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Petta v. ABC Insurance Co.2/24/2005
. Assume plaintiff A settles with a tortfeasor and further agrees to indemnify that tortfeasor against claims brought by plaintiffs B and C or their insurers. Unless plaintiffs B or C or their insurers have paid part of the loss suffered by plaintiff A, there is no subrogation relationship between the parties. That is, unless some other party has indemnified plaintiff A, there is no relation of subrogee and subrogor and no subrogation rights exist. If there is no subrogation relationship in the first instance, then the made-whole doctrine has no relevance. In the absence of inter-plaintiff indemnification, each plaintiff possesses a separate independent claim against the tortfeasor. In contrast, the made-whole doctrine applies where two parties each own part of a single claim by virtue of a subrogation relationship and are forced to compete for limited funds. See Paulson, 263 Wis. 2d 520, -28. While a Schulte settlement forces a subrogee and subrogor to compete for limited funds, it does not create the subrogation relationship between the two.
. Thus, the fact that multiple plaintiffs may compete for limited funds when pursuing a common tortfeasor does not trigger application of the made-whole doctrine unless they each own part of the others' claim. Where multiple plaintiffs each possess independent claims against a common tortfeasor and there is no subrogation relationship between them in the first instance, a Schulte settlement does not create subrogation rights and the made-whole doctrine has no application.
. However, the result of the majority opinion is perfectly consistent with these basic subrogation principles. Here, Travco paid sums of money under its insurance policy for Dayle's funeral expenses, medical expenses, and damage to her wrecked car. Majority op., . As these items of damages were incurred between the time of the tortious act and Dayle's death, they properly belong to the estate and could be asserted as part of a survival action under Wis. Stat. § 895.01(1). Weiss v. Regent Props. Ltd., 118 Wis. 2d 225, 233, 346 N.W.2d 766 (1984).
. As such, there is no doubt that Travco obtained a subrogation right in claims belonging to the estate to the extent it made payment to or on behalf of the estate. However, the estate did not bring a survival action in this case; rather, the plaintiffs brought an action for wrongful death, claiming the above damages as well as losses stemming from the deprivation of society and companionship of their mother under § 895.04. Had the estate instead brought a cause of action, Travco's subrogation rights would certainly be contingent upon the estate being made whole for its damages.
. While a "wrongful death action is separate and distinct from the survival action[,]" id., Wis. Stat. § 895.04(5) allows those bringing a claim for wrongful death to recover medical and funeral expenses. Further, Wis. Stat. § 895.04(6) allows a wrongful death plaintiff to "waive and satisfy the estate's cause of action" as part of a settlement agreement. Thus, § 895.04 allows the plaintiffs to essentially stand as proxies for the decedent's estate by allowing them to assert and control claims that properly belong to the estate.
. As noted, a subrogated interest is not an independent claim, but instead represents part ownership of the subrogor's claim against the tortfeasor. Because of its payments to or on behalf of the estate, Travco owns part of the claims that the plaintiffs are able to assert and control by virtue of § 895.04. In essence, as a result of § 895.04, Travco has the same relationship with the plaintiffs (to the extent they are able to assert and satisfy claims belonging to the estate) as it would with the d
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