*1 and Cross- WILMOT, Plaintiff-Respondent Donald Cross-Petitioner, Appellant COUNTY, Defendant-Appellant-Petitioner, RACINE CALDEDONIA, Mutual OF Wausau The TOWN Company, a domestic Insurance White, and John Harvey Shebesta corporation, Cross-Respondents, Defendants-Respondents HEALTH DRIVER’S AREA TRUCK MILWAUKEE Trust, Express FUND and WELFARE & Defendants-Respondents, MOKRY, Defendant. M. Harold Supreme Court February Argued 1986. Decided November No. 84-1753. 13, 1987. 917.) (Also reported in 400 N.W.2d *2 For the defendant-appellant-petitioner there were by briefs Joan M. Korb and Racine County Corporation Counsel, Racine, argument by and oral Joan M. Korb. plaintiff-respondent
For the cross-appellant and. cross-petitioner and a by there was brief Robert E. Schoone, McManus, Hankel, Hankel Ware & Fortune, S.C., Racine, argument by and oral Robert E. Hankel. the defendants-respondents
For by there was a brief Goldberg, Daniel E. Hope K. Olson of the firm of Previant, Uelmen, Gratz, Goldberg, Bruegge- Miller & man, S.C., by Milwaukee argument and oral Daniel E. Goldberg. CALLOW,
WILLIAM G.
J. This is a review of a
published decision of the
appeals,
court of
Wilmot v.
County,
(Ct.
limit David Wilmot and his Milwaukee Area Truck Driver’s Health and Welfare Express Trust. The issue on review is whether an injured party subrogee may and his or her up separately governmental liability limit provided 893.80(3), by sec. Stats. Because find we subrogee’s rights are not from those of the subrogor, 893.80(3) we conclude that sec. does not permit subrogee subrogor separately. to recover We therefore reverse the decision of the court of appeals. (Wilmot)
On June Donald Wilmot suf- injuries fered as a result of an automobile accident. *3 The details of the accident are not relevant to the and, determination therefore, of the issue on review we omit them. Pursuant to a health and welfare plan, Milwaukee Area Truck Driver’s (Health Express Health and Welfare Fund and Trust Fund) totaling payments $26,496.63 made to cover the expenses by medical incurred Wilmot as a result of payments, the accident. Because of these the Health subrogated Fund became to Wilmot’s claim for dam- ages.1 February 7, 1983, On Wilmot commenced an
1According pleadings, policy to the the under which the paid expenses provides, Health Fund perti Wilmot’s medical in part: nent hospital, medical, dental, pharmaceutical "In the event that or
optical you your dependents... services is furnished to or [sic] negligence another, by such service is necessitated reason of the Cooperative subrogated dependents’ you your the shall be or right recovery against persons organizations responsible or furnishing the act which in results the of such services and charge given. you reasonable for service so Neither your dependents any jeopardize right.” nor shall do act to such
59 action driver the other automobile (Mokry) Family insurer, and his American Mutual Company, county, county Insurance Racine Racine Rohner, Sheriff Robert Town Caledonia and its Company, insurer, Harvey Wausau Mutual Insurance Shebesta, White, John and the Health Fund.
