insurance companies a right, absent an express clause in an insurance policy, to recoup expenditures from a settlement or judgment for a plaintiff for whom it paid medical expenses, does not advance the purpose of equitable subrogation. We have noted that subrogation is generally not allowed where the insured's total recovery is less than the insured's actual loss. Dimick, 127 N.H. at 144. Settlements in particular "usually involve a reduced recovery," thereby militating against an implied right of subrogation. See id. Consequently, the plaintiff is generally not receiving a windfall if he or she receives both medical insurance benefits and settlement proceeds or damages against the tortfeasor in a personal injury case.
Nonetheless, we agree with the trial court that even if the plaintiff received a duplicative benefit of medical expenses for the same injury through the settlement, "the more equitable result is to permit to recover because he has paid for the benefits in the form . . . of insurance premiums." Merchants Mut. Ins. Group v. Orthopedic Prof. Ass'n, 124 N.H. 648, 658-59 (1984) (superseded by statute).
The defendant argues that the trial court erred in finding that the subject policy was an investment policy, for which subrogation is generally denied absent an express contractual agreement, rather than an indemnity policy. It argues that the court erred in characterizing all medical or healthcare policies as investment policies rather than indemnity policies, and that a review of the subject policy establishes that it is of an indemnity nature. We agree with the plaintiff that the label attached to the insurance policy is inconsequential to our holding. It is the equitable principles involved that control our decision. See, e.g., American Pioneer Life Ins. Co., 753 S.W.2d at 532-33; Schultz, 561 N.E.2d at 654; Frost, 436 N.E.2d at 390. Moreover, even if we were to consider the issue, the defendant failed to present the subject policy to either the trial court or this court for review. It therefore failed to carry its burden of creating a sufficient record for review on appeal. Appeal of Montplaisir, 147 N.H. 297, 304 (2001).
We hold that a health insurance company has no common law or equitable right to subrogation, and that " f such a company desires protection against loss caused by the wrongs of third persons who would ordinarily be liable they must do so by the contracts they make." Gatzweiler, 116 N.W. at 634.
Affirmed.
BROCK, C.J., and BRODERICK, NADEAU and DUGGAN, JJ., concurred.
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