00-2984 Kavelaris v. MSI Ins. Co.

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The trial court denied CGLI’s subrogation claim because Kavelaris would not totally recover his full damages under Wisconsin’s “made whole” doctrine if the CGLI subrogation claim prevailed. We affirm the trial court order denying the CGLI subrogation claim and the judgment.

MSI agreed to pay its policy limits of $200,000 to Kavelaris in exchange for a complete release and dismissal of the negligence claims against Luepke. Kavelaris accepted the offer contingent upon CGLI waiving its subrogation claim because he would not be made whole by accepting $200,000 and then deducting the CGLI claim, leaving him with less than $70,000. It is undisputed that Kavelaris has not been made whole within the meaning of Rimes.

Because CGLI’s ERISA plan is an insured plan under an insurance policy regulated by Wisconsin insurance law, the ERISA savings clause applies and ERISA does not preempt the Wisconsin Rimes “made whole” doctrine. Because CGLI is an acknowledged insurance company, the deemer clause is not applicable. We conclude that the CGLI policy must comply with the Wisconsin “made whole” insurance regulation.

Affirmed.

Recommended for publication in the official reports.

Dist II, Waukesha County, Hassin, J., Snyder, J.

Attorneys:

For Appellant: Thomas H. Koch, Milwaukee

For Respondent: Laurence J. Fehring, Milwaukee