The Health Fund as was named defendant in the subrogated arising action because its interest out of payments medical made the benefit of Wilmot. stipulated However, Wilmot and the Health Fund any recovery that the of the interest Health Fund in by made Wilmot was excluded as an issue at trial and following
towas be determined the trial court negligence trial of Furthermore, action. Sheriff party prior Rohner was dismissed as a to trial pursuant parties’ stipulation. Mokry’s insurer settled with Wilmot and was released before trial. jury Mokry
A trial in was held which was found percent causally negligent, county per- causally negligent, percent cent and Wilmot 5 causal- ly negligent. jury negligence found no on the Harvey Caledonia, White, Town of John jury Shebesta. The further $125,000 found that would compensate properly personal injuries. Wilmot for his Additionally, the court determined that Wilmot sus- expenses $29,773.62 tained $51,206.30 medical past earnings. loss of *4 denying court, The trial in a series of motions county, made Racine refused to limit Racine county’s aggregate liability to Wilmot and the Health pursuant 893.80(3), $50,000, Fund to a total of to sec. granted judgment Instead, Stats.2 the court to Wilmot 893.80(3), Stats., provides, 2Section pertinent part: plus against County $50,000, in the amount of Racine against Mokry costs, to the Health Fund and plus County $25,171.70, Racine in the amount of against Harvey Shebesta, All claims John costs.3 White, Caledonia, the Town of and Wausau Mutual Company were dismissed. Insurance appeals judgment The court of affirmed the regarding decision, circuit court. The court’s county’s liability, upon the extent of Racine was básed "plain language” interpretation of the of sec. court’s 893.80(3), Stats., which limits amount recoverable against governmental by "any person” subdivision appeals $50,000. court of noted that this court although that, a husband’s claim for medical had held expenses consortium is derivative from his and loss of predecessor personal injury wife’s claim under the 893.80(3), distinct, sec. the two claims are governmental up to the statuto- and each ry recover According Wilmot, 128 2d at 148. limits. Wis. person court, the Health Fund constituted a because statutes, the Health Fund was entitled to under the subrogated expenses separately its medical County. 21, Id. at 147-48. On March from Racine petition granted county’s this court review. any damages, by any "The amount recoverable against any any
injuries
on tort
...
or death in
action founded
corporation, governmental
agency
political
subdivision or
therof
officers, officials, agents
employes
or
for acts
their
agency
capacity
or in the course of their
or
done
their official
proceeded against jointly
severally,
employment,
or
shall
whether
$50,000.”
not exceed
$25,171.70 represents
3The Health Fund’s award of
behalf,
payments
by the
Fund on Wilmot’s
medical
made
Health
negligence.
percent contributory
less Wilmot’s 5
*5
granting
county’s petition,
In
Racine
we limited
appeals
our review to whether the court of
erred in
ruling that Wilmot and the Health Fund could recover
separately up
county
$50,000
to
under
893.80(3),
sec.
Stats. Our determination of this issue
involves the construction of a statute in relation to a
particular
question
set of facts and is
a
thus
of law.
Nordness,
State v.
2dWis.
Under
"[t]he
sec.
amount recov-
any
any damages, injuries
erable
or
any
against any
death
action
on
founded
tort
...
governmental
...
subdivision
shall not
exceed
previously
$50,000.”
interpreted
This court has
this
applying
statutory
section as
limitation "to each
person asserting
damages regard-
a
action for
separate
less whether the cause of action is
independent
or
but derivative.” Schwartz v.
Milwaukee,
295,
54 Wis. 2d
279, 285,
It is not as the Health Fund entity claiming against government find that each person” subdivision "a under the law. Schwartz and Wood make it clear that not must each claimant person” "abe but each claimant must also have a *6 independent separate action, or deriva- be it of cause tive. that, virtue of its
The Health Fund contends separately subrogee, it a interest as 893.80(3), against county sec. Stats. We under person” recognize Fund is "a under that the Health dispositive question Thus, is whether the the statute. separate subrogee, Fund, as a has a cause the Health independent action, it or derivative. of be subrogation previously a held that under We have legal rights subrogee or claims of succeeds to the Garrity (subrogor). v. Rural Mutual See another Co., 253 512 N.W.2d Insurance subrogee steps into the a is one who shoes Thus subrogor payment it as a to the extent has made of the subrogation However, the actionable event. result of subrogee rights greater than the on the confers no subrogor subrogation. Id. the time of the had at identity Accordingly, is not of a cause of action the subrogation, changed by new cause of and no the thereby. 16 Couch on Insurance See action is created (Rev. 1983). acquires Thus, one where 61:37 ed. 2d sec. separate right subrogation, right by is not a that a subrogor. right by the the held action from cause of subrogated therefore, interest conclude, that the We separate a not constitute Fund does of the Health of action. cause Johnson, 61 this court We note that Heifetz (1973), 120, 211 characterized 2d N.W.2d
Wis.
