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Petta v. ABC Insurance Co.2/24/2005
maintained that they were entitled to bring a claim for funeral and medical expenses pursuant to Wis. Stat. § 895.04(5), and that they had a claim for the value of the destroyed car as a "pecuniary injury" under Wis. Stat. § 895.04(4). However, they submitted that they nonetheless had not been made whole for their damages. Because Travco stipulated that the entire settlement did not make John and Rachelle whole, John and Rachelle argued that Travco no longer had subrogation rights.
. Travco resisted, claiming that because John and Rachelle were not its insureds, Rimes and its progeny simply did not apply. The trial court disagreed. The trial court concluded that because the settlement did not make John and Rachelle whole, and because they agreed to indemnify the tortfeasors, Travco could not pursue a subrogation claim against the tortfeasors.
. Travco appealed, and, in the published opinion of Petta v. ABC Insurance Co., 2003 WI App 241, 268 Wis. 2d 153, 672 N.W.2d 146, the court of appeals reversed. Although John and Rachelle did not pay for Dayle's medical or funeral expenses or for the damage to her vehicle, the court agreed that John and Rachelle owned claims for these damages, but concluded their ownership was not exclusive. Id., . The court concluded that John and Rachelle could bring these claims on behalf of the payor, Travco, and were not entitled to retain any recovery on these claims because they did not pay for the expenses. Id. According to the court of appeals, " here should be no recovery where there is no injury." Id., .
. The court of appeals also rejected John and Rachelle's argument that the Rimes made-whole doctrine precluded Travco's subrogation claims. The court held that Rimes applied only in situations of an insurer-insured relationship. Id., -14. Because it was undisputed that John and Rachelle were not Travco's insureds, the court concluded that the made-whole doctrine was inapplicable. Id. In closing, the court supposed that if Rimes were applied in this situation, it would set a dangerous precedent. Id., . The court posited:
If there were multiple plaintiffs against a common tortfeasor based on a single incident, the plaintiffs could "race" to settlement. The first to settle and indemnify the tortfeasor could show that he or she was not made whole and, if Rimes applied, extinguish not only subrogation claims but also the other plaintiffs' claims. This takes Rimes to a place it was never intended to go.
Id.
. We accepted John and Rachelle's petition for review, and we reverse.
II.
. Whether a party's subrogation rights limit a plaintiff's right to recovery is a question of law we review de novo. See Koffman v. Leichtfuss, 2001 WI 111, , 246 Wis. 2d 31, 630 N.W.2d 201. This case also requires interpretation of the wrongful death statute, as well as consideration of whether the made-whole doctrine applies to wrongful death plaintiffs. Both issues are questions of law we review de novo. See Ruckel v. Gassner, 2002 WI 67, , 253 Wis. 2d 280, 646 N.W.2d 11.
III.
. As part of their wrongful death claim, John and Rachelle have asserted claims for medical and funeral expenses, and have disposed of a potential claim for property damage expenses. Travco has paid for all of these underlying expenses, and, accordingly, John and Rachelle agree that Travco has subrogated interests in these claims. They further agree that they are not Travco's insured. Nevertheless, they argue that because subrogation and its antisubrogation counterpart embodied in Rimes are fundamentally equitable doctrines, Rimes should apply to preserve their settlement proceeds that all p
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