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Waters v. Keelan11/23/1992
Colo. App. 357, 565 P.2d 970 (1977). Such an approach is consistent with the legislative intent underlying section 13-21-111.6, see Comments of Senator Meiklejohn, maj. op. at 18-19 (insurance company that pays hospitalization should be allowed to "collect from the tortfeasor to get their money back," and the injured party should collect only once on those economic damages), and addresses three main policy concerns: (1) plaintiffs will be compensated for their injury ; (2) insurance companies will be reimbursed for their expenditures on plaintiffs' behalf, minimizing the societal cost of insurance; and (3) tortfeasors will bear the full economic cost of their actions.
However, there properly may be a line drawn between insurance, for which there is subrogation or refund of benefits provisions, and benefits represented by life insurance, retirement benefits, and disability pensions, for which there is no subrogation. These types of benefits may be regarded as "the proceeds of an investment rather than as an indemnity for damages." Helfend v. Southern California Rapid Transit Dist., 2 Cal. 3d 1, 84 Cal. Rptr. 173, 465 P.2d 61, 67 n.17 (Cal. 1970) (quoting Anheuser-Busch, Inc. v. Starley, 28 Cal. 2d 347, 170 P.2d 448, 453 (Cal. 1946) (Traynor, J., Dissenting)). Under those circumstances, it is proper to permit plaintiffs to benefit from their own prudence, rather than tortfeasors. See Comments of Senator Meiklejohn, maj. op. at 19 (it would be an "inJustice" to apply retirement benefits and life insurance against the damages in a lawsuit). A holding to the contrary would leave a plaintiff who has the foresight to invest in life insurance, retirement benefits and disability benefits in a worse economic position than an individual without such foresight. The prudent individual will have borne the economic cost of purchasing this investment, but will earn no benefit for their foresight. See Helfend, 465 P.2d at 66.
Accordingly, I specially concur in the majority opinion.
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