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Petta v. ABC Insurance Co.2/24/2005
le's lack of status as "insureds" shifts the equitable balance in Travco's favor. Although John and Rachelle have not paid Travco the premiums, Travco was nonetheless paid a premium to accept the risk that it would go unpaid. We therefore conclude that the equitable balance still tips in the injured person's favor, in this case the wrongful death plaintiff's right, to obtain full recovery.
. Fourth, the Schulte court recognized that "settling plaintiffs and subrogated insurers usually compete in a practical sense for limited settlement funds." Schulte, 176 Wis. 2d at 633. That competition is just as real here. And as in Schulte, this competition is an equitable factor we cannot ignore. See Id.
. Fifth, if Rimes did not apply, this state's policy of encouraging settlement would suffer in wrongful death actions. See Schulte, 176 Wis. 2d at 634 ("Wisconsin has a 'long-standing policy in favor of settlements.'") (citations omitted). Just as in personal injury contexts, a tortfeasor in a wrongful death action "may quite reasonably not be willing to offer the maximum amount possible to settle unless he receives a complete release." Id. We have already precluded a subrogated insurer's ability to frustrate an insured's attempts to settle disputes out of court on the insured's terms. Id. at 634-35. Travco has not provided us with any persuasive reason as to why wrongful death plaintiffs should be treated differently.
. For these reasons, we conclude that the Rimes made-whole doctrine and the Schulte settlement procedure apply to wrongful death plaintiffs. Here, it is undisputed that John and Rachelle properly followed the Schulte procedure to determine the status of Travco's subrogation rights. Because Travco stipulated that the $280,000 settlement did not make John and Rachelle whole, its subrogation rights are consequently extinguished.
. Before closing, we comment on Travco's, and the court of appeals', concern that our conclusion today will do harm in multiple plaintiff litigation. Our conclusion today addresses only the extension of Rimes to wrongful death actions that involve a subrogated insurer. To whatever extent that our reasoning can be construed as applying to multiple plaintiff litigation, we come full circle from where this part of the discussion began: subrogation and its antisubrogation counterpart are fundamentally equitable concepts. Thus, equity is the bulwark against the horribles that Travco and the court of appeals fear. Outside of situations where a person has a competing claim with a subrogated insurer, the equities will vary dramatically.
IV.
. In conclusion, equity requires that Rimes and its progeny apply to wrongful death plaintiffs. Wrongful death plaintiffs are entitled to be made whole for their losses, but not more than whole. To the extent that wrongful death plaintiffs receive a portion of damages for expenses they have not incurred after having been made whole for their losses, they have been unjustly enriched. However, because of Travco's stipulation that John and Rachelle's lump-sum settlement did not make them whole, those circumstances are absent here. Therefore, Travco's subrogation rights are extinguished.
By the Court.-The decision of the court of appeals is reversed.
JON P. WILCOX, J. (concurring).
. I write separately to restate some basic rules of subrogation in order to address the court of appeals' concern over the application of the made-whole doctrine in this case. Further, I wish to state that in my view, the only reason the plaintiffs in this wrongful death action are allowed to defeat Travco's right of subrogation is because Travco stipulated that th
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