Subrogation; collateral source rule
Where an insurer expressly waived its subrogation rights against a party, the collateral source rule applies, and the insured can recover the entire jury award. “Subrogation is ‘the substitution of the insurer in place of the insured, to whose rights, the insurer succeeds in relation to the debt and gives to the substitute all the rights, priorities and remedies of the insured, for whom the insurer is substituted.’ Fischer v. Steffen, 2010 WI App 68, ¶7, 325 Wis. 2d 382, 783 N.W.2d 889, aff’d, 2011 WI 34, ___ Wis. 2d ___, 797 N.W.2d 501 (citing Lee R. Russ & Thomas F. Segalla, 16 Couch on Insurance 18, 222:5 (3d 2005)). Put simply, the right to stand in place of Blumenfeld was precisely what Country Mutual gave up when it signed an agreement stating that ‘Blumenfeld specifically reserves all his rights against Erie Insurance and Ebony Jeans.’ It then reserved the right to be reimbursed ‘[i]n the event Clifford Blumenfeld obtains a recovery … from Ebony Jeans.’ It gave up its rights with regard to any recovery from Erie (Luther Wray’s insurer) entirely.”
Recommended for publication in the official reports.
2010AP1773 Blumenfeld v. Jeans
Dist. II, Racine County, Mueller, J., Brown, J.
Attorneys: For Appellant: Murray, Michael S., Milwaukee; Cerjak, Michael J., Milwaukee; For Respondent: DuMez, Robert I., Kenosha; O’Connor, John V., Kenosha