subrogee
subrogor
"[e]ach
as
interests of a
part
liability
own[ing] separately
actually
of
a
might sug-
language
Although such
the tort-feasor.”
separate
subrogee’s
gest
a
constitutes
claim
that a
893.80(3),
purposes
sec.
of
of action for the
cause
Stats., the
further
court
noted that "it is better
Heifetz
assignee
part
to think of the insurer
an
as
of
added).
(emphasis
agree
claim." Id.
We
with this latter
characterization of the insurer’s interest as
part
However,
owner of a
claim.
as noted
893.80(3) requires
person bring-
earlier, sec.
that the
ing
governmental
the action
subdivision
Wood,
be the owner of a
action. See
The of court reliance our conclusion may expenses that a husband recover medical loss of consortium inwas error because this court has recognized legal obligation that the husband a has to pay expenses4 medical and that the loss of consortium spouse is his loss.5 Unlike a who has a separate but derivative cause of action for medical expenses consortium, of loss the claim of a subrogee, separate. derivative, while is not
By ap- the Court.—The decision of the court of peals reversed, is and the cause is remanded to the Seitz, 282, 295-96,
4 See Seitz v.
35 Wis. 2d
5 Peeples
Sargent,
SHIRLEY S. majority agree reaches, I with the result but majority’s disagree on with the reliance the cause concept. clearly This court has never indicated action by it "cause of action” the context what means limiting municipal liability1 has, tort the statute opinions, adopted helpful prior a more method in its analysis that masked use of the cause of is its language. separately I forth the action write set effectively analysis that think the has em- I court employ ployed faced and should continue to when question calculating the amount of dam- with ages recover under sec. a is entitled to 893.80(3), Stats. place begin the words of sec. is with
893.80(3). simply $50,000 "[t]he limits to The statute concept already heavily burdened
1"Cause action” perform many contexts. What constitutes must tasks various depend purpose concept on of action which said, Supreme As Court is invoked. the United States has *8 thing purpose one and "A 'cause of mean one for action’ something for another .... At times and in certain different contexts, infringement right it is of a or the identified with contexts, duty. At in other it is a violation of a other times and remedies, being concept identity of the of the law of cause dependent or the Another then on that of the form of action writ. remedies, something aspect separate writs reveals it as from grievance group operative a has of facts out of which developed. itself to the that the This court has not committed view phrase susceptible any single will be is of definition that governed.” independent or of the context of the relation be (1933). 62, 67-68 Co., Memphis 288 U.S. States Cotton Oil United (1979). Passman, 442 237-40 U.S. See also Davis v.
65 by any person any damages, amount recoverable injuries any or death action on founded tort against” municipality. a The statute uses the word phrase "action,” action,” not the "cause of and not the phrase person "a who has a cause of action.” The question compa- in this is whether the case ny person seeking damages is a to recover in an action against municipality. on founded tort a concept interpret The use of the cause action to Milwaukee, 893.80(3) sec. can be traced to Schwartz v. 286, 195
54 Wis. 2d N.W.2d In that case the suing court held resulting a husband loss consortium personal injuries from the wife’s in an damages up automobile accident could recover to the statutory limit, while his wife could also recover damages up statutory person- maximum for her injuries al an suffered in automobile accident. In reaching this conclusion the Schwartz court said that "apply it asserting $25,000 would limitation to each damages regardless
a cause of action for indepen- whether the cause of action split-off dent or derivative as another cause of action.” Wis. 2d at 295. This is the language appears from Schwartz that in Wood v. (1986), Milin, 397 N.W.2d 479 "key where it is characterized as to the court’s interpretation approval of the statute.” Quoted with slip opinion page at at 62. appears court, however,
The Schwartz to have rejected interpre- the notion that the statute should be by resorting ted to the niceties of a action analysis. Immediately preceding the cause of action language quoted above, the Schwartz court said: "No [imposing doubt these sections a limitation on recov- ery municipality] from could have been written so
66 apply the limitation would to a action and encompass split-off within one limitation the causes consequential damages. present The broad lan- guage of these sections not to does seem reach that result. ... These statutes refer to the amount each recovery, many is limited in his not how injuries, accidents or 54 causes action.” Wis. 2d at 295. analysis actually
The
the court
undertook in
Schwartz was to examine the nature of the husband’s
sought compensa-
consortium interest
for which he
put
tion. 54
it,
Wis. 2d at 293. As a later case
"loss
injury
spouse
consortium is a direct
to the
who has
Peeples
Sargent,
lost
consortium.”
