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Petta v. ABC Insurance Co.2/24/2005
s must take priority. If the made-whole doctrine was inapplicable to wrongful death plaintiffs, the wrongful death statute's purpose of compensating wrongful death beneficiaries for the loss of relational interest between the beneficiaries and the deceased would be impinged. See Chang, 182 Wis. 2d at 560. We have already established that John and Rachelle were statutorily entitled to manage a claim for property damage, as well as make claims for medical and funeral expenses as part of their wrongful death cause of action. Rimes confirmed that a cause of action against the tortfeasor is indivisible. Rimes, 106 Wis. 2d at 275. Thus, these claims are inseparable from John and Rachelle's claims for their own losses of pecuniary injury and loss of society and companionship.
. Here, John and Rachelle disposed of these claims by fully settling and releasing the defendants (other than Travco), but they did so with a lump-sum settlement. Ordinarily, we have no way of knowing what damages the lump-sum, non-apportioned, settlement covers. That is why Rimes requires a hearing to prove up damages so that the settlement's reach in relation to actual damages can be determined. In this case, however, we do know that the entirety of the settlement insufficiently compensated John and Rachelle for their losses because Travco stipulated that the settlement did not make them whole. It would be contrary to the wrongful death statute's purpose to subject John and Rachelle to further loss by forcing them to pay out funds to another from a settlement that by itself is inadequate. Thus, their claim must take priority.
. Second, we see no conceptual difference between a personal injury case involving a subrogated insurer, as in Rimes, and a wrongful death case involving a subrogated insurer. In a personal injury case where the plaintiff is insured, the plaintiff's insurer will ordinarily pay for any medical expenses and property damage. Travco did that here. In the personal injury plaintiff's suit against the tortfeasor, the plaintiff will claim as damages the medical expenses and property damage even though the plaintiff did not actually pay for those expenses. John and Rachelle did that here. In the personal injury plaintiff's settlement with the tortfeasor, there will usually be a full settlement and release. That was done here. And in the plaintiff's personal injury case, this court has said that the subrogated insurer cannot invade the plaintiff's settlement unless the plaintiff has received an award which pays "all of his [or her] elements of damages, including those for which he has already been indemnified by an insurer." Rimes, 106 Wis. 2d at 275. We see no reason why this conceptual framework does not apply to wrongful death plaintiffs.
. Third, because " quity does not lend itself to the application of black letter rules," subrogation "depends upon a just resolution of a dispute under a particular set of facts." Vogt v. Schroeder, 129 Wis. 2d 3, 12, 383 N.W.2d 876 (1986). The equitable considerations balanced by the made-whole doctrine are "an insurer's right to recoup benefits paid and an injured person's right to obtain full compensation." Schulte, 176 Wis. 2d at 630. Here, the two considerations being balanced are the wrongful death plaintiffs' right of full recovery and to manage their wrongful death action according to the wrongful death statute against an insurer's right to recoup benefits paid. What has traditionally tipped the balance in favor of an injured person's right to be made whole as the just resolution is that the insurer has been paid to accept the risk that it may go unpaid. Garrity, 77 Wis. 2d 542. We see no reason, and neither has Travco provided us with one, why John and Rachel
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