01-2168 Heritage Mutual Insurance Co. v. Graser

Listen to this article

“As our discussion of the case law makes clear, the collateral source rule operates where subrogation exists as a means to hold the tortfeasor entirely responsible for the damages caused by his or her conduct. Anderson and Koffman, which applied the rule to allow awards of medical expenses, must be read in the context in which that public policy arises, namely, personal injury actions.

“The case before us is not a negligence action. There is no tortfeasor (or tortfeasor’s insurer) before us to hold accountable or who stands to benefit from the medical payments made by WHO on behalf of Graser. Not surprisingly, our research has uncovered no case law, and Graser cites to none, that holds an insurer’s subrogated claim can revert to the plaintiff-insured in an action to recover under a UIM policy. Therefore, we concur with Heritage’s position that the policy of deterrence is not furthered by allowing Graser to recover medical expenses under her UIM policy. The UIM carrier’s contract is not with Fisher and would have no penal effect on her. Graser fails to overcome the proposition that there is no reason to invoke the collateral source rule to ‘punish’ an underinsured motorist carrier. Instead, the $154,782.48 payment covers exactly what she contracted for with Heritage-compensation for actual damages without any consideration to the collateral source rule.”

Judgment affirmed.

Recommended for publication in the official reports.

Dist II, Waukesha County, Foster, J., Brown, J.

Attorneys:

For Appellant: Willard P. Techmeier, Milwaukee; David J. McCormick, Milwaukee

For Respondent: Arthur P. Simpson, Milwaukee; Gary D. Lippow, Milwaukee