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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER
19, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1150-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT I
COMMUNITY
CREDIT PLAN,
Plaintiff-Respondent,
v.
NATIONAL
INSURANCE ASSOCIATION,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Milwaukee County: LAURENCE C. GRAM,
JR., Judge. Reversed and cause
remanded with directions.
Before
Sullivan, Fine and Schudson, JJ.
PER
CURIAM. National Insurance Association
(National) appeals from the trial court's summary judgment in favor of
Community Credit Plan (Community).
National argues that Community waived its claim for subrogation by
failing to intervene in the lawsuit between National and its insureds, Cenoria
and Richard Golden. Pursuant to this
court's order dated May 11, 1995, this case was submitted to the court on the
expedited appeals calendar. See Rule 809.17, Stats. We conclude
that Community waived its subrogation rights.
Accordingly, we reverse and remand with directions for the trial court
to enter summary judgment in favor of National dismissing this action.[1]
The
Goldens purchased a used automobile from Best Motors, Inc., for $5795. Community agreed to finance the
vehicle. As a condition of the
financing, the Goldens were required to purchase liability insurance. They obtained insurance from National. About five months after the car was
purchased, it was destroyed in an accident.
The
Goldens commenced an action to recover under their insurance policy after
rejecting a settlement offer made by National.
Community did not assert its subrogation rights in the action between
the Goldens and National. The trial
court awarded the Goldens $2900 after a trial to the bench. After obtaining judgment against National,
the Goldens attempted to settle with Community for $1800, the amount of the
award remaining after costs and attorney fees were paid. Community rejected the offer, having
commenced a separate action against the Goldens for nonpayment on the
underlying loan. Community eventually
obtained a judgment against the Goldens for the amount remaining due on the
loan.
After
obtaining judgment against the Goldens, however, Community initiated this
action against National seeking the amount National had already paid to the
Goldens. The trial court granted
summary judgment in favor of Community.
Summary
judgment allows controversies to be settled without trial where there are no
disputed material facts and only legal issues are presented. In re Cherokee Park Plat, 113
Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct. App. 1983). On review of a summary judgment order, we
employ the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315,
401 N.W.2d 816, 820 (1987). We first
examine the pleadings and affidavits to determine whether a claim for relief
has been stated. Id. If a claim for relief has been stated, we
then determine whether any factual issues exist. Id. If
there is no genuine issue as to any material fact, and if the moving party is
entitled to judgment as a matter of law, we will affirm the trial court order
granting summary judgment. Id.
National
argues that the trial court erred in granting summary judgment in favor of
Community. National contends that
Community waived its subrogation rights by failing to intervene in the
proceedings between National and the Goldens, choosing instead to proceed
separately against the Goldens. We
agree.
A
party who fails to assert its subrogation rights against an insurer, relying
instead on a reimbursement clause in its contract with the insured, waives its
right to subrogation. Jindra v.
Diederich Flooring, 181 Wis.2d 579, 596, 511 N.W.2d 855, 859
(1994). In Jindra, the
supreme court explained that "[o]ne may waive subrogation explicitly in
writing, or one may be held to have waived subrogation by conduct." Id. The court stated:
If, as
here, a party does not bring a subrogation claim because it relies instead upon
a reimbursement clause, it will be held to have waived subrogation in favor of
the reimbursement action and will be precluded from bringing the subrogation
claim in a subsequent action against the tortfeasor. Accordingly, [the tortfeasor] will be obliged to pay full
damages, but ... will not be forced to answer twice in damages.
Jindra, 181 Wis.2d at 596-97, 511 N.W.2d at 860.
Like
the underinsured motorist insurer in Jindra, Community chose to
rely on its contract with the Goldens rather than assert its subrogation
rights. Where "a party does not
bring a subrogation claim because it relies instead upon a reimbursement
clause, it will be held to have waived subrogation in favor of the
reimbursement action and will be precluded from bringing the subrogation claim
in a subsequent action." Id. Community waived its right to subrogation by
its conduct. Accordingly, the trial
court erred as a matter of law in entering summary judgment in favor of
Community. National will "not be
forced to answer twice in damages."
Id., 181 Wis.2d at 597, 511 N.W.2d at 860. We reverse and remand with directions for
the trial court to enter summary judgment in favor of National dismissing the
action.
By
the Court.—Judgment reversed
and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.