v.
77 Wis. 2d
(1977). Accordingly
612, 643,
interests an action founded on against municipality. tort Both the husband and up statutory wife could recover maximum.2 majority attempts to determine whether the company’s claim this case constitutes a cause of action which from the insured’s decided, inquiring 2 Since Schwartz was other cases into the abjured nature of loss of consortium have Schwartz’s use of the concept derivative, of cause of action and fine distinctions between independent, Lunder, causes of action. In White v. comparative court where this had to decide whether under negligence recovery statute a husband’s for loss of consortium and expenses by negligence medical would be discounted not his negligence, but also his wife’s this court noted that the cases discussing the nature of a claim loss of consortium were Lunder, 563, 574, 225 "confusing.” v. White 442 N.W.2d (1975). Co., Wangen 260, 316, 294 See also Ford 2d Motor Wis. N.W.2d 437 *10 Nevertheless,
claim.3 the does not define majority of cause action and must in the end rely on an interest analysis.4 is, The interest analysis in this how- case ever, buried the discussion separate cause of concept. action
The majority resolves this case by building upon the case which described the compa- insurance Heifetz ny subrogee as "an assignee part of of a claim.”5 The moves from majority description this to the conclusion that "one part who owns of a only claims does not own a separate cause of action from the owner of the other majority
3The
uses the terms "claim” and "cause of action”
throughout
opinion.
its
This court described "claim for relief’ as
equivalent
the substantial
of "cause of action” in Tamminen v.
Co.,
Casualty Surety
Aetna
&
109 Wis. 2d
in case be this can an analysis of the of the interests insured the company in the context of the issues in involved each case. municipality’s
The insured’s claim is on based the duty breach care due which interfered with the property. in insured’s interests The insur- company’s claim, hand, ance on the other rests on the subrogation. purpose subrogation doctrine of is prevent being unjustly the insured from enriched. subrogation the Under company, doctrine of the insurance (in subrogee, steps into the shoes whole part) or in of the insured and receives all or of the go money that would to the in insured the absence of subrogation. points majority "subrogation out,
theAs confers greater rights subrogee subrogor no on the than the subrogation.” Majority opinion had at the time of the page explained subrogee 63. This court has that rights succeeds to the of the insured as follows: Wrensch, 105, 6 Lambert v. Wis. 135 2d 399 369 N.W.2d
69
"Subrogation
upon
equitable princi-
rests
one,
volunteer,
ple
pays
other than a
who
wrong
permitted
of another should be
to look
wrongdoer
paid
to the extent he has
and be
subject
wrongdoer.
to the defenses of the
...
Subrogation
putting
has also been described as
one
particular right
legally belong
whom
does not
position
legal
right.
of the
owner of the
right
Insofar as a new
created
favor of the
subrogee,
original right
'the
measures the extent of
Co.,
right.'" Garrity
the new
v. Rural Mut. Ins.
77
(1977) (citations
Wis. 2d
omitted).
512
N.W.2d
Applying this
analysis
the interests
insured and the insurance company,
this court held in
Johnson,
111,